decided: June 21, 1974.
GLOSSERS STORES, INC., APPELLANT (ET AL.)
Appeal from order of Court of Common Pleas of Westmoreland County, April T., 1970, No. 52, in case of Caroline M. O'Barto and Margaret L. O'Barto, Administrators of the Estate of Margaret Schandel Clawson, alias dictus Margaret A. Schandel v. Glossers Stores, Inc., Defendant and Eastgate Center, Inc., Dill Construction Co. and L-D Building Company, Additional Defendants.
W. Arch Irvin, Jr., with him Wayman, Irvin, Trushel & McAuley, and John M. O'Connell, Jr., Thomas J. Godlewski, and O'Connell, Silvis & Godlewski, for appellant.
B. Patrick Costello, with him Costello & Berk, and D. J. Snyder, Christ C. Walthour, Jr., and Costello, Snyder, Berk & Horner, for appellee.
Watkins, P. J., Jacobs, Hoffman, Price, Van der Voort, and Spaeth, JJ. (Cercone, J., absent). Opinion by Hoffman, J.
[ 228 Pa. Super. Page 203]
The issue in this appeal is whether the court below erred in granting the appellee's preliminary objections and striking off the complaint by which the appellant sought to join the appellee as an additional defendant in a trespass action.
The action was instituted by a writ of summons issued by the plaintiff against the original defendant-appellant (hereinafter, Glosser) on April 19, 1970. On May 8, 1970, Glosser filed a praecipe for a writ to join as an additional defendant the appellee (hereinafter, Eastgate).*fn1 The writ was served on Eastgate on June 25, 1970. Counsel for Eastgate entered a written appearance and on June 30, 1971 filed a rule on Glosser to file its complaint. Glosser then ruled the plaintiff to file a complaint which was served on Glosser sometime in early November of 1971. On February 9, 1972, Glosser answered the plaintiff's complaint and filed its complaint against Eastgate.
On March 16, 1972 Eastgate filed and served written interrogatories on the plaintiff which were answered in June. On March 21, 1972 Eastgate answered the original defendant's complaint, denying any liability to the plaintiff. On April 6, 1972 Eastgate filed a complaint to join the L-D Building Co. as an additional defendant. Eastgate then filed preliminary objections
[ 228 Pa. Super. Page 204]
to Glosser's complaint on September 19, 1972. The objections were sustained and appellant's complaint dismissed on October 17, 1972.*fn2
Eastgate contended in the court below that the service of the writ of summons to join it as an additional defendant was defective.*fn3 The argument is based upon Pa. R. C. P. No. 2254(b) which provides:*fn4 "(b) The writ, or a copy of the complaint of the defendant or the additional defendant, if the joinder is commenced by complaint, shall be served by the sheriff in the same manner as a writ of summons within thirty (30) days of commencement of the action to join, unless the time be extended by the court upon cause shown." It is clear that Glosser's service of the writ was not in compliance with the rule. Although several lower court decisions have held that service of the writ beyond the thirty day limit is invalid and creates no jurisdiction over the additional defendant,*fn5 we believe those cases are inapplicable as the appellee submitted to the jurisdiction of the court, thus waiving any objection to the failure to comply with the above quoted rule.
Subsequent to the service of the writ and the filing of Glosser's complaint against it, Eastgate entered an
[ 228 Pa. Super. Page 205]
appearance, answered Glosser's complaint on the merits, filed and served interrogatories on the plaintiff, and attempted to join an additional defendant. By virtue of a 1966 amendment to Pa. R. C. P. No. 1012,*fn6 a written appearance, in and of itself, does not constitute a waiver of the right to raise jurisdictional questions.*fn7 However, when a party takes "some other and further action to the merits" of a case, a waiver may be found. Goodrich-Amram, Standard Pennsylvania Practice, 1973 Supp., p. 188, Commentary to Pa. R. C. P. No. 1012. "[W]here the court finds that a [party] has performed some act which unconditionally accepts the jurisdiction of the court . . .", a waiver will be found. Hohlstein v. Hohlstein, 223 Pa. Superior Ct. 348, 351, 296 A.2d 886 (1972); see also Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A.2d 252 (1965).
In the instant case, appellee's actions, subsequent to the filing of appellant's complaint, clearly demonstrates active participation in the litigation of the lawsuit on the merits. Thus, the appellee has taken that "further action to the merits" which evidenced an intent to forego any objection to the defective service.*fn8 See
[ 228 Pa. Super. Page 206]
Goble v. S. Klein, 430 Pa. 93, 96, 242 A.2d 251 (1968); Crown Construction Co. v. Newfoundland A. I. Co., 429 Pa. 119, 124, 239 A.2d 452 (1968).
Furthermore, the appellee did not file its preliminary objections until seven months after the appellant's complaint had been served with notice to plead. Because preliminary objections are responsive pleadings, they must be filed within twenty days of the preceding pleading,*fn9 or the objection is deemed to be waived.*fn10 Pa. R. C. P. No. 1026, 1032; see also Hohlstein v. Hohlstein, supra at 352. Although late pleadings are often allowed in the interest of justice, [ Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951)], the appellee has offered no just reason to excuse its seven months of inaction during which appellant was led to believe that the appellee was contesting on the merits.*fn11 Under these facts, the appellant has waived any right to object to the defective service.
The order of the court below is reversed and the case remanded with a procedendo.
Order reversed and case remanded with procedendo.