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CALLERY ET AL. v. BLYTHE TOWNSHIP MUNICIPAL AUTHORITY (07/01/68)

decided: July 1, 1968.

CALLERY ET AL., APPELLANTS,
v.
BLYTHE TOWNSHIP MUNICIPAL AUTHORITY



Appeal from judgment of Court of Common Pleas of Schuylkill County, Jan. T., 1966, No. 784, in case of Ann Callery et al. v. The Municipal Authority of the Township of Blythe et al.

COUNSEL

W. J. Krencewicz, for appellants.

Ralph M. Bashore, with him Bashore and Lindsay, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 432 Pa. Page 309]

Appellants, owners and occupiers of a dwelling located in Blythe Township, brought a trespass action against the township municipal authority alleging a failure to supply "pure and wholesome water." The authority filed preliminary objections, consisting of a motion to strike, a motion for a more specific pleading, and a demurrer. The latter was predicated upon the authority's assertion that a prior action commenced in 1962 by one of the appellants and concluded adversely to her was res judicata of the present action (commenced in December of 1965). The court below agreed that the res judicata defense was meritorious and thus sustained appellees' demurrer; this appeal was then taken.

I.

Initially, appellants question the propriety of asserting the defense of res judicata by preliminary objections, contending that the proper vehicle is a responsive pleading, i.e., an answer, containing new matter. Such a course is contemplated by Pa. R. C. P. 1030: "All affirmative defenses, including . . . res judicata . . . shall be pleaded in a responsive pleading under the heading 'New Matter'." See also Pa. R. C. P. 1045(b). The rationale for this procedure stems from the fact that a court may not ordinarily take judicial notice in one case of the records in another case even though the case arose in the same court and the contents of those records are known to the court. See, e.g., Naffah v. City Deposit Bank, 339 Pa. 157, 13 A.

[ 432 Pa. Page 3102]

    d 63 (1940). It follows that, unless the circumstances necessary to sustain the plea of res judicata appear on the face of the complaint, the defense must be raised in an answer and not by preliminary objections. See Jones v. Costlow, 354 Pa. 245, 47 A.2d 259 (1946). In Jones, for example, the complaint contained no reference to any prior action between the parties. The answer, however, asserted in new matter the defense of res judicata, placing this issue before the court and compelling the plaintiff to file a responsive pleading upon penalty of admitting the facts alleged in the new matter. See also Thal v. Krawitz, 361 Pa. 178, 63 A.2d 33 (1949).

Appellees rely on two cases in which the affirmative defense of res judicata was successfully asserted via preliminary objections. In the first of these, Kiely v. J. A. Cunningham Equipment, Inc., 387 Pa. 598, 128 A.2d 759 (1957), we expressly stated that plaintiff's complaint made reference to the prior action thus permitting the defense to be raised by preliminary objections. Similarly, the complaint of plaintiff in Fleming v. Strayer, 367 Pa. 284, 80 A.2d 786 (1951), referred to a prior action. The complaint was then amended to delete any reference to the prior suit; we held, however, that the admission of the existence of a prior judgment still appeared upon the face of the record and permitted defendant to assert a res judicata defense in preliminary objections.*fn1 We conclude

[ 432 Pa. Page 311]

    that, since appellants' complaint makes no reference to the prior 1962 action, appellees should have asserted their affirmative defense of res judicata by new ...


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