Custer v. Shutes

In this action in trespass, plaintiffs’ complaint filed January 27, 1971, contains three counts. On March 2, 1971, defendants filed an answer which puts at issue each of the allegations of the complaint. Thereafter, on March 22, 1971, defendants filed preliminary objections in the nature of a demurrer to the second count of the complaint. Plaintiffs have not questioned the propriety of the filing of those objections. The issue sought to be raised thereby is the right of one who alleges he has suffered personal injury to bring an action against a defendant who has not caused any physical impact to be inflicted upon him.

Although it may be desirable that the question thus sought to be raised should be decided preliminarily, we are of the opinion that the orderly framing of issues *494requires that rules of pleading be observed. Even though Pennsylvania Rule of Civil Procedure 1020(c) permits the alternative pleading of causes of action and defenses, such alternatives as are proper should be set forth within that time allowed for the filing of appropriate pleadings under the rules. “When a case is at issue the time for further pleadings is past”: Ross v. Holt, 24 Fayette 16, 20 (1960); 2 Anderson Pa. Civ. Prac. §1017.4. In this case the time for further pleading expired when the answer of March 2, 1971, was filed of record.

Accordingly, we now, of our own motion, strike defendants’ preliminary objections from the record. It is so ordered.