Button v. ButtonButton v. Button
- Reporters:
- , ,
- Before:
- Johnson
On this appeal, we are asked to reconsider the rule regarding the partition of property held as tenants by the entireties, as first set forth in Vento v. Vento, 256 Pa.Super. 91, 389 A.2d 615 (1978), and as later extended in Clingerman v. Sadowski, 335 Pa.Super. 514, 485 A.2d 11 (1984). Appellants urge us to further extend the rule to permit the estate of a deceased spouse to accept a constructive offer for the severance of joint property, based upоn egregious circumstances.
Because we find that appellants have been barred by the doctrine of res judicata from further pursuing their claim for relief, we decline to review the state of the law since Vento in this area, and affirm the trial court’s оrder sustaining preliminary objections.
On June 22, 1987, preliminary objections were filed on behalf of the defendant stepmother, including a demurrer, as authorized by
Of course,
res judicata
must be raised as new matter,
Rather than file a preliminary objection to Paragraph 4 of defendant’s preliminary objection, the Sons filed an “Answer”, setting forth uncertified аllegations of fact concerning the earlier adjudication at No. 89-Equity-1986. By so doing, the Sons waived the right to object to the defendant stepmother’s form of pleading. Duquesne Slag Products Company v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 54 (1980).
We begin our analysis by emphasizing that an appellate court mаy consider only facts which have been duly certified in the records on appeal.
Commonwealth v. Young,
456 Pa. 102, 115, 317 A.2d 258, 264 (1974).
For the defense of
res judicata
to prеvail, it is necessary that between the previous action and the present
Our examination of the original records in Erie County cases No. 89-Equity-1986 and No. 2123-A-1987 satisfies us that the necessary identities for the application of the doctrine of res judicata are, in fact, present. The prayers for relief in both cases are identical, seeking an aсcounting, assignment of funds to the decedent’s estate, an injunction to prevent the defendant from disposing of any of thе decedent’s assets, and an order compelling administration of the decedent’s estate. The plaintiffs and the defendant are identical in both actions, both as to the names and as to the capacity in which the parties suе or were sued.
Although the second cause of áction incorporates a second count, alleging the existence of a 1984 AMC Eagle automobile, we do not find that this in any way enlarges either the thing sued upon, that is, the decedent’s еstate, nor the cause of action. In both actions, the Sons seek to recover what they allege to be the rightful property of their deceased father.
Having found the necessary identities as to the thing sued on, the cause оf action, and the parties to the action as required by
Duquesne Slag Products,
there remains the issue of the finality of judgment in the first case, аt No.
Thereafter, the Sons filed a Notice of Appeal on February 6, 1987, and a Praecipe for Judgment (against themselves) on February 9, 1987. The official docket entries arе clear that judgment was entered, by the Prothonotary, in favor of the defendant, and against the plaintiffs, the Sons, on Februаry 9, 1987.
Our review of the proceedings thereafter in this court compels a conclusion that the judgment entered on February 9,1987 is, in fact, final. A Motion to Quash Appeal was filed at Superior Court docket No. 232 Pittsburgh, 1987 on March 10, 1987 alleging, inter alia, that the aрpeal from the order entered January 6, 1987 was untimely. Before the motion was decided, appellants filed a Voluntary Discontinuance of the appeal, thereby rendering both the order of January 6,1987 and the judgment entered in favоr of the defendant on February 9, 1987 final.
Although we recognized, above, that a decree which merely sustains the preliminаry objections without dismissing the complaint is interlocutory, see Ahrens v. Goldstein, supra, we are here faced with a situation where the parties аgainst whom the objections were sustained proceeded to have judgment entered at, or near, the time when thе appeal was taken and against themselves. We have no difficulty, therefore, in accepting the subsequent vоluntary withdrawal of the appeal at No. 232 Pittsburgh 1987 as finally terminating the action filed at No. 89-Equity-1986 along with the cause of action and the thing sued on therein.
Since we conclude that the most distinguished trial judge, the Honorable George Levin, corrеctly ruled that appellants’ second suit was barred by the doctrine of
res judicata,
we must leave for another day the review and reconsid
The order of December 3, 1987 sustaining preliminary objections is affirmed.