No. 1902 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Action, Law, No. 74 10515-05-1.
Robert J. Kupits, Doylestown, for appellant.
Ivan J. Krouk, Philadelphia, for Patwardhan, appellee.
Randolph Scott, Warrington, for Title Ins. Corp., appellee.
Price, Wickersham and Lipez, JJ. Price, J., did not participate in the consideration or decision of this case.
[ 294 Pa. Super. Page 130]
Plaintiff, Anna Dechet Patwardhan, entrusted the care and management of her home and various rental properties to the defendant, William Brabant, from November 1973 until June 1974 while she was in Germany. By the time plaintiff returned, her home had been damaged by a serious fire caused by the defendant's negligence; significant items
[ 294 Pa. Super. Page 131]
of personal property had been removed from her home; and various rental receipts, security deposits, insurance proceeds and other funds had not been remitted to her. Plaintiff instituted an action in trespass and assumpsit against the defendant. Since the defendant chose not to defend the action, a default judgment in the amount of $65,056.14 was entered against him. No post trial motions were filed or appeal taken.
Thereafter the plaintiff ordered the issuance of a writ of execution against the defendant and the Title Insurance Corporation of Pennsylvania as garnishee, seeking to attach an escrow fund in the name of the defendant and Kathy Brabant, his wife. This fund arose out of the sale of a property owned by the defendant and his wife as tenants by entireties. After the hearing the court below ordered judgment be entered in favor of the plaintiff and against the garnishee for the sum held in escrow on the grounds: that the funds used to purchase the property, giving rise to the judgment for the plaintiff and against the defendant, were purloined from the plaintiff; and that these funds having been traced into the hands of the garnishee, were therefore available for the purpose of satisfaction of plaintiff's judgment. Defendant appeals. We decide that the failure to join the wife as an indispensable party was a fatal defect.
Pa. R.C.P. Rule 1032 provides:
A party waives all defenses and objections which he does not present either by preliminary ...