Appeal from the Order entered December 3, 1987, Court of Common Pleas, Erie County, Civil Division at No. 2113-A-1987.
Gregory P. Sesler, Erie, for appellants.
Donald W. Grieshober, Erie, for appellee.
Cavanaugh, Johnson and Hoffman, JJ.
[ 378 Pa. Super. Page 144]
On this appeal, we are asked to reconsider the rule regarding the partition of property held as tenants by the entireties, as first set forth in Vento v. Vento, 256 Pa. Super. 91, 389 A.2d 615 (1978), and as later extended in Clingerman v. Sadowski, 335 Pa. Super. 514, 485 A.2d 11 (1984). Appellants urge us to further extend the rule to permit the estate of a deceased spouse to accept a constructive offer for the severance of joint property, based upon egregious circumstances.
Because we find that appellants have been barred by the doctrine of res judicata from further pursuing their claim for relief, we decline to review the state of the law since Vento in this area, and affirm the trial court's order sustaining preliminary objections.
[ 378 Pa. Super. Page 145]
Donald W. Button and John N. Button, the sons of Wayne H. Button, deceased, (Sons), filed the present action in the Erie County Court of Common Pleas at No. 2123-A-1987 on June 2, 1987. The complaint seeks an accounting of the assets of Geraldine Button, the Sons' stepmother, an assignment of funds to the estate of the deceased father, an injunction against the stepmother preventing dissipation of alleged estate assets, and an order compelling the administration of the deceased father's estate.
On June 22, 1987, preliminary objections were filed on behalf of the defendant stepmother, including a demurrer, as authorized by Pa.R.C.P. 1017(b)(4). The preliminary objections also contain, in Paragraph 4, a claim of res judicata, based upon an alleged prior action at Erie County Court of Common Pleas No. 89-Equity-1986.
Of course, res judicata must be raised as new matter, Pa.R.C.P. 1030, and may not be raised in preliminary objections. Pa.R.C.P. 1017(b). Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968). This applies to actions in equity. Pa.R.C.P. 1501.
Rather than file a preliminary objection to Paragraph 4 of defendant's preliminary objection, the Sons filed an "Answer", setting forth uncertified allegations of fact concerning the earlier adjudication at No. 89-Equity-1986. By so doing, the Sons waived the right to object to the defendant stepmother's form of pleading. Duquesne Slag Products Company v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 54 (1980).
We begin our analysis by emphasizing that an appellate court may consider only facts which have been duly certified in the records on appeal. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974). Pa.R.A.P. 1921. In order to expedite disposition of this appeal, we requested, and received, ...