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EDWARD J. ENCELEWSKI AND HELEN ENCELEWSKI v. ASSOCIATED-EAST MORTGAGE CO. (12/29/78)

decided: December 29, 1978.

EDWARD J. ENCELEWSKI AND HELEN ENCELEWSKI, APPELLANTS,
v.
ASSOCIATED-EAST MORTGAGE CO., FIRST PENNSYLVANIA MORTGAGE TRUST, ASSOCIATED ADVISERS, INC., ASSOCIATED MORTGAGE COMPANY, RIDGELEY P. WARE, INDIVIDUALLY, ROBERT B. WELCH, INDIVIDUALLY, AND NORMAN ATHERTON A/K/A NORMAN ROBERTS, INDIVIDUALLY, AND T/A QUALITY HEATING AND ENGINEERING COMPANY, APPELLEES



No. 1047 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Northampton County, at No. 264, May Term, 1974. Civil Action-Law

COUNSEL

Samuel A. Litzenberger, Quakertown, for appellants.

John S. Hollister, Jr., Philadelphia, for appellees, except Norman Atherton.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 262 Pa. Super. Page 207]

This appeal followed an order by the lower court which sustained the preliminary objections of appellees and dismissed the complaint as to all the appellees except Norman Atherton. We affirm the order of the lower court in part and reverse and remand in part.

On appeal, appellants contend, inter alia, that the lower court erroneously dismissed the complaint against individual appellees Ware and Welch*fn1 and corporate appellees

[ 262 Pa. Super. Page 208]

First Pennsylvania Mortgage Trust and Associated Advisers, Inc.*fn2 We find these contentions to be without merit.

However, with respect to appellants' contention that the lower court erroneously dismissed the complaint against corporate appellees Associated Mortgage Company and Associated-East Mortgage Co., we must agree. Associated Mortgage Company and Associated-East Mortgage Co. failed to raise the issue of lack of personal jurisdiction in their preliminary objections to appellants' complaint. In light of this fact, the defense of lack of jurisdiction over the parties was waived, and not properly before the lower court when it considered the preliminary objections of all appellees (except Norman Atherton). The lower court's order dismissing appellants' complaint against Associated Mortgage and Associated-East Mortgage is therefore in error. We reverse the order of the lower court with respect to Associated Mortgage and Associated-East Mortgage, and remand to the lower court for further proceedings consistent with this decision.

The case arises from a $450,000 construction mortgage loan by appellee Associated-East Mortgage Co. to Bancorporation of America, of which appellants are owners of a

[ 262 Pa. Super. Page 209]

    forty-nine percent interest. Appellants alleged that Associated-East acted as agent for servant of, or in joint partnership with, the other three named corporate appellees. Appellees ...


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