Edward C. Leckey, Pittsburgh, for appellant.
John A. Caputo, Pittsburgh, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 266 Pa. Super. Page 552]
The question presented in this appeal is whether counsel for a party may, under certain circumstances, verify a petition. For the reasons stated herein, we hold that he may, and consequently reverse the order of the court below.
The events culminating in this appeal may be briefly summarized as follows. On September 21, 1973, Monroe Contract Corporation (Monroe) filed a mechanic's lien against Harrison Square, Inc. (Harrison Square) at M.L. 446 October Term, 1973. On December 1, 1973, Harrison Square filed preliminary objections to the lien alleging, inter alia, that it was filed in violation of a no-lien agreement. Two days later, Monroe filed a complaint sur its mechanic's lien at No. 2409 January Term, 1974, in which it claimed the sum of $29,576.83 plus interest. In reply, Harrison Square filed substantially the same preliminary objections it had presented against the mechanic's lien.
There were no further proceedings until July 23, 1976, when appellant A. J. Demor & Sons, Inc., filed a petition to intervene on behalf of Harrison Square. The petition was granted and appellant permitted to intervene on August 30, 1976.
On September 30, 1976, Leo Indyk, Monroe's Vice President, was subpoenaed to appear with all of that company's records pertaining to Harrison Square at a deposition of appellant. Mr. Indyk duly appeared on November 9, 1976, but sans records. In response to questions propounded by appellant regarding the records, Mr. Indyk objected to any further inquiries regarding Monroe's lien against Harrison Square.
[ 266 Pa. Super. Page 553]
That same day, appellant filed a motion to withdraw preliminary objections. Pursuant to that petition, the court, per the Honorable Robert Doyle, issued an order withdrawing Harrison Square's preliminary objections and granting appellant ten days after a stipulation being filed or the deposition of Leo Indyk being taken and transcribed, within which to file an answer to Monroe's complaint. It appears from the record that no stipulation was filed, nor was the deposition of Leo Indyk taken or transcribed.
On June 28, 1977, pursuant to Monroe's praecipe for judgment for want of an answer, the prothonotary entered a judgment for Monroe against Harrison Square in the amount of $45,197.84. On July 6, 1977, appellant presented a petition to strike or open the judgment. The affidavit attached to the petition was signed by counsel for appellant.
On July 13, 1977, the court below, per the Honorable Ralph H. Smith, Jr., entered an order which held that the petition of appellant was not duly verified and the court was consequently without jurisdiction to entertain it.*fn1 The decision was predicated chiefly on the assumption that the signing of the verification by counsel contravened our Rules of Civil Procedure. Appellant now ...