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JOSEPH SALERNO AND JULIET SALERNO v. PHILADELPHIA NEWSPAPERS (04/20/88)

submitted: April 20, 1988.

JOSEPH SALERNO AND JULIET SALERNO, APPELLANTS,
v.
PHILADELPHIA NEWSPAPERS, INC. T/A PHILADELPHIA DAILY NEWS, APPELLEE



Appeal from the Order entered May 13, 1987 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 3196 February Term 1983.

COUNSEL

Michael T. Grimes, Philadelphia, for appellants.

Katherine L. Hatton, Philadelphia, for appellee.

Olszewski, Kelly and Hoffman, JJ.

Author: Kelly

[ 377 Pa. Super. Page 85]

This is an appeal from an order of the trial court dated October 8, 1987, granting summary judgment in favor of Philadelphia Newspapers, Inc., defendant/appellee, and against Joseph and Juliet Salerno, plaintiffs/appellants. We affirm.

On February 22, 1983, the plaintiffs instituted this action against Philadelphia Newspapers, Inc., as a result of an article published by the appellee which appeared in the Philadelphia Daily News on August 12, 1982. In their amended complaint, the appellants alleged three causes of action: defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The appellee subsequently filed preliminary objections alleging,

[ 377 Pa. Super. Page 86]

    regarding the falsity of the challenged statements in response to a motion for summary judgment in a defamation action.

I.

In support of their first claim, appellants argue that the lower court was precluded from granting the appellee's motion for summary judgment because the denial of appellee's preliminary objections settled the issues of whether the challenged article was capable of defamatory meaning and whether the pleadings supported causes of action for intentional and/or negligent infliction of emotional distress. The appellants urge that because the earlier ruling held that both causes of action could be sustained upon the allegations in the complaint, the trial court was bound by that prior determination upon review at the summary judgment stage. We cannot agree.

Ordinarily, a trial judge should not place himself in the position to overrule a decision by another judge of the same court in the same case. Melendez v. City of Philadelphia, 320 Pa. Super. 59, 62 n. 2, 466 A.2d 1060, 1062 n. 2 (1983) (citing Duffy v. Gerst, 286 Pa. Super. 523, 429 A.2d 645 (1981)). The purpose of this rule is to ensure a degree of pretrial finality "so that judicial economy and efficiency can be maintained." Commonwealth v. Eck, 272 Pa. Super. 406, 409, 416 A.2d 520, 522 (1979) (quoting Commonwealth v. Griffin, 257 Pa. Super. 153, 157, 390 A.2d 758, 760 (1978)). However, the rule is not intended to preclude granting summary judgment following denial of preliminary objections. "The failure to present a cause of action upon which relief can be granted may be raised at any time. A motion for summary judgment is based not only upon the averments of the pleadings but may also consider discovery depositions, answers to interrogatories, admissions and affidavits." Austin J. Richards, Inc. v. McClafferty, 371 Pa. Super. 269, 276, n. 1, 538 A.2d 11, 14-15, n. 1 (1988). We can discern no reason for prohibiting the consideration and granting of a summary judgment if the record as it then

[ 377 Pa. Super. Page 88]

    stands warrants such action. Cf. DiAndrea v. Reliance Savings and Loan Ass'n, 310 Pa. Super. 537, 543, 456 A.2d 1066, 1069 (1983). This is particularly true when the preliminary objections were denied without an opinion. Farber v. Engle, 106 Pa. Commw. 173, 525 A.2d 864 (1987). Moreover, where, as here, dismissal of the entire complaint on motion for summary judgment is appropriate, preclusion of consideration of the summary judgment motion by application of the rule stated, would have further burdened the parties and the court by requiring them to undergo the time and expense of an unnecessary trial, and thereby ...


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