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BARBARA L. SHERRY v. TREXLER-HAINES GAS (04/27/88)

filed: April 27, 1988.

BARBARA L. SHERRY, APPELLEE,
v.
TREXLER-HAINES GAS, INC., ATLANTIC RICHFIELD COMPANY, SUN GAS COMPANY, JOHN P. CLARKE CO., INC. AND CHARLES A. HONES, INC. APPEAL OF TREXLER-HAINES GAS, INC.



Appeal from the Order entered December 16, 1986 in the Court of Common Pleas of Lehigh County, Civil Division, No. 83-C-2613.

COUNSEL

Jeffrey R. Dimmich, Allentown, for appellant.

Anthony M. Muir, Allentown, for Hones, appellee.

Montemuro, Kelly and Cercone, JJ. Montemuro, J., files dissenting opinion.

Author: Kelly

[ 373 Pa. Super. Page 332]

This is an appeal from an Order granting appellee's preliminary objections in the nature of a motion to strike appellant's joinder complaint. As appellant Trexler-Haines Gas, Inc. (hereinafter Trexler) followed proper procedure in joining Sun Gas Company (hereinafter Sun), Atlantic Richfield, John P. Clarke, Co., and Charles A. Hones, Inc. as additional defendants, we hold that the trial court erred in dismissing appellant's complaint joining those defendants. Accordingly, we reverse and remand.

The facts giving rise to this appeal are simply stated. Appellee Barbara Sherry instituted a personal injury suit against Trexler on September 22, 1983. Trexler filed its answer and new matter on October 26, 1983. Moreover, on November 10, 1983 Trexler filed a joinder complaint against additional defendants Sun, Atlantic Richfield Co. and John P. Clarke Co. Service was effectuated on Atlantic Richfield Co. and John P. Clarke Co.;*fn1 however, on February 26, 1984 the complaint to join Sun was returned by the sheriff of Montgomery County marked "not found."

Trexler eventually filed a praecipe on May 28, 1986 to reissue the complaint against Sun. Service of the complaint was made on June 20, 1986. Sun filed, on July 15, 1986, preliminary objections in the nature of a motion to dismiss the complaint on grounds of untimely joinder. A hearing on the motion was held on November 3, 1986. The trial court, on December 16, 1986, ordered dismissal of the joinder complaint against Sun on the basis of untimely service, citing as authority the rescinded Pa.R.C.P. 2254. Trexler timely appealed this order to our Court. Its sole

[ 373 Pa. Super. Page 333]

    contention on appeal is that the trial court erred in applying the rescinded Rule 2254 to the procedures in this case.

I.

Initially we note that joinder of an additional defendant is accomplished by the filing of either a praecipe for a writ or a complaint within sixty (60) days of receipt of the plaintiff's complaint. Pa.R.C.P. 2252, 2253.*fn2 Herein, Trexler filed its joinder complaint within the applicable sixty (60) day time period but did not effectuate proper service upon Sun for over two years.*fn3 Personal jurisdiction over Sun was therefore not acquired during that period.

When Sun was served with the reissued complaint, Sun filed preliminary objections on July 15, 1986. These preliminary objections were in the nature of a motion to dismiss Trexler's complaint due to late joinder of the additional defendants. However, as stated previously, the record reveals that the joinder of additional defendants Sun, Atlantic Richfield, and John P. Clarke Co. was timely, as it was accomplished within sixty (60) days of appellant Trexler's

[ 373 Pa. Super. Page 334]

    receipt of the plaintiff's complaint. Nonetheless, rather than ruling on Sun's preliminary objections regarding joinder, the trial court, sua sponte, entered an order striking the complaint on the basis of untimely service rather than untimely joinder. This was error.

Undeniably, a trial court may address sua sponte issues of whether jurisdiction is proper. Cheng v. Cheng, 347 Pa. Super. 515, 500 A.2d 1175 (1985); Commonwealth, Dept. of Transp., Bureau of Traffic Safety v. Forte, 29 Pa. Commw. 415, 371 A.2d 526 (1977); Pa.R.C.P. 1032(2). However, here the trial court raised sua sponte the issue of the timeliness of service, a procedural question not addressed by either party. This, we find to be improper. See e.g. Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974) (court cannot sustain a demurrer where no demurrer is made by a party); Galdo v. First Pennsylvania Bank, 250 Pa. Super. 385, 378 A.2d 990 (1977) (court erred in sustaining preliminary objections as to both defendants where only one defendant filed preliminary objections).

Moreover, when a party fails to raise the issue of defective service, that party is deemed to have waived that issue and to have validated an otherwise defective form of service. Cox v. Hott, 246 Pa. Super. 445, 371 A.2d 921 (1977). As Sun failed to plead defects in service, Sun effectively validated that service and should be held to have waived the right to argue that issue on appeal. In this regard, the trial court erred, and accordingly, we must reverse.

II.

Additionally, we hold that the trial court erred in applying the rescinded ...


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