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PAPENCORDT v. MASTERWORK PAINT CO. (11/12/63)

November 12, 1963

PAPENCORDT, APPELLANT,
v.
MASTERWORK PAINT CO.



Appeal, No. 142, March T., 1963, from order of Court of Common Pleas of Allegheny County, July T., 1960, No. 3786, in case of Mary Anna Papencordt, executrix of estate of Joseph W. Link, deceased, v. Masterwork Paint Co. and Serafino Delgrosso. Order reversed.

COUNSEL

Donald E. Ziegler, with him Leonard M. Mendelson, for appellant.

James R. Hornick, for appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 412 Pa. Page 509]

OPINION BY MR JUSTICE ROBERTS

On February 4, 1960, Joseph W. Link sustained damage to his automobile; he filed a trespass action before an alderman and recovered a default judgment against appellees for $130. Appellees appealed to the County Court of Allegheny County and filed a counterclaim for property damage. Link died on May 14, 1960, and appellant was substituted as a party in the county court action.

Appellant petitioned in June, 1960, for the transfer of the initial cause of action to the Court of Common Pleas of Allegheny County, asserting her intention to file a complaint under the Wrongful Death Act and the Survival Act, and alleging that Link's death was caused by the collision of February 4, 1960. The action was ordered transferred (the Prothonotary's certificate of transfer is dated June 20, 1960) and was docketed on the same day at No. 3786, July Term, 1960, in the court of common pleas.

Rather than file a separate action in the court of common pleas, appellant filed a complaint on June 21,

[ 412 Pa. Page 5101960]

, seeking damages under the Wrongful Death Act and the Survival Act at the same number and term of court as the action which had been transferred from county court the preceding day. Appellees, by counsel, accepted service of this complaint, and the matter lay dormant, except for placing it at issue, until March 28, 1963, when appellees petitioned that the case be transferred back to county court. The petition raised the question of the court's jurisdiction over the subject matter of the action. Appellees contended that plaintiff-appellant was limited in her claim to the amount of the judgment before the alderman. The court granted the prayer of the petition and ordered the action transferred. The instant appeal is from that order.

As so frequently happens when the proper procedures are not followed, the legal issues become clouded. We agree with appellees that a separate and distinct action should have been filed by appellant in the court of common pleas and that the new action and the property damage claim which had been transferred should then have been consolidated for trial. In a strictly technical sense, it may be argued that the complaint which was filed in common pleas was an extension of the action begun before the alderman. Although it does not appear that appellees objected to the transfer of the property damage claim from county court to common pleas, the county court should not have ordered the matter transferred to the court of common pleas before any action was pending in the latter court. See Pa. R.C.P. 213.

Appellees do not dispute that appellant had the right to institute wrongful death and survival actions in the court of common pleas and then to have those actions consolidated for trial with the property damage claim. But they now take the ...


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