decided: May 20, 1988.
LEXINGTON INSURANCE COMPANY, PETITIONER
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.
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.
[ 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 and are limited to
[ 116 Pa. Commw. Page 262]
(1) a petition raising a question of jurisdiction or venue or attacking the form or service of a writ of summons;
(2) a motion to strike off a pleading because of lack of conformity to law or rule of court or because of scandalous or impertinent matter;
(3) a motion for a more specific pleading;
(4) a demurrer, which may not include the bar of a statute of limitations or frauds; and
(5) a petition raising the defense of lack of capacity to sue, pendency of a prior action, non-joinder of a necessary party or misjoinder of a cause of action.
The Commonwealth Defendants' application for a rule to show cause raised the issue of pendency of a prior action, a defense which may be raised by way of preliminary objection. Pa. R.C.P. No. 1017(b)(5).
Pa. R.C.P. No. 1028(b) provides in relevant part that "all preliminary objections shall be raised at one time." The issue which confronts us is whether the Commonwealth Defendants may avoid the dictates of Pa. R.C.P. No. 1028(b) by raising in an application for a rule to show cause the same issue which may be raised by preliminary objection. We are constrained to answer this question in the negative.
The Rules imply a strong prohibition against a serial raising of objections. Pa. R.C.P. Nos. 1028(b), 1032.
Inherent in the entire scheme of the preliminary objections is the sanction against a series of preliminary dilatory steps. Even where an objection is one which is not waived if not raised preliminarily, the defendant may lose the right to raise it at a preliminary stage if he does not follow the strict command of the Rules.
Goodrich-Amram 2d § 1017(b):4. A defendant may not be permitted to defeat this rule by miscaptioning a
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pleading as an application for a rule to show cause when the pleading, in fact, raises a preliminary objection.*fn4
The Commonwealth Defendants acknowledge*fn5 that on their face the preliminary objections which they filed violate Pa. R.C.P. No. 1028(b), but they ask us to dismiss the Plaintiff's preliminary objections to the preliminary objections pursuant to Pa. R.C.P. No. 126.*fn6 We do not believe that it would be proper to apply Rule 126 to this matter.*fn7 The Commonwealth Defendants have not been prejudiced. Three out of their four preliminary objections are demurrers. The Commonwealth Defendants have not waived their right to raise at a later stage in the proceedings the defense of failure to state a claim upon which relief can be granted. Pa. R.C.P. No. 1032(1). Their fourth preliminary objection concerns Plaintiff's alleged failure to attach a contract to its complaint. The Commonwealth Defendants will be able to request the submission of this document in discovery. Furthermore, even if the Commonwealth Defendants
[ 116 Pa. Commw. Page 264]
had waived their right to raise certain issues, we would decline to exercise Pa. R.C.P. No. 126. This rule permits a court to disregard a procedural defect; the rule clearly does not prohibit a court from imposing a sanction for failure to comply with a duly promulgated rule. Hesselgesser v. Glen Craft Contractors, Inc., 287 Pa. Superior Ct. 319, 430 A.2d 305 (1981).
Consequently, we sustain Plaintiff-Petitioner's preliminary objections to the preliminary objections and we dismiss the Commonwealth Defendants-Respondents' preliminary objections. Respondents have 30 days to file an answer.
Now, this 20th day of May, 1988, we sustain Plaintiff-Petitioner's preliminary objections to preliminary objections and we dismiss the Defendants-Respondents' preliminary objections. Respondents have 30 days to file an answer.
Petitioner's preliminary objections sustained. Preliminary objections of respondents dismissed.