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FRANK E. STULZ AND HARRIET C. STULZ v. WALLACE E. BOSWELL (02/23/82)

submitted: February 23, 1982.

FRANK E. STULZ AND HARRIET C. STULZ, H/W
v.
WALLACE E. BOSWELL, HERBERT P. LEVINE, STANTON GRELLER AND CAST METAL MANUFACTURING COMPANY AND METAL & ALLOYS, CORPORATION. APPEAL OF WALLACE E. BOSWELL, STANTON GRELLER AND CAST METAL MANUFACTURING COMPANY



NO. 1778 Philadelphia, 1981, Appeal from the Judgment of June 23, 1981 of the Court of Common Pleas of Northampton County, Civil, Law, No. 1978-C-4684.

COUNSEL

Donald P. Russo, Bethlehem, for appellants.

John Field Oldt, Easton, for appellees.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Mcewen

[ 307 Pa. Super. Page 517]

We here consider an appeal from a judgment in the amount of $7,011.95 entered in favor of the plaintiff-appellees. We affirm.

Appellees commenced this action by means of a complaint filed on December 28, 1978, in which they sought to recover accounts receivable which were assigned to them in connection with the sale in 1973 by the appellees to the appellants

[ 307 Pa. Super. Page 518]

    of the stock of Cast Metal Manufacturing Company (Cast Metal). On February 8, 1979, appellants filed an answer and new matter in which they denied the claims pleaded in the complaint and on February 28, 1979, appellees filed a reply to new matter. A pre-trial conference was held on August 28, 1979, at which time appellants asserted a set-off of $4,400.00 against the claims of appellees. The appellants petitioned the court on September 10, 1979, for permission to file an amended answer in order to specifically plead the set-off as new matter to which appellees filed an objection. The learned President Judge Alfred T. Williams, Jr., ruled as follows:

AND NOW, this 7th day of November 1979, after conference with counsel and consideration of the defendants' petition to file an amended answer and counterclaim, the court will permit the original defendants to file an amended answer properly pleading the alleged set-offs to the various charges or accounts set forth in the complaint within 20 days from this date. The petition to file a counterclaim with respect to other matters or unrelated causes of action is denied.

Pursuant to this order, the appellants filed an amended answer and new matter on December 13, 1979, in which they averred that appellees had breached warranties in the 1973 agreement of sale and in which they listed forty items as setoffs. The majority of items were related to credits for the return of defective products that were sold prior to the change of ownership, but the appellants also alleged set-offs for salesmens' commissions earned prior to the sale of the corporation, costs related to a transmission repair to a company truck, credit card charges, taxes and the cost of Christmas gifts.

Appellees filed preliminary objections in the nature of a motion to strike on the ground that the majority of items set forth in the appellants' amended pleading had no relation to the claims made by the appellees and that, therefore, the amended answer and new matter violated the ...


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