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BOYERTOWN OIL COMPANY v. OSAN MANUFACTURING COMPANY (04/08/86)

submitted: April 8, 1986.

BOYERTOWN OIL COMPANY, INC., APPELLEE,
v.
OSAN MANUFACTURING COMPANY, INC., APPELLANT



Appeal from Order of the Court of Common Pleas, Civil Division, of Berks County, No. 233 March, 1983.

COUNSEL

Craig S. Boyd, Boyertown, for appellant.

David L. Allebach, Jr., Pottstown, for appellee.

Cirillo, President Judge, and Rowley and Wieand, JJ. Cirillo, President Judge, files a dissenting opinion.

Author: Wieand

[ 356 Pa. Super. Page 438]

Boyertown Oil Company, Inc. (Boyertown) recovered a partial summary judgment against Osan Manufacturing Company, Inc. (Osan) for the price of oil delivered to Osan on three separate occasions. After the expiration of the appeal period, Boyertown issued execution on its judgment. Osan then attempted to stay the execution until liability for a fourth delivery of oil had been adjudicated. The trial court denied Osan's request, and this appeal followed. We affirm.

The action had been commenced by Boyertown to recover the agreed price of oil delivered to Osan on four separate occasions. After discovery proceedings had been completed, Boyertown filed a motion for partial summary judgment on the basis of admissions made by Osan's president that his corporation owed Boyertown the prices charged for the first three deliveries. The trial court granted the motion and caused judgment to be entered for Boyertown in the amount of $10,666.69. No appeal was filed from the entry of this judgment. After the appeal period had expired, Boyertown issued execution against its judgment debtor. Osan then filed a petition in the trial court asking the court to "clarify" the summary judgment by determining whether it was enforceable before there had been an adjudication of the dispute regarding liability for the fourth delivery and Osan's counterclaim arising out of the fourth delivery. By order dated June 26, 1985, the trial court held that Boyertown's judgment could be enforced and refused to stay execution until after the remaining claim had been adjudicated.

Many years ago the legislature in Pennsylvania provided that a court should have the power to enter judgment in an amount which a defendant has admitted to be due. See: Act of May 31, 1893, P.L. 185, 12 P.S. § 736, suspended by 42 Pa.C.S. § 1722(a)(1); Practice Act of 1915,

[ 356 Pa. Super. Page 439]

Act of May 14, 1915, P.L. 483, § 17, 12 P.S. § 735, suspended by 42 Pa.C.S. § 1722(a)(1). See also: 2 Goodrich-Amram 2d §§ 1037(b):3, (c):2. This power of the court remains extant. Pa.R.C.P. 1037(c) provides that "[i]n all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission." Rule 1037(c), when considered in conjunction with Pa.R.C.P. 1034(b), which authorizes a court to enter judgment "as shall be proper on the pleadings," was held to constitute authority for the entry of a partial judgment on the pleadings for that portion of a claim whose validity was admitted. See: Kappe Associates, Inc. v. Aetna Casualty and Surety Co., 234 Pa. Super. 627, 630 n. 1, 341 A.2d 516, 518 n. 1 (1975). See also: Jeffrey Structures, Inc. v. Grimaldi, 186 Pa. Super. 437, 441-442, 142 A.2d 378, 380 (1958); 2 Goodrich-Amram 2d § 1037(c):2. Rule 1037(c) must also be read in pari materia with Rule 1035, which permits the entry of summary judgment whenever there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. It would be truly anomalous to permit a partial judgment on the pleadings for an amount admitted to be due but not a partial summary judgment if the amount admitted to be due should be contained in depositions or answers to interrogatories. It seems clear, therefore, that the trial court in this case could properly enter summary judgment on one or more, but fewer than all, claims alleged in the complaint.*fn1

In the instant case, Boyertown's complaint stated not a single claim but four distinct claims arising out of four

[ 356 Pa. Super. Page 440]

    separate transactions. They were joined, as permitted by Pa.R.C.P. 1020(a), in one complaint. However, the four causes of action, being separate, might well have been asserted in separate complaints. In that event, Boyertown's right to summary judgments for the amounts due on account of three, separate deliveries of oil would have been clear. The result is not different because Boyertown elected to include the four separate claims in one complaint.

Moreover and in any event, no appeal was ever filed from the summary judgment entered by the trial court in this case. Therefore, the judgment became final after the expiration of thirty days. See: Simpson v. Allstate Insurance Co., 350 Pa. Super. 239, 243-45, 504 A.2d 335, 337 (1986); Hunter v. Employers Insurance of Wausau, 347 Pa. Super. 227, 229-230, 500 A.2d 490, 491 (1985). Any objection to the validity of the judgment was waived by Osan when it failed to take a timely appeal therefrom.

[ 356 Pa. Super. Page 441]

Osan's appeal was taken from the order of June 26, 1985 which permitted enforcement of the judgment and not from the order entering summary judgment. The issue to be decided by this Court, therefore, is whether an unchallenged, final judgment can be enforced before related claims have been finally adjudicated.

"Executions are within the equitable control of the court from which they are issued." Fedun v. Mike's Cafe, Inc., 204 Pa. Super. 356, 360, 204 A.2d 776, 779 (1964), aff'd, 419 Pa. 607, 213 A.2d 638 (1965). See: Sinking Fund of Commissioners of Philadelphia v. Philadelphia, 324 Pa. 129, 135, 188 A. 314, 317-318 (1936). A court's decision to grant or stay execution will not be disturbed absent an abuse of that discretion. Id. Generally, a "court may permit the issuance of an execution on a judgment entered on an admission of the defendant as to a part ...


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