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STEPHEN C. ZIVITZ AND JEAN C. ZIVITZ v. CENTENNIAL ROAD PROPERTIES (01/04/84)

submitted: January 4, 1984.

STEPHEN C. ZIVITZ AND JEAN C. ZIVITZ, H/W
v.
CENTENNIAL ROAD PROPERTIES, INC., MILTON OSTERNECK, ANTHONY BONANNI AND DE CARO PAVING CO. APPEAL OF CENTENNIAL ROAD PROPERTIES INC., APPELLANT



No. 844 Philadelphia, 1982, Appeal from the Order of February 18, 1982 in the Court of Common Pleas of Montgomery County, Civil Division, No. 80-17000

COUNSEL

Benjamin E. Zuckerman, Norristown, for appellant.

John A. Lord, Philadelphia, for Zivitz, appellees.

Herbert E. Squires, Philadelphia, for De Caro, appellee.

Cavanaugh, Tamilia and Hoffman, JJ. Cavanaugh, J., concurs in result.

Author: Tamilia

[ 328 Pa. Super. Page 80]

The sole issue presented in this appeal is whether the lower court properly struck appellant's counterclaim for failure to meet the requirements of Pa.R.C.P. 1031(a) where the counterclaim arose from the allegedly tortious manner in which appellees instituted an assumpsit action against appellant for breach of a construction contract.

Appellees, the plaintiffs below, filed a complaint in assumpsit in the Court of Common Pleas of Montgomery County against, among others, appellant, Centennial Road Properties, Inc., alleging breach of contract in the construction of their house. Therein, appellees alleged that appellant failed to complete the work in a workmanlike manner, failed to adhere to the expressed terms of the contract, and breached various contractual warranties. Appellant filed an answer to the complaint and by way of counterclaim alleged tortious conduct by appellees arising out of the manner of filing the assumpsit action. Appellant, without specificity, alleged that appellees instituted suit against it in an arbitrary and vexatious manner, without valid excuse and in bad faith. In addition, they alleged that the averments

[ 328 Pa. Super. Page 81]

    of appellee were slanderous and libelous to their business reputation. Appellee filed preliminary objections to the counterclaim in the nature of a motion to strike which were sustained by the lower court in an Order dated February 18, 1982. This appeal followed.*fn1

In the interests of judicial economy and prompt judicial resolution of claims, Pa.R.C.P. 1031(a) provides that a counterclaim to an action in assumpsit must meet the following criteria:

(a) The defendant may set forth in the answer under the heading "Counterclaim" any cause of action or setoff which he has against the plaintiff at the time of filing the answer (1) which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's ...


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