Paul A. Liebman, Philadelphia, for appellant.
Michael Brodie, E. Chaiken, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion in which Spaeth, J., joins.
[ 242 Pa. Super. Page 403]
This case can best be described as a procedural nightmare. We conclude that the lower court improperly entered an amended order while an appeal was pending with this court. We will, therefore, vacate the order of June 27, 1975, reinstate the order of June 2, 1975, and remand for an evidentiary hearing.
The facts indicate that on January 7, 1975, plaintiff-appellant filed a suit in assumpsit to collect $2,000.00 in death benefits from defendants-appellees. Appellees filed preliminary objections on February 3, 1975, challenging, inter alia, lack of jurisdiction as a result of improper service of the complaint. Appellant filed an answer on February 19, 1975, and on June 2, 1975, the lower court entered the following order:
"AND NOW, to wit, this 2nd day of June, 1975, it is hereby ORDERED and DECREED that the Preliminary Objections of the defendants are denied on the condition that Plaintiff is to proceed within thirty
[ 242 Pa. Super. Page 404]
(30) days from the date of this Order to serve the relevant parties pursuant to 42 P.S. 8304, et seq., or judgment will be entered in favor of the defendants."
The defendants, appellees herein, appealed this order to our court on June 9, 1975, and filed a Writ of Certiorari on June 10, 1975. On June 27, 1975, while the appeal of June 9 was before our court, the lower court modified the order of June 2, 1975, and entered the following order:
"AND NOW, to wit, this 27th day of June, 1975, it is hereby ORDERED and DECREED that an earlier Order of June 2, 1975, in the captioned matter is vacated and superseded and it is further ORDERED and DECREED that:
"'Defendants' Preliminary Objections are sustained and Plaintiff's complaint is dismissed without prejudice to Plaintiff's proceeding pursuant to 42 P.S. 8304 et seq.'"
This amended order satisfied defendants, appellees herein, and on July 1, 1975, they filed a Praecipe for Discontinuance of their appeal with this court. However, the plaintiff, appellant herein, then filed an appeal to our court, ...