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LEXINGTON INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (05/20/88)

decided: May 20, 1988.

LEXINGTON INSURANCE COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT ET AL., RESPONDENT



Original Jurisdiction in the case of Lexington Insurance Company v. Commonwealth of Pennsylvania, Insurance Department et al.

COUNSEL

Scott T. Redman, with him, Joseph J. Bosick, Pietragallo, Bosick & Gordon, for petitioner.

Thomas F. Halloran, Senior Deputy Attorney General, with him, Daniel B. Winters and James S. Lewis, Deputy Attorneys General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges MacPhail, Colins and McGinley, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 116 Pa. Commw. Page 260]

This matter falls within the Court's original jurisdiction*fn1 and is before us on preliminary objections and preliminary objections to the preliminary objections.

Plaintiff, Lexington Insurance Company, filed a praecipe for a writ of summons to be issued against and served on the Commonwealth of Pennsylvania, Insurance Department, James S. Lewis, Kramer Capital Consultants, Inc., Paul Sweeney, Hugh O'Brien, and Paul Tyahla (Commonwealth Defendants), and SCOR Reinsurance Company (SCOR). A complaint subsequently was filed and served. The complaint alleged that the defendants breached a fiduciary or contractual duty, and that, as a result, Lexington was exposed to a liability which it otherwise would have avoided. Thereafter the Commonwealth Defendant filed a document entitled application for a rule to show cause why the complaint should not be dismissed based upon the existence of a pending liquidation,*fn2 contending that the

[ 116 Pa. Commw. Page 261]

    matter should proceed as a proof of claim in the liquidation proceeding. SCOR filed a similar application. Following Plaintiff's reply, by order of October 1, 1987, this Court ordered that the applications for rule to show cause would be treated as motions to dismiss and that the motions would be denied. The Commonwealth Defendants then filed preliminary objections, consisting of three demurrers, and an objection that Plaintiff failed to comply with Pa. R.C.P. No. 1019(h). Plaintiff filed preliminary objections to the preliminary objections requesting that the Defendants' preliminary objections be dismissed as violative of Pa. R.C.P. No. 1028(b).

Plaintiff contends that the issue which the Commonwealth Defendants raised in their application for rule to show cause was an issue which could have been raised by preliminary objection pursuant to Pa. R.C.P. No. 1017, that the application for a rule to show cause should be considered as having raised a preliminary objection, and that, by not filing all of their preliminary objections at one time, the Commonwealth Defendants have waived their right to raise other preliminary objections. We agree. We sustain Plaintiff's preliminary objections to the preliminary objections and we dismiss the Commonwealth Defendants' preliminary objections. Consequently, we do not address the merits of the Commonwealth Defendants' preliminary objections.

Because this matter is brought within our original jurisdiction the Pennsylvania Rules of Civil Procedure govern pleading.*fn3 Pa. R.C.P. No. 1017(b) and Pa. R.C.P. No. 1028 control the use of preliminary objections. Pa. R.C.P. No. 1017(b) provides as follows:

(b) preliminary objections are available to any party ...


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