Appeal, No. 47, March T., 1950, from order of Court of Common Pleas of Jefferson County, Oct. T., 1947, No. 35, in case of Richard C. Brown et ux. v. T. W. Phillips Gas and Oil Company. Order reversed.
Raymond E. Brown, with him John L. Wilson, Rolland L. Ehrman and Donald J. Dennison, for appellant.
Marvin D. Power, Francis J. Mottey and Margiotti & Casey, for appellees, submitted a brief.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE JONES
This appeal raises two questions with respect to the lower court's exercise of its discretion (1) in permitting the plaintiffs, over the defendant's objection, to discontinue the action and (2) in refusing the defendant's motion for judgment in its favor after the court had sustained preliminary objections to the plaintiffs' complaint. The facts giving rise to these questions reveal an unusual course of procedure.
The plaintiffs, self-averred citizens and residents of Indiana County, Pennsylvania, brought this action in trespass in the Court of Common Pleas of Jefferson County to recover damages for loss by fire due to negligence of an alleged agent of the defendant company, a Pennsylvania corporation. They filed an original and an amended complaint to each of which the defendant answered responsively and denied the agency of its employe in the matter in question. The plaintiffs then set the case down for trial. At the conclusion of the evidence for the plaintiffs upon trial of the issues, the defendant moved for a compulsory non-suit on the ground that the evidence adduced by the plaintiffs failed to establish agency on the part of the defendant's allegedly negligent employe. In order to escape an involuntary non-suit, the plaintiffs moved for the withdrawal
of a juror. Counsel for defendant not objecting, the court thereupon withdrew a juror and the case was continued.
Thereafter, the plaintiffs filed a second amended complaint. The defendant filed preliminary objections thereto which, by subsequent agreement of counsel for the respective parties, were sustained by order of the court with permission to plaintiffs "to file their third amended complaint." Upon the plaintiffs filing a third amended complaint, to which the defendant also filed preliminary objections. On June 6, 1949, the matter having come on for argument, the court, by agreement of counsel for the respective parties, again sustained the defendant's preliminary objections and granted the plaintiffs permission "to file their fourth amended Complaint within a period of twenty days from the date hereof." However, instead of filing a fourth amended complaint, the plaintiffs instituted suit on the same cause of action in the District Court of the United States for the Western District of Pennsylvania at Pittsburgh under federal jurisdiction made to depend upon alleged diversity of citizenship, the plaintiffs averring therein that they were citizens of Florida although in all of their complaints in the court below in the instant action, up to and including their third amended complaint filed on March 7, 1949, they had averred that they were citizens of Pennsylvania and residents of Indiana County. The defendant company was at all times and still is a corporation of the State of Pennsylvania.
On June 27, 1949, one day after the expiration of the twenty-day period allowed by the court for the plaintiffs' filing of their fourth amended complaint, they filed a motion in the court below for leave to discontinue the suit. The court granted a rule thereon to which the defendant answered ...