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JOHN P. KAROLY v. JOSEPH E. CAP (04/13/87)

submitted: April 13, 1987.


Appeal from the Order of the Court of Common Pleas, Civil Division, of Lehigh County at No. 83-C-1853.


Joseph E. Cap, in propria persona.

Norman E. Blatt, Jr., Allentown, for appellee.

Kelly, Popovich and Watkins, JJ. Kelly, J., concurs in the result.

Author: Popovich

[ 365 Pa. Super. Page 530]

This is an appeal from the order of the Court of Common Pleas of Lehigh County granting the plaintiff's (John P. Karoly, Jr.'s) preliminary objections to the defendant's (Joseph E. Cap's) New Matter. We affirm in part, quash in part and modify.

[ 365 Pa. Super. Page 531]

The genesis of the present appeal is a Complaint in Assumpsit filed on June 29, 1983, by the plaintiff to recoup monies claimed due and owing for legal services rendered on behalf of the defendant.

Preliminary objections were filed by the defendant and were responded to in the form of an Answer by the plaintiff. In the ensuing three years preceding the defendant's appeal to this Court, the record discloses a veritable onslaught of motions, petitions, orders and various other pleadings relating to the instant case (totaling some 29 in number) that appear to have done nothing more than protract this suit and accomplished little in the way of justice in the process.*fn1

The document which we need to concern ourselves with is the defendant's Answer, filed at the direction of the court below once his preliminary objections to the plaintiff's Complaint were dismissed by order and accompanying opinion dated September 5, 1984.

The Answer filed by the defendant admitted entering into an oral agreement with the plaintiff for legal services, but he asserted the amount agreed upon and already paid for the services performed came to $350.00 and not the $1,030.00 plus 1.5% monthly interest claimed due by the plaintiff.

In the New Matter portion of the defendant's Answer, he claimed that the plaintiff's negligent performance of his services constituted a breach of their agreement and foreclosed the defendant from supposedly recovering damages in excess of $10,000.00 from the individuals who instituted suit against him and against which the plaintiff was hired to defend.

The defendant also alleged that the plaintiff's commencement of suit at the district justice level to have his vehicles

[ 365 Pa. Super. Page 532]

    levied upon, the execution sale of which was prevented by the defendant's appeal to Common Pleas Court and the subsequent invalidation of the levy issued, entitled him to reimbursement of costs ($44.00), payment for his services in defending the suit ($1,562.00) and exemplary damages (in excess of $10,000.00).

By way of further answer, the defendant counterclaimed that the notice of sale of his property (affixed to his residence and published in the local newspapers) was wrongful and malicious because: 1) fraudulent statements were purportedly made in the writ of execution secured by the plaintiff; 2) the notice of sale was without right or legal authority because a writ of certiorari issued by Common Pleas Court supposedly acted as a supersedeas; and 3) the publication of the sale caused the defendant "great mental pain and humiliation and . . . tended to expose[] him to public contempt and ridicule and . . . caused an unfavorable opinion of him to be formed in the minds of the public, all of which [was] the direct, proximate and natural result of the wrongful acts of the plaintiffs [sic] . . . ."

For this asserted "reckless, wanton, irresponsible, wilful and malicious" conduct attributed to the plaintiff, the defendant asked for punitive damages in excess of $10,000.00.

Preliminary objections were filed by the plaintiff and sought, initially, a motion to strike for improper joinder of Peter Karoly, Karoly Law Offices and Karoly and Karoly, P.C. under the counterclaim portion of the defendant's New Matter for the defendant's failure to first seek leave of court to do so, and, in any event, joinder was asserted to be untimely.

Secondly, a motion for a specific pleading was sought as to the defendant's negligence contention. Thirdly, a demurrer to the allegation of abuse of process/malicious prosecution was made on the basis that, inasmuch as the defendant's claim appeared to be premised upon the writ of certiorari staying all proceedings, the Lehigh Local Rule of Court No. 550(b)(3) requiring a bond to be posted was not

[ 365 Pa. Super. Page 533]

    complied with, and, thus, no supersedeas attached to preclude the case from progressing.

Lastly, a motion to strike the "fraudulent" claim of the defendant was asserted because he failed to allege with particularity the factual predicate for the claims as required by Pa.R.Civ.P. 1019(b).

In response to the plaintiff's preliminary objections, the defendant filed an Answer -- this is not foreign to the Pennsylvania Rules of Civil Procedure (e.g., Rule 1017(a)). Thereafter, several documents were presented by the defendant, i.e., Application For Continuance, Petition For The Recusal Of A Judge [Hon. James N. Diefenderfer] and Reply To Petition Seeking Counsel Fees -- the defendant's litigious behavior caused the plaintiff to seek counsel fees in the amount of $410.00 for having to respond to and appear at the various arguments held on the motions, petitions and exceptions filed by the defendant. No disposition seems to have been made as to the request for counsel fees by the plaintiff.

By order dated May 29, 1986, the plaintiff's preliminary objections (which included motions to strike and for improper joinder, motions for a more specific pleading and a demurrer) were granted and the defendant's New Matter was dismissed. Nowhere in the order is there any mention that the defendant was granted leave to amend his New Matter. Defendant thereupon brought this appeal.

At the threshold of our consideration of this appeal we must determine whether and to what extent the order at issue is appealable. Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970).

In assessing whether an order sustaining preliminary objections (be they lodged by a plaintiff, a defendant or an additional party) is final, the standard remains the same and, we believe, is governed by Hudock, supra. There the Court wrote:

As a general rule, an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or entering judgment or otherwise terminating

[ 365 Pa. Super. Page 534]

    the action between the parties is interlocutory and, therefore, lacks the requisite finality to be an appealable order. Where, however, the order does, in effect, terminate the action between the parties, or so restricts the pleader with respect to further amendment of his complaint as virtually to put him out of court on the cause of action he seeks to litigate, it is a definitive and final order and, thus, appealable.

438 Pa. at 276, 264 A.2d at 671 (Citations omitted). Accord Olivieri v. Olivieri, 242 Pa. Super. 457, 364 A.2d 361 (1976) (Appealability of order granting preliminary objections to the appellant's answer, new matter and counterclaim governed by Hudock).

The order of the court below, while granting the plaintiff's preliminary objections to the defendant's New Matter, had the effect of sustaining various motions (i.e., to strike, to strike for improper joinder, for a more specific pleading and a demurrer) of the plaintiff. As such, of necessity, we will look to the substance of the preliminary objections and the content of the New Matter in ...

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