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DEL BORING TIRE SERVICE v. BARR MACHINE (03/06/81)

filed: March 6, 1981.

DEL BORING TIRE SERVICE, INC.,
v.
BARR MACHINE, INC., APPELLANT, V. LOADER LEASING, INC.



No. 426 April Term, 1979, Appeal from Order of the Court of Common Pleas of Indiana County, Divil Division, No. 1388 CD 1978.

COUNSEL

Wayne A. Kablack, Indiana, for appellant.

Gary C. Horner, Johnston, for Del Boring, appellee.

Robert W. Lambert, Indiana, on brief for Loader Leasing, Inc., appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Cercone

[ 285 Pa. Super. Page 69]

This is an appeal by Barr Machine, Inc. from an order of the Court of Common Pleas of Indiana County sustaining in part the preliminary objections of Loader Leasing, Inc. to Barr's third party complaint joining Loader Leasing as an additional defendant to an original action brought by Del Boring Tire Service, Inc. against Barr Machine, Inc., original defendant. Barr presents us with the question of whether the principle of res judicata prevents it from asserting a claim against Loader Leasing as additional defendant identical to one raised by Del Boring against Loader Leasing, in an action to which all three were parties, and decided in Loader Leasing's favor.

The instant litigation involves a dispute over who is liable for payment for three tires delivered by Del Boring to Loader Leasing. Del Boring filed a complaint in assumpsit in two counts against Loader Leasing and Barr on June 16, 1978. Loader Leasing and Barr filed preliminary objections to the original complaint which was then amended by Del Boring pursuant to Rule 1028 of the Rules of Civil Procedure. To the amended complaint Barr filed two preliminary objections: the first in the nature of a demurrer, the second a demand for a more specific pleading. Loader Leasing demurred to the amended complaint contending it failed to state a cause of action. On November 2, 1978, the court sustained Loader Leasing's demurrer and dismissed count two of the amended complaint, which had alleged Loader Leasing's sole liability to Del Boring. There was no appeal from the November 2 order. By order of the same date, the court rejected Barr's preliminary objections and required it to file an appropriate pleading within twenty days. Barr timely filed its answer and new matter. At the same time it filed a complaint against Loader Leasing as an additional

[ 285 Pa. Super. Page 70]

    defendant, alleging inter alia the latter's sole liability to Del Boring and contending that Loader Leasing was unjustly enriching itself at Barr's potential expense. Loader Leasing objected preliminarily to the third party complaint against it based on its belief that the third party action was prohibited by the doctrine of res judicata. The court sustained the preliminary objection insofar as it extended to the issue of Loader Leasing's sole liability but permitted the joinder as to the issues of joint and several liability and liability over. From the order of April 9, 1979, dismissing its complaint in part Barr brought the instant appeal.

We begin our discussion by noting that as a general rule an order which sustains preliminary objections and dismisses the complaint is final and hence appealable. See Catanese v. Scirica, 437 Pa. 519, 263 A.2d 372 (1970); Love v. Temple University, 422 Pa. 30, 220 A.2d 838 (1966). Furthermore, when the time for appeal has elapsed the matter becomes res judicata such that it cannot be subsequently attacked under normal circumstances.*fn1 Estate of Gasbarini v. Medical Center of Beaver, 487 Pa. 266, 409 A.2d 343 (1979); Love v. Temple University, supra.

The court's order of November 2, 1978, sustaining Loader Leasing's demurrer to the amended complaint was never appealed. Nor have we been presented with any argument questioning its validity. At this juncture we must deal with that order as valid ...


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