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decided: June 6, 1979.



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.

Author: Price

[ 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 argues that counsel for a party may properly verify a petition in certain circumstances. We agree.

Pa.R.C.P. No. 206 states:

"Every petition and answer containing allegations of fact which do not appear of record shall be verified by affidavit."

The comment to that rule indicates that the provisions for verification continue to be controlled by the Act of April 9, 1915, P.L. 72, § 1, 12 P.S. § 514. Upon inspection, however, this latter section refers only to the extent of the court's jurisdiction to entertain a petition, not to the form of the

[ 266 Pa. Super. Page 554]

    petition itself. Confronted with this dearth of guidance pertaining to the valid verification for a petition, we turn to Pa.R.C.P. No. 1024 regulating the proper form of verification for pleadings.

It is true that the provisions of Rule 1024 are not directly applicable to petitions, because it explicitly addresses itself solely to pleadings, and a petition is not a pleading within the ambit of Pa.R.C.P. No. 1017(a).*fn2 Nevertheless, we see no reason why practice regulating a matter as common and collateral to all proceedings as verification should not be uniform in all cases. This view has been universally urged by Pennsylvania legal writers and has been explicitly accepted by several lower courts. E. g., Yanofsky v. Bannacker, 46 D & C2d 435 (C.P. Philadelphia 1969); Revlon, Inc. v. Keystone Discount Stores, Inc., 10 Lebanon Co.L.J. 12 (1964); Keen v. McIlvaine, 9 Chester Co.L.J. 42 (1959); Shenango Valley Transportation Co. v. Stokes (No. 1), 87 D & C 486 (C.P. Mercer 1954); 1A Anderson, Pennsylvania Civil Practice § 206.7 (1976); 1 Goodrich-Amram 2d §§ 206:2, 206:4.1 (1976). Moreover, this court has previously found Rule 1024 controlling in these instances by implication. See Safeguard Investment Company v. Davis, 239 Pa. Super. 300, 361 A.2d 893 (1976); Borteck v. Goldenburg, 87 Pa. Super. 602 (1926); Safety Banking and Trust Co. v. Conwell, 28 Pa. Super. 237 (1905). In Safeguard, for example, we were confronted with a petition to strike off or open judgment which had been dismissed by the lower court. The appellee contended, inter alia, that the petition was properly dismissed because the affidavit on one of the petitions involved was signed by petitioner's counsel rather than by the petitioner himself. In rejecting this claim, we held:

[ 266 Pa. Super. Page 555]

"While this affidavit does not technically comply with Pennsylvania Rules of Civil Procedure 1024 (even though Page 555} signing by a party's attorney is permitted in some circumstances), and is not to be condoned we deem this error to be inconsequential, and certainly not prejudicial in the instant case." Id. 239 Pa. Super. at 305-06, 361 A.2d at 896 (emphasis added).

So as to make explicit the unstated premise of this finding in Safeguard, we hold that the form of affidavits to petitions should be construed with reference to Pa.R.C.P. No. 1024.

Turning now to Rule 1024, it states in pertinent part:

"(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated upon his own knowledge and the reason why the verification is not made by a party."

In suitable circumstances, therefore, "any person having sufficient knowledge or information and belief" may verify a petition. It seems clear to this court that an attorney qualifies as "any person." Pa.R.C.P. No. 1002 does not demand a contrary result. That rule states: "Any act other than verification required . . . to be done by a party may be done by his attorney." (emphasis added). This only forbids an attorney from doing what a party must do; it does not prohibit him from doing what any person may do under the Rules. See 1 Goodrich-Amram 2d § 1002:1 (1976). Because any person may verify a pleading, and by extension a petition, an attorney has the power to do so in suitable circumstances.*fn3 We must emphasize, however, that counsel

[ 266 Pa. Super. Page 556]

    may verify only in those cases in which the conditions delineated in Rule 1024 are present.

Again, we have implicitly accepted this proposition in prior cases. In both Borteck and Safety Banking, we affirmed the lower court's dismissal of a petition verified by petitioner's counsel. In each case, however, our action was premised on a failure to comport with the technical rules governing the contents of the affidavits; we made no per se assumption that petitioner's counsel could not verify the petition if done properly. In Safeguard, moreover, we specifically rejected an argument that a verification was defective solely because of counsel's signature. We thus find that the court below erred in dismissing the petition for this reason.

Nevertheless, the court below further noted that the verification was defective apart from this question by virtue of its failure to strictly comport with the language of Rule 1024. While there was indeed a formal error in the verification, we find that it was de minimis. Specifically, Rule 1024 requires that the petitioner must be without sufficient "knowledge or information" before another is permitted to sign in his stead. Instantly, while the affidavit recited that appellant lacked sufficient knowledge to make verification, it did not allege that appellant was also without sufficient information to do so.*fn4 To dismiss a petition on

[ 266 Pa. Super. Page 557]

    such a point, however, would be contrary to both the design of verification and our numerous holdings in other areas viewing substantial compliance as a sufficient standard. Verification is necessary to defend a party against spurious allegations; it must not be transformed into an offensive weapon designed to strike down an otherwise valid petition. While we do not, of course, condone willful noncompliance with our procedural rules, a hypertechnical reading of each clause, and a blind insistence on precise, formal adherance, benefits neither the judicial system nor those utilizing that system. As we reiterated in Safeguard, "'. . . courts should not be astute in enforcing technicalities to defeat apparently meritorious claims; . . . .'" Safeguard Investment Company v. Davis, supra, 239 Pa. Super. at 306, 361 A.2d at 896, quoting West Penn Sand & Gravel Company v. Shippingport Sand Company, 367 Pa. 218, 223, 80 A.2d 84, 86 (1951).

Thus, at a bare minimum, a court confronted by a defective verification should grant leave to amend before dismissing the petition.*fn5 See, e. g., Dallmeyer v. Giroux, 65 D & C 2d 250 (C.P. Adams 1974). Such action is not instantly necessary because the error was here inconsequential and certainly not prejudicial. It would not be in the best interests of judicial economy to remand the matter for

[ 266 Pa. Super. Page 558]

    the sole purpose of effecting a miniscule and purely formal amendment.*fn6

The order of the court below is therefore reversed, and the court instructed to issue on Monroe a rule to show cause why the judgment for want of an answer should not be opened or stricken.

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