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HOLIDAY LOUNGE v. SHALER ENTERPRISES CORPORATION (01/07/71)

decided: January 7, 1971.

HOLIDAY LOUNGE, INC., APPELLANT,
v.
SHALER ENTERPRISES CORPORATION



Appeal from decree of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1970, No. 2741, in case of Holiday Lounge, Inc. v. Shaler Enterprises Corporation.

COUNSEL

Sidney Baker, with him Krause & Baker, for appellant.

Richard A. Zappala, with him Zappala & Zappala, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the decision of this case.

Author: Roberts

[ 441 Pa. Page 202]

The gravamen of appellant's argument is that a decree should be vacated when preliminary objections to

[ 441 Pa. Page 203]

    a complaint in equity are sustained, and the complaint is dismissed within the ten-day period allowed for amendment as of course, without transferring the matter to the law side or allowing the complainant the opportunity to amend. We affirm the chancellor's decree dismissing the complaint.

Appellant, Holiday Lounge, Inc., filed a complaint in equity on June 17, 1970, requesting only a preliminary injunction until final hearing, and a permanent injunction thereafter, enjoining appellee, Shaler Enterprises Corporation, from evicting Holiday Lounge, Inc., from appellee's premises when the five-year lease between the parties terminated on June 30, 1970. The chancellor set a date for a hearing on the request for preliminary injunction. On June 24, 1970, prior to the scheduled hearing, appellee-landlord filed preliminary objections, alleging, among other things, appellant-tenant was guilty of laches and had an adequate remedy at law. Those objections were argued at the time of the hearing, and on June 26, 1970, the chancellor dismissed appellant's complaint solely because of laches.

Appellant first alleges that the chancellor erred in dismissing the complaint without affording appellant the opportunity to amend. This argument is based on Rule 1028(c) of the Pennsylvania Rules of Civil Procedure which provides for the filing of an amended pleading "as of course" within ten days after service of a copy of preliminary objections. Rule 1028(c) is made applicable to equity actions by Rule 1501.

Our research has not uncovered any prior judicial interpretations of Rule 1028(c) on this issue. However, we cannot conceive that the draftsmen of the Rule intended to have it operate in a situation such as is now presented to this Court. Otherwise, no chancellor could ever dispose of preliminary objections to an equity complaint until ten days had lapsed from the service of the objections. Clearly, the opportunity to amend

[ 441 Pa. Page 204]

"as of course" provided for in Rule 1028(c) is available only when there has been no intervening judicial determination of the validity ...


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