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CONTINENTAL BANK & TRUST COMPANY v. A. B. KYLE (11/06/81)

filed: November 6, 1981.

CONTINENTAL BANK & TRUST COMPANY,
v.
A. B. KYLE, APPELLANT



No. 108 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Bucks County, at No. 79-11004-05-1.

COUNSEL

A. B. Kyle, appellant, in pro. per.

Eric Tobin, Doylestown, for appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 292 Pa. Super. Page 190]

This is an appeal from an order denying appellant's preliminary objections challenging the lower court's jurisdiction. Appellant has taken this appeal pursuant to the Act of March 5, 1925, P.L. 23, s. 1, 12 P.S. 672; 42 Pa.C.S.A. 702(a), 742; and Pa.R.A.P. 311(a)(7).*fn1

[ 292 Pa. Super. Page 191]

Appellant's brief suggests three areas where the lower court's jurisdiction was lacking. We need only review two of the three. Appellant's third claim alleges that jurisdiction was lacking because "the complaint shows no obligation to be due." Such a claim contained in a preliminary objection is in the nature of a demurrer and not appealable upon the denial of the preliminary objections. Urbano v. Meneses, 288 Pa. Super. 103, 431 A.2d 308 (1981).

Appellant's remaining arguments are:

I. The Court of Common Pleas was without power to issue process as the complaint was not under its judicial seal; and

II. A deputy sheriff has no power to serve process not issued by a court.

I. Appellant contends that the complaint in the current case was issued by an agent of appellee and not by the Prothonotary of the lower court. Appellant would have us hold that unless the Prothonotary affixes the seal of the court to the complaint, the court is without power to issue process.

Under Pa.R.C.P., Rule 1007, an action in assumpsit may be commenced by filing with the prothonotary a complaint. Under the Rules of Civil Procedure, the plaintiff's initial pleading, a copy of which is served upon the defendant, serves in the "dual capacity of process and pleading." Goodrich-Amram 2d ยง 1007:6. Rule 1008 further requires that the copy of the complaint, to be served upon the defendant, be attested by the prothonotary or sheriff or certified by the plaintiff to be a true copy. Accordingly, a court ...


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