Advance Building Services Co. v. F & M Schaefer Brewing Co.
384 A.2d 931
Pa. Super. Ct.
1978
Check Treatment

*1 PRICE, J., dissents.

WATKINS, President did not in the Judge, participate or decision of case. consideration this A.2d COMPANY, Appellant, ADVANCE BUILDING SERVICES COMPANY, Appellee. F M& SCHAEFER BREWING Superior Court Pennsylvania.

Submitted June Argued April *2 Sheller, A. Stephen Philadelphia, appellant. Schantz, Allentown, William E. for appellee. WATKINS,

Before Judge, JACOBS, President and HOFFMAN, CERCONE, PRICE, VAN der and VOORT SPAETH, JJ.

JACOBS, Judge: President appeal

This has been taken from the order the lower court, 28, 1977,striking dated December a against entered appellee. Appellant contends that the mo- tion to strike was no improperly granted irregulari- because ties on the face of the record appeared sufficient to justify the lower court’s action. For the below, reasons that appear we affirm. *3 a in

Appellant complaint assumpsit filed on Octo 31, 1974, ber that alleging appellee had breached a contract pursuant to appellant which was to render janitorial services 15, 1974, November appellee. appellee On filed prelimi objections in nary the nature of a motion to strike the a for a complaint, motion more specific complaint and a demurrer. In response, appellant filed an amended com 12, plaint on December 1974.1 Appellee neither new filed to preliminary objections the amended nor complaint set down its original objections for preliminary argument, and 8, 1976, on a April appellant took default in judgment the $70,827.24. 15, 1976, of amount On April filed appellee a to petition open judgment,2 and/or strike the which was granted by Judge Mellenberg. Although complaint the amended was filed without of leave the days appellee filing court or of than consent more ten the of after the preliminary objections, appellee by failing waived this defect to object. 1028(c), See Pa.R.C.P. is, course, petition totally remedy

2. A to strike of a different from a petition open. petition open appropriate alleged to A to is when the irregularity Lipare, a matter involves dehors the record. Matlock v. 167, 169, 503, Pa.Super. (1976), citing Weinberg 243 364 A.2d 504 v. 322, Morgan, Pa.Super. (1958). 186 142 A.2d 310 582

It a motion to strike will not be granted is axiomatic that appears fatal defect in the on the face of judgment unless a Inc., Zambar, 503, v. 446 288 the Malakoff Pa. A.2d record. Co., v. (1972); 819 Cameron Great Atlantic and Pacific Tea 374, Hall (1970); 439 266 A.2d 715 v. West Pa. Chester 561, Co., 37 A. 106 If the (1897). 180 Pa. record is Publishing be the cannot stricken. Fleck v. self-sustaining, judgment 307, 311, 410, (1976); 241 361 A.2d 412 McHugh, Pa.Super. 19, Ehrlich, v. 345 A.2d 224 (1975).3 Policino 236 Pa.Super. objections which preliminary The of have presence defect, not is a fatal disposed apparent been from readily record,4 the of the which is sufficient to the permit face Bureau, a default Fire Adjustment striking (C.P.Phila.1972) D & C Inc. v. 2d aff’d Warhoftig, per This curiam, (1973). 301 A.2d is so Pa.Super. the objections because until have been resolved preliminary manner, is not obligated in some the defendant file an Puntureri, 242 Pa.Super. answer. See Reddick (1976) 1028(d). contends, Pa.R.C.P. Appellant A.2d 1198 however, that its complaint appellee’s origi amended cured that, therefore, nal and there were no preliminary objections at the objections outstanding time preliminary was entered. begs assuming This that argument question by cured the defects to complaint adequately the amended were addressed. appellee’s preliminary objections which or not this is true is a which be question Whether can by the trial court. If the amendment in fact only resolved the lower original complaint, removed all errors in the court *4 preliminary objections prior have dismissed the to the should of a default 2 entry Goodrich prothonotary’s operates to the record. Master 3. motion to strike as a demurrer The Zimmerman, 401, Pa.Super. Homecraft Co. 222 208 A.2d 440 (1966). opinion Although to the court’s refers a letter not contained lower appellee’s appellant in as an that was aware of the record indication complaint, with the amended the existence of out- dissatisfaction objections standing preliminary to can be discerned without resort matters dehors the record. 1028(c):!, 2d at 248. below, Amram defendant Appellee, § the of its option ordering had original preliminary objections for if was down it not satisfied that the argument amend had all of the errors.5 Id. alleged ment cured That did it do so be in may, perhaps, light not criticized of the desirabili streamlining of Be ty pleading practices. that as it may, capable was of appellant equally expediting matters by setting objections the for preliminary argument.6 down See D Brandeis v. Kenny, 31 & C 2d 347 (C.P.Montg.1963). court, neither nor the party,

Since lower had taken any to action the dispose preliminary objections, were they at time outstanding still the the default judgment was Judge entered. MELLENBERG therefore properly struck the judgment.

Affirmed.

SPAETH, J., files a dissenting opinion. WATKINS, former President Judge, did not in participate the consideration or decision of case. this

SPAETH, Judge, dissenting: I find no of record. defect Appellant’s amended com- replaced the If plaint original complaint. appellee wished to to the amended object complaint, it had to file preliminary the objections stating objections; if it had objections, no it to Appellee had file an answer. did neither. It was there- fore in order to appellant for enter on judgment the amend- complaint ed for failure an answer. I should therefore If, hand, errors, on the other the amendment new contains opposing party by filing preliminary objec- must attack them new 1028(c):l, appellee tions. Goodrich Amram 2d at § 249. This did 1, supra. do. not See note by appellant standing proposition by as 6. The cases cited for the that setting preliminary objections argument down the it would have any right judgment inapposite. waived to take a later default are Hodin, (1954) Both Downes v. 377 Pa. 104 A.2d 495 and Russ Pastry Inc., Shoppe, Pa.Super. Soda Fountain Co. v. Victor (1937) plaintiff’s possible A. 376 deal with waiver of a default judgment by electing proceed possibility to trial. Here no of a preliminary objections exists to be waived until the disposed are of. *5 petition open remand consideration of reverse and

384 A.2d Pennsylvania COMMONWEALTH WERTZ, Terry Appellant. Francis Superior Pennsylvania. Court April

Submitted April Decided