Bashline v. Roha

• Decision Date: 24 July 1948
• Docket Number: 71
• Parties: Bashline et al. v. Roha et ux
• Court: Pennsylvania Commonwealth Court

67 Pa. D. & C. 160

Bashline et al. v. Roha et ux

No. 71

Common Pleas Court of Crawford County, Pennsylvania

July 24, 1948

November term, 1947.

Preliminary objections to amended complaint.

McGill & McGill, and George C. Magee, Jr. for plaintiffs.

Leland J. Culbertson, for defendants.

OPINION

MOOK, P. J.

Plaintiffs in the above-captioned case sued defendant, James Roha, before Alderman N. Allen Love of the City of Titusville for damages arising from an automobile accident wherein the automobile of plaintiff William Rex Bashline, was struck by the automobile of defendant James Roha.

Defendant did not appear at the hearing and the alderman, after hearing the testimony of plaintiff, Bashline, entered judgment for both plaintiffs in the sum of $ 278.47 on October 6, 1947.

On October 18, 1947, defendant James Roha filed an affidavit appeal before the alderman and on October 27, 1947, the transcript of appeal was duly filed in the common pleas court of this county.

According to the transcript, the action was " in assumpsit, in a plea of debt or demand, arising from trespass vi et armis", which is an anomaly, but no question has been raised concerning the form of action.

Although the record does not show that notice was given of the filing of the appeal as required by our rule of court (rule 9, sec. 2), plaintiff nonetheless, on November 6, 1947, filed a complaint entitled " William R. Bashline, Plaintiff, v. James Roha, Defendant." On November 24, 1947, defendant filed preliminary objections in the form of a petition for a more specific complaint and the court entered the following order:

" And now, November 24, 1947, upon consideration of the foregoing petition and upon motion of Leland J. Culbertson, attorney for defendant, James Roha, the court grants a rule on the plaintiff to appear and show cause why he should not file a more specific plaintiff's complaint, all proceedings to stay in the meantime. Returnable sec. reg.

" Per Curiam,

O. Clare Kent, P. J."

Before this rule was disposed of by the court, plaintiffs, on January 9, 1948, filed an amended complaint captioned " William Rex Bashline, and Insurance Company of North America, a corporation, Plaintiffs, v. James Roha, Defendant." So far as we can determine this amended complaint was filed without consent of defendant or by leave of court as required in Pa. R. C. P. 1033, the amendment not having been filed within 10 days as permitted in rule 1028 (c ).

At the hearing before the magistrate, as appears by his transcript, it was alleged, and in the complaint and amended complaint it was averred, that defendant James Roha was driving the automobile which collided with plaintiff Bashline's car.

Thereafter, on February 4, 1948, plaintiffs filed a second amended complaint, this one being captioned " William Rex Bashline, and Insurance Company of North America, a corporation, Plaintiffs, v. James Roha and Velma Roha, Defendants." In this complaint it was alleged that " Velma Roha, wife of James Roha, was driving an automobile accompanied by the owner thereof, James Roha, co-defendant herein."

On March 1, 1948, counsel for defendant James Roha filed a special appearance for Velma Roha, and on the same day filed a petition for leave to file preliminary objections to the second amended complaint on the ground that it seeks to add the additional name of Velma Roha as a party defendant without process on the new party; that the case being an appeal from a judgment of an alderman, it cannot be enlarged upon by the addition of a new party to the record. We granted a rule to show cause why the amended complaint should not be stricken off as to Velma Roha.

On the same day, to wit, March 1, 1948, counsel for defendant, James Roha, filed preliminary objections to the second amended complaint on the grounds,

" 1. That the complaint was filed without agreement of counsel or leave of court.

" 2. That the complaint alleges facts which make it apparent that the alderman had no jurisdiction of the case (i.e., that the action was trespass on the case rather than trespass vi et armis)."

All preliminary objections may now, and we think should be, included in the same pleading. However, since both were filed at the same time we granted a rule to show cause on these objections also, and we will dispose of the same together.

I.

It is first objected that the amended complaint was filed without consent of defendant or leave of court.

In relation to amendments, Pa. R. C. P. 1028(c ) provides:

" (c ) A party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise."

Pa. R. C. P. 1033 provides:

" A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted."

It had previously been held that under section 21 of the Practice Act an amendment could not be filed without leave of court.

However, our Rule 8 of the Rules of Practice of the Court of Common Pleas of Crawford County provides:

" Section 1. Amendments Before Trial. Either party to a cause may, at any time before the trial list is closed, amend his pleadings, as of course. If the adverse party objects to the amended pleadings, he shall within five days after service of the notice hereinafter required, move to strike off the amended pleadings, stating his reasons therefor, and such motion shall be entered immediately upon the argument list."

The notes to this section state that the purpose of this is to grant the leave of court (theretofore required to amend).

In Goodrich-Amram, page 127, under Discussion of Amendment to the Complaint, we find the following:

" In the absence of consent, there must be 'leave of court'. Rule 1033 does not provide how this leave of court is to be obtained. In the absence of local rules fixing the practice, the prior practice of petition and rule should be continued."

However, our local rule above set forth appears to fix the practice in this county, hence we must conclude that the effect of the rule is to still grant the permission of the court to amend any pleading before the trial list is closed under the conditions therein set forth.

II.

Defendant next objects that the second amended complaint adds a new party defendant without process on the new party and that since this proceeding is an appeal from the judgment of an alderman, it cannot be enlarged upon by the addition of a new party to the record.

We at once concede that in the case of Clauser v. Matz, 53 D. & C. 355, the Common Pleas Court of Schuylkill County held that a proceeding on appeal cannot be enlarged upon by the addition of a new party to the record. In that case plaintiff, Clauser, sued John Matz on an oral contract before a justice of the peace and obtained judgment for $ 45, and an appeal was filed in the court of common pleas. Six and one half years thereafter plaintiff filed a statement of claim and named defendants as Mr. and Mrs. John Matz. The court directed the statement of claim stricken off as to Mrs. John Matz. Thus, the court's decision could be sustained on the ground that the statute of limitations had run on any alleged oral contract of Mrs. John Matz.

Pa. R. C. P. 2232(c ) provides:

" At any stage of an action, the court may order the joinder of any additional person who could have joined or who could have been joined in the action and may stay all proceedings until such person has been joined. The court in its discretion may proceed in the action although such person has not been made a party if jurisdiction over him cannot be obtained and he is not an indispensable party to the action."

In the discussion of this rule in Goodrich-Amram Procedural Rules Service we find the following:

" If the court is to join as a defendant a person who could have been joined as an original party defendant, the consent of the new party is clearly not required."

The Act of May 4, 1852, P. L. 574, sec. 2, 12 PS § 533, previously in force relating to changing or adding names of parties provided:

" All actions pending, or hereafter to be brought in the several courts of this commonwealth, and in all cases of judgments entered by confession, the said courts shall have power, in any stage of the proceedings, to permit amendments by changing or adding the name or names of any party, plaintiff, or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party."

Under this act it had been held that an action may be amended by adding name of party defendant provided there is no change in the cause of action: Handshuh v. Fair, 29 Dauph. 3; Csizik v. Verhovay Sick Benefit Assn., 60 Pa.Super 466; In re Kauffman's Estate, 293 Pa. 73; Leland v. Firemans Insurance Co. of Newark, 127 Pa.Super 533; Muller v. Harrigan, 34 Del. Co. 270; Johnson v. Madrid Motor Corp., 48 D. & C. 258.

In the case of Continental Jewelry Co. v. Dewey, 33 Pa. C C. 544, which was a case in the Court of Common Pleas of Crawford County, President Judge Frank J. Thomas held that such amendments are to be allowed in suits appealed from a judgment of a justice of the peace the same as those originally brought in the common pleas court. In the opinion at...