409 Pa. 338 | Pa. | 1962
Opinion by
This is an action of assumpsit instituted in Cameron County, Pennsylvania, based upon the breach of an implied warranty. The defendant, being an unregis
Within twenty days, the defendant filed a motion to quash the service of process and to dismiss the action,
The defendant then filed preliminary objections to the complaint in the nature of a demurrer
The basic question for decision is the timeliness of defendant’s raising of the jurisdictional question in the court below.
This Court recently decided that service of process in Pennsylvania upon an unregistered foreign corporation under the provisions of the Business Corporation Law, supra, may be legally made only in an action arising out of an act or omission of such corporation within the territorial confines of the Commonwealth. The mere fact that the harm occurred within the Commonwealth is not sufficient: Rufo v. Bastian-Blessing Co., supra, n.3. It is quite clear from a reading of the complaint in the instant action that the acts or omissions complained of did not occur in Pennsylvania. However, it is just as clear that the jurisdictional question was not raised in a proper manner and, as a result, the defendant lost its right to object to the court’s jurisdiction over its person.
Rule 1017 of the Pennsylvania Rules of Civil Procedure provides for the filing of preliminary objections to a complaint. Such a pleading should be all inclusive and may contain jurisdictional objections; a motion to strike off or for a more specific statement; a demurrer; a defense of lack of capacity to sue; pendency of a prior action; nonjoinder of proper parties or misjoinder of the cause of action. In other words, this rule entails the proper procedure by which the defendant may preliminarily assert at one and the same time questions of jurisdiction, as well as errors of form and substance in the complaint.
The salutory and main purpose of the rules is to reduce the number of dilatory steps (so prevalent and perfectly proper under prior existing rules of procedure), which the defendant may now take advantage of prior to filing an answer on the merits of the action and thus expedite the reasonable disposition of the litigation.
But, we must also always bear in mind that procedural rules are not ends in themselves, and that above and beyond everything else they are to be construed in a manner to the end that justice may be administered. See, Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 159 A. 2d 692 (1960). Further, pleadings, including pre
When the defendant filed the original preliminary objections in this case, which objected only to the substance and form of the complaint, and none of which raised a jurisdictional question, this constituted a general appearance in the action. See, Pellegrini v. Roux Distributing Co., Inc., 170 Pa. Superior Ct. 68, 84 A. 2d 222 (1951); Bailey v. Ancient Egypt. Arabic Order Nobles of the Mystic Shrine of North and South America, 162 Pa. Superior Ct. 5, 56 A. 2d 311 (1948); Jeannette Borough v. Roehme, 197 Pa. 230, 47 A. 283 (1900); Byers v. Byers, 208 Pa. 23, 57 A. 62 (1904); Riker v. Kilinski, 309 Pa. 188, 163 A. 526 (1932) ; and, Delco Ice Mfg. Co. v. Frick Co., Inc., 318 Pa. 337, 178 A. 135 (1935). A demurrer to a complaint on the ground that it does not set forth a valid cause of action does not raise a jurisdictional question: Guzek v. Empire Wholesale Co., 396 Pa. 78, 151 A. 2d 470 (1959). It is fundamental that where a defendant enters a general appearance, he waives his right to assert thereafter any possible objection that may exist to jurisdiction over his person. Welser v. Ealer, 317 Pa. 182, 176 A. 429 (1935) and Miller v. Cockins, 239 Pa. 558, 87 A. 58 (1913). This basic rule has not been modified by the Pennsylvania Rules of Civil Procedure. See, Goodrich-Amram, § 1017 (b) -7.
Order affirmed.
This practice is not proper under present procedural rules. Such an attack should be made the subject of a preliminary objection. See, Goodrich-Amram, §1013 (b)-6; 2 Anderson Pa. Civ. Pract, pp. 433 & 434.
The objection in the form of a demurrer was later withdrawn.
Under Rufo v. Bastian-Blessing Co., 405 Pa. 12, 173 A. 2d 123 (1961), infra.
As pointed out hereinbefore the additional objections were filed without leave of court or consent of the plaintiff.