Advance Building Services Co. v. F & M Schaefer Brewing Co.
Advance Building Services Co. v. F & M Schaefer Brewing Co.
Opinion of the Court
This appeal has been taken from the order of the lower court, dated December 28, 1977, striking a default judgment entered against appellee. Appellant contends that the motion to strike was improperly granted because no irregularities appeared on the face of the record sufficient to justify the lower court’s action. For the reasons that appear below, we affirm.
Appellant filed a complaint in assumpsit on October 31, 1974, alleging that appellee had breached a contract pursuant to which appellant was to render janitorial services for appellee. On November 15, 1974, appellee filed preliminary objections in the nature of a motion to strike the complaint, a motion for a more specific complaint and a demurrer. In response, appellant filed an amended complaint on December 12, 1974.
The presence of preliminary objections which have not been disposed of is a fatal defect, readily apparent from the face of the record,
This argument begs the question by assuming that the amended complaint adequately cured the defects to which appellee’s preliminary objections were addressed. Whether or not this is true is a question which can be resolved only by the trial court. If the amendment in fact removed all errors in the original complaint, the lower court should have dismissed the preliminary objections prior to the prothonotary’s entry of a default judgment. 2 Goodrich
Affirmed.
. Although the amended complaint was filed without leave of the court or consent of appellee more than ten days after the filing of the preliminary objections, appellee waived this defect by failing to object. See Pa.R.C.P. 1028(c), 1033.
. A petition to strike is, of course, a totally different remedy from a petition to open. A petition to open is appropriate when the alleged irregularity involves a matter dehors the record. Matlock v. Lipare, 243 Pa.Super. 167, 169, 364 A.2d 503, 504 (1976), citing Weinberg v. Morgan, 186 Pa.Super. 322, 142 A.2d 310 (1958).
. The motion to strike operates as a demurrer to the record. Master Homecraft Co. v. Zimmerman, 208 Pa.Super. 401, 222 A.2d 440 (1966).
. Although the lower court’s opinion refers to a letter not contained in the record as an indication that appellant was aware of appellee’s dissatisfaction with the amended complaint, the existence of outstanding preliminary objections can be discerned without resort to matters dehors the record.
. If, on the other hand, the amendment contains new errors, the opposing party must attack them by filing new preliminary objections. 2 Goodrich Amram 2d § 1028(c):l, at 249. This appellee did not do. See note 1, supra.
. The cases cited by appellant as standing for the proposition that by setting down the preliminary objections for argument it would have waived any right to later take a default judgment are inapposite. Both Downes v. Hodin, 377 Pa. 208, 104 A.2d 495 (1954) and Russ Soda Fountain Co. v. Victor Pastry Shoppe, Inc., 125 Pa.Super. 452, 190 A. 376 (1937) deal with the plaintiff’s waiver of a possible default judgment by electing to proceed to trial. Here no possibility of a default judgment exists to be waived until the preliminary objections are disposed of.
Dissenting Opinion
dissenting:
I find no defect of record. Appellant’s amended complaint replaced the original complaint. If appellee wished to object to the amended complaint, it had to file preliminary objections stating the objections; if it had no objections, it had to file an answer. Appellee did neither. It was therefore in order for appellant to enter judgment on the amended complaint for failure of an answer. I should therefore
Reference
- Full Case Name
- ADVANCE BUILDING SERVICES COMPANY, Appellant, v. F & M SCHAEFER BREWING COMPANY, Appellee
- Cited By
- 29 cases
- Status
- Published