decided: July 12, 1978.
MARIO DELGROSSO, APPELLEE,
GAETANO GRUERIO, APPELLANT
No. 1202 October Term, 1977, Appeal from the Order dated January 5, 1977, of the Court of Common Pleas of Delaware County, Civil Action - Law at No. 75-13223.
Timothy F. Sullivan, Media, for appellant.
Bernard P. Carey, Jr., Lansdowne, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 562]
This appeal is taken from the dismissal of appellant's preliminary objection filed on September 15, 1976 and from the reinstatement of appellee's default judgment in an action for an alleged default on a written lease. The lower court held that appellant's preliminary objection violated Pennsylvania Rules of Civil Procedure 1028(b) and (d) in that they were serial in nature and, in any case, were not lodged within the twenty-day period allowed by the court for the filing of a responsive pleading. Because we agree that the preliminary objection was filed after the twenty-day period had expired, we affirm.
Appellee, Mario Delgrosso, filed a complaint on September 10, 1975 seeking recovery of rent allegedly due from appellant. On November 5, 1975, appellee obtained a default judgment due to appellant's failure to file a responsive pleading. Damages in the amount of $2,400 were assessed by the prothonotary.
Appellant then filed, on December 29, 1975, a petition to strike and/or open the default judgment. In support of the motion to strike, appellant alleged that appellee failed to attach a copy of the written lease to the complaint as required by Pa.R.C.P. 1019(h). The petition to open averred that appellant had a meritorious defense in that Garrett Sauna, Inc., rather than appellant individually, was the lessee. In accordance with Delaware County Rule 653,*fn1 appellant attached to the petition to strike and/or open, a copy of the pleading desired to be filed -- in this case preliminary objections in the nature of a motion to strike and in the nature of a demurrer.*fn2
[ 255 Pa. Super. Page 563]
Due to surgery undergone by appellee's attorney, oral argument on the matter was not heard until August 26, 1976. Judge Rita E. PRESCOTT entered an order the next day -- August 27th -- opening the default judgment and dismissing the proposed preliminary objections*fn3 because appellee had furnished appellant with a copy of the lease; she therefore considered the preliminary objections to be moot. The order further directed appellant "to file a responsive pleading to Plaintiff's complaint" within twenty days from August 25, 1976.*fn4
The proposed preliminary objections attached to appellant's petition to strike and/or open the default judgment were never filed of record. Indeed, they could not be filed until the petition to open was granted on August 26, 1976. Prior to that time the default judgment entered on November 5, 1975 was still in effect and the pleading were not open.*fn5 When the trial judge caused a copy of the written lease to be attached to the complaint at the hearing held on August 26, 1976, appellant's proposed preliminary objections were indeed rendered moot. The defect to which they pointed was remedied by the amendment of the complaint.*fn6
[ 255 Pa. Super. Page 564]
We disagree, however, with the lower court's holding that the preliminary objection in the nature of a demurrer*fn7 filed by appellant on September 15, 1976 violated Pa.R.C.P. 1028(b).
Rule 1028(b) requires all preliminary objections to be raised at one time. As previously stated, however, no preliminary objections had been filed or served as of September 15, 1976. In addition, prior to the amendment of the complaint on the court's own motion on August 26, 1976, the written lease was not in the record. If, as here, the amendment reveals a new error not appearing in the original complaint, the defendant may file a new preliminary objection in order to raise the matter. 2 Goodrich-Amram 2d § 1028(c): 1, at 249 (1976). It was only at the time the complaint was amended that appellant could reasonably have been expected to file a preliminary objection on the ground that the lease named Garrett Sauna, Inc., rather than appellant, as the lessee. In the instant case, therefore, appellant acted permissibly in filing a preliminary objection in the nature of a demurrer.*fn8 The question then becomes whether the preliminary objection was filed in a timely manner.
The lower court's order, entered on August 27, 1976, gave appellant twenty days from August 25, 1976 to file a responsive pleading. There is no hint in the record as to why the lower court chose this date as the time from which the twenty-day period was to run. The lower court opinion
[ 255 Pa. Super. Page 565]
written by Judge LABRUM cites Pa.R.C.P. 1028(d)*fn9 and goes on to state laconically that, "We feel that the Defendant has failed to comply with Judge Prescott's Order and has acted in direct violation of Rule 1028(a) and (c) [sic]. . . ." It is difficult to ascertain the basis for this conclusory ruling. As we have seen, the preliminary objection filed by appellant was a proper responsive pleading. It may be then, that the preliminary objection was dismissed because it was filed twenty-one days after August 25th and thus violated Judge PRESCOTT's order of August 27, 1976.
We find Rule 1028(d) to be inapposite.*fn10 It applies only when preliminary objections are overruled, whereas here none had been filed as of the date of the court's order dismissing as moot appellant's proposed preliminary objections.*fn11 We believe rather, that Rule 1026 should be applied. The rule requires that, "Every pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading . . . ." Pa.R.C.P. 1026. Rule 1003, however, provides that, "The court on cause shown may extend or shorten the time within which pleadings shall be filed . . . ." Pa.R.C.P. 1003 (emphasis added). Thus the twenty-day period set forth in Rule 1026 may be shortened by the court as Judge PRESCOTT did here.*fn12 September
[ 255 Pa. Super. Page 56614]
, 1976 was the last day for filing a responsive pleading according to the court's order of August 27, 1976. See Pa.R.C.P. 106. Appellant's preliminary objection, which was filed on September 15, 1976, thus violated the order.
Accordingly, the order of the lower court reinstating the default judgment is affirmed.