No. 2465 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Lancaster County at No. 97 May Term 1978.
Daniel H. Shertzer, Lancaster, for appellants.
Christopher S. Underhill, Lancaster, for appellee.
Cavanaugh, Wickersham and Cirillo, JJ. Cirillo, J., files a dissenting opinion.
[ 301 Pa. Super. Page 155]
On May 12, 1978 William and Barbara Moore filed a complaint in trespass in the Court of Common Pleas of Lancaster County against Clabell-Hickory, a general partnership and Clabell Company, a general partnership, defendants. In the complaint it was alleged that the defendants were the operators of a certain apartment complex known as the Village of Old Hickory, in the township of Manheim. Further it was alleged that on June 25, 1976, an agent or employee of the defendants "unlawfully sold a substantial quantity of beer to the plaintiff, William Moore, at the pro shop at the Village of Old Hickory." Further, plaintiffs allege that as a result of said unlawful sale, the plaintiff William Moore became visibly intoxicated, entered the swimming pool area and jumped into the pool resulting in a cervical spine fracture and other injuries.
According to the sheriff's return of service, the complaint was served on May 19, 1978 on one Robert Sowers at 45 E. King Street in Lancaster who was described as "manager" in the sheriff's return. On June 5, 1978 an appearance of counsel was entered by Barley, Snyder, Cooper and Barber "on behalf of the Defendants." On June 30, 1978 an appearance
[ 301 Pa. Super. Page 156]
of counsel was entered by Hartman, Underhill and Brubaker "on behalf of Clabell-Hickory and Clabell Company, Defendants."
On July 14, 1978, an answer was filed by Hartman, Underhill and Brubaker, Esquires on behalf of "Defendants" with an affidavit executed by Clyde W. Horst, who identified himself as "a general partner in Clabell-Hickory and Clabell Company." In the body of the answer so filed, both defendants admitted that they were general partnerships and further that Clabell-Hickory had a place of business at 717 Olde Hickory Road in Lancaster. It was denied, however, that the defendants were the operators of an apartment complex known as the Village of Olde Hickory, Manheim Township. To the contrary, Clabell-Hickory alleged in the answer that it was the owner and the operator of the Olde Hickory Racquet Club only and had no connection whatsoever with the operation of the apartment complex known as the Village of Olde Hickory. It was further alleged that Clabell Company also had no connection with the apartment complex known as the Village of Olde Hickory. Finally it was denied that any employee or agent of "the Defendants" sold beer to the plaintiff William Moore either lawfully or unlawfully on June 25, 1976. In paragraph four of the answer, the defendants opined that "if the Plaintiff obtained beer from anyone on or about June 25, 1976, it was from David Collingwood, who was the golf pro in charge of the Pro Shop at the Village of Olde Hickory Golf Club and who was at the time in question an independent contractor."
On July 24, 1978 plaintiffs William and Barbara Moore, by their attorneys, filed preliminary objections to the defendants' answer alleging that, inter alia, the plaintiffs had filed their complaint on May 12, 1978, which complaint was served on the defendants on May 19, 1978 and that an appearance had been entered "for the defendants" on June 5, 1978 and further that the statute of limitations*fn1 for the action
[ 301 Pa. Super. Page 157]
against the defendants ran out on June 25, 1978 and it was not until July 14, 1978, without leave of court, that the defendants filed an answer to the plaintiffs' complaint "denying that the defendants were the operators or in any way connected with an apartment complex known as the Village of Olde Hickory and denying that the person who sold beer or any other alcoholic beverages to the plaintiff, William Moore, on or about June 25, 1976, was agent of the defendant's." The gravaman of the preliminary objections is found in paragraph six thereof wherein it was alleged that "due to the lapse of time between the service of the plaintiffs' complaint on the defendant and the defendants' answer, the plaintiffs are now ...