Appeal from the Order Dated October 16, 1987 In the Court of Common Pleas of Allegheny County, Civil, No. GD87-06483.
Michael R. Kelly, Pittsburgh, for appellant.
Mark J. Christman, Pittsburgh, for appellee.
Cirillo, President Judge, and Tamilia and Hester, JJ.
[ 380 Pa. Super. Page 454]
This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing appellant Robert Lampl's counterclaim in an action initiated by appellee, Virginia Mansions Condominium Association (hereinafter VMCA), to collect certain condominium fees and assessments. We reverse.
VMCA commenced its action against Lampl, both individually and as general partner of HRT Land Company, in April of 1987. The suit sought to recover unpaid common fees and assessments associated with Lampl's condominium units. Lampl responded with preliminary objections asserting, inter alia, the pendency of a prior action which he had filed claiming damages from VMCA for its failure to repair fire damage to several condominium units and the surrounding common areas. Lampl's suit asked that the named defendants -- VMCA, its insurance company and that company's agent,*fn1 and two insurance trustees of the condominium association*fn2 -- be held jointly and severally liable for the damages claimed. He indicated that his defense in the VMCA action would be identical to the claims raised in his suit, which he incorporated by reference, and that he had set off the fees VMCA sought in an effort to mitigate the damage VMCA had caused him.*fn3 He asked that the court dismiss VMCA's action or stay it pending the determination of his earlier filed suit.
Lampl's preliminary objections were denied in June. He then filed one pleading containing an answer, new matter,
[ 380 Pa. Super. Page 455]
counterclaim and complaint to join additional defendants.*fn4 The counterclaim again raised, inter alia, the same allegations as were contained in Lampl's suit. VMCA then filed preliminary objections to the counterclaim raising the defense of the pendency of Lampl's prior action. On October 16, 1987, the court sustained VMCA's preliminary objections and dismissed Lampl's counterclaim. Lampl then filed this appeal asking this court to find error in the trial court's action in dismissing his counterclaim for the reason that there was a prior action pending.
Generally, the pendency of a prior action, or lis pendens, may be pleaded either as a preliminary objection, Pa.R.C.P. 1017(b)(5), or in the answer, Goodrich-Amram 2d § 1017(b):3 & 13. The party raising the defense of lis pendens can ask that the action in which the defense is being raised be abated, that it be stayed pending the outcome of the prior litigation, or that the actions be consolidated. Where, as here, the defense is being asserted as a ground for abatement, it will be waived if it is not raised as a preliminary objection. 2 Standard Pennsylvania Practice 2d § 12:5. Therefore, Lampl correctly raised the defense of lis pendens in his preliminary objections to VMCA's complaint. Whether the trial court's ruling on his preliminary objections was correct is not before us, nor could it be, as that was an interim ruling in a case that has not yet reached final judgment. However Lampl may have viewed that ruling, he had no choice but to file an answer to the complaint and raise the defense again in his counterclaim. Only when his counterclaim was dismissed was there a final, appealable order. Fidelity Bank v. Duden, 361 Pa. Super. 124, 521 A.2d 958 (1987) (en banc) (pre-trial order dismissing a counterclaim is final and appealable).
[ 380 Pa. Super. Page 456]
The trial court sustained VMCA's preliminary objection and dismissed Lampl's counterclaim on the basis that "the relief sought in the counterclaim is identical to the relief sought in the prior action [Lampl's suit]." This was incorrect for two reasons. First, the fact that another action is pending upon a claim will not prevent the same claim from being used as a setoff in a subsequent action. 2 Standard Pennsylvania Practice 2d § 12:15. Secondly, the court erred in limiting its reasoning to ...