No. 03482 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Delaware County, Civil Division, at No. 81-14962.
Joseph F. Mulcahy, Jr., Chester, for appellants.
Matthew S. Donaldson, Jr., Media, for appellee.
Spaeth, President Judge, and Brosky and Cirillo, JJ. Spaeth, President Judge, files a dissenting opinion.
[ 336 Pa. Super. Page 562]
This appeal is from the dismissal of appellants' counterclaim in a civil action. Appellants argue only that it was error for the trial court to treat on the merits, at that early stage of the proceedings, the preliminary objections to the counterclaim. As a general proposition of law, appellants are correct. However, due to the type of preliminary objection which was considered by the trial court -- a demurrer
[ 336 Pa. Super. Page 563]
-- we conclude that the general rule is not applicable sub judice.*fn1 Affirmed.
The relevant procedural history of this case can be briefly summarized. Appellants obtained a credit card from appellee and subsequently received bills for charges which they denied having incurred. Appellants did not pay this bill. Upon notification appellee is alleged to have agreed to drop the charges in question from appellants' bill but subsequently they reinstated the charges. Eventually appellee brought an action seeking to recover the unpaid sum in question and appellants counterclaimed. The counterclaim sought compensation for impairment to appellants' credit rating and mental anguish caused by harassing phone calls received at home and at work. In addition appellants stated that they were entitled to payment for the legal expenses incurred in the defense of appellee's suit. Appellee responded to the counterclaim by filing a preliminary objection, claiming that appellants had not stated a cause of action; which the trial court sustained by dismissing appellants' counterclaim. This appeal is taken from that dismissal.*fn2
Appellants argue that the trial court committed reversible error in ruling on appellee's preliminary objection at that stage of the case. They rely upon the Pennsylvania Supreme Court case of Broido v. Kinneman, 375 Pa. 568, 101 A.2d 647 (1954). Broido held that when a case contains a counterclaim, preliminary objections should not be decided
[ 336 Pa. Super. Page 564]
against one of the parties before the case has gone to the fact finder and only one judgment disposing of all the claims should be entered.
In a case such as this, where the claim and counterclaim both grow out of one and the same contract or transaction, it is inexpedient for a court to pass preliminarily with finality upon the claim of one of the parties before disposing of the case as a whole by the entry of one all-conclusive final judgment. To proceed otherwise would be likely to bring about a piecemeal disposition of reciprocal claims involved in one action with an extension of the litigation through added arguments and appeals, attendant postponement of the ultimate final result and consequent ...