427 Pa. 135 | Pa. | 1967
Opinion by
Plaintiff, a Pennsylvania corporation, commenced an action of assumpsit by causing a writ of foreign at
The court below heard argument and, without writing an opinion, dismissed both sets of preliminary objections, with leave to defendant to file an answer to the complaint. Defendant has appealed.
Defendant contends that plaintiff’s preliminary objections alone were before the court for determination and that the court was without power to dismiss defendant’s preliminary objections before allowing defendant to establish those facts. Defendant’s averments that plaintiff, as garnishee, had no property of defendant in its possession by reason of an earlier assignment by defendant of all of its accounts payable, were factual allegations not of record. Accordingly, once the lower court dismissed plaintiff’s preliminary
Pursuant to Rule 1271(1), a defendant may resist foreign attachment by preliminary objections. If the defendant files preliminary objections, the court’s disposition thereof must be the same as when a garnishee raises preliminary objections under Rule 1268. (See Goodricli-Amram, §1271-2.) Rule 1268 requires that preliminary objections be handled exactly like other preliminary objections under Rules 1017 and 1028, and if questions of fact are raised, depositions should be taken in order to properly dispose of the objections. (See Goodrich-Amram, §1268(a)-3.)
The order of the court below dismissing defendant’s preliminary objections is vacated and the cause remanded with instructions to permit plaintiff to file an answer to these preliminary objections and such further proceedings as provided for by the rules.
Order vacated.
Plaintiff named a second garnishee, but the latter was never served.