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CHARLES TATE v. ANTHONY MACFARLAND AND SALVATORE DELCIOTTO. APPEAL SALVATORE DELCIOTTO. CHARLES TATE (08/13/82)

filed: August 13, 1982.

CHARLES TATE
v.
ANTHONY MACFARLAND AND SALVATORE DELCIOTTO. APPEAL OF SALVATORE DELCIOTTO. CHARLES TATE, APPELLANT, V. ANTHONY MACFARLAND AND SALVATORE DELCIOTTO



No. 765 Philadelphia, 1981, No. 911 Philadelphia, 1981, Appeals from the Order of the Court of Common Pleas, Trial Division, Civil Section of Phila. County at No. 4628 July Term 1980.

COUNSEL

Lionel B. Gumnit, Philadelphia, for appellant in No. 765 and appellees in No. 911.

Mary L. Schutz, for appellant in No. 911 and appellee in No. 765.

Spaeth, Montgomery and Lipez, JJ.

Author: Spaeth

[ 303 Pa. Super. Page 184]

These are cross appeals from an order entered on Charles Tate's preliminary objections in the nature of a motion to strike Salvatore DelCiotto's answer to Tate's complaint in trespass against DelCiotto.*fn1 Both appeals will be quashed.

In his complaint Tate alleged that he had been injured on September 25, 1978, while repairing the roof of the building at 3617 Haverford Avenue in Philadelphia, and that his injuries were in various ways the result of the negligence of Salvatore DelCiotto, who, he alleged, "owned, maintained and exclusively controlled" the building. The complaint was filed on August 1, 1980, and served on DelCiotto on August 13. An appearance was entered on behalf of DelCiotto the following day but the complaint was not answered until November 21. By then, the statute of limitations had run.

In his answer DelCiotto admitted that he was the tenant of 3617 Haverford Avenue but denied that he owned, maintained or exclusively controlled the premises. The answer included new matter, and on December 10, 1980, Tate filed a reply to the new matter.

On January 28, 1981, Tate filed preliminary objections in nature of a motion to strike DelCiotto's answer. The essence of the preliminary objections is the claim that Tate was prejudiced by the late filing of DelCiotto's answer. In Tate's view, had the answer been timely filed, he would have learned before the statute of limitations ran that DelCiotto did not own 3617 Haverford Avenue, and he would have had time to commence an action against the person who did own 3617 Haverford Avenue. In response DelCiotto alleged that the delay in filing the answer had been with permission, that any confusion concerning the ownership of 3617 was the result of Tate's carelessness in searching the public record, and that in any event, by first filing a reply to the new matter in the answer, Tate had waived the right to file preliminary objections to the answer.

[ 303 Pa. Super. Page 185]

In addition to the pleadings already described, Tate served interrogatories and requests for admission on DelCiotto and also took DelCiotto's deposition. From these proceedings we see the following: The record owner of 3617 Haverford Avenue is Tony DelCiotto, the father of Salvatore DelCiotto. The deed that Tate had believed was the deed for 3617 Haverford Avenue was actually the deed for 3625 Haverford Avenue. However, the deed nowhere states the street address by which the property is known. It is probable that Tate thought that the address was 3617 instead of 3625 because Salvatore DelCiotto is grantee and the deed gives his address as 3617 Haverford Avenue.

In response to this situation, which we think it fair to characterize as a procedural mess, the lower court dismissed Tate's preliminary objections, but granted him leave to amend the caption and allegations of his complaint by deleting the name of Salvatore DelCiotto and substituting the name of Tony DelCiotto as defendant. Tate has appealed from the first part of the order, DelCiotto from the second.

Neither party has questioned the appealability of the lower court's order. This is, however, a question we must always ask, sua sponte if necessary. Aloi v. Aloi, 290 ...


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