Button v. Button

• Decision Date: 29 September 1988
• Citation: 548 A.2d 316,378 Pa.Super. 142
• Parties: Donald W. BUTTON and John N. Button, Appellants, v. Geraldine BUTTON.
• Court: Pennsylvania Superior Court

Page 316

548 A.2d 316

378 Pa.Super. 142

Donald W. BUTTON and John N. Button, Appellants, v. Geraldine BUTTON.

Superior Court of Pennsylvania.

Argued Aug. 16, 1988.

Filed Sept. 29, 1988.

Gregory P. Sesler, Erie, for appellants.

Donald W. Grieshober, Erie, for appellee.

Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.

JOHNSON, Judge:

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.

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, the certified record from the first case, Button v. Button, No. 89-Equity-1986.

For the defense of res judicata to prevail, it is necessary that between the previous action and the present action there be identity in the thing sued on, identity of the cause of action, identity of the persons and parties to the action, and identity of the quality or capacity of the parties suing or sued. Duquesne Slag Products, supra 490 Pa. at 105, 415 A.2d at 55. Moreover, there must be finality to the judgment rendered in the first case. While an order sustaining preliminary objections and dismissing a party as defendant or dismissing the complaint may become res judicata upon exhaustion or expiration of appeal, U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985) a decree which merely sustains the preliminary objections without dismissing the complaint is interlocutory and is not res judicata as to like issues subsequently raised in proceedings between the parties. Ahrens v. Goldstein, 376 Pa. 114, 121, 102 A.2d 164, 167 (1954).

Our examination of the original records in Erie County cases No. 89-Equity-1986 and No. 2123-A-1987 satisfies us that the necessary identities for the application of the doctrine of res judicata are, in fact, present. The prayers for relief in both cases are identical, seeking an accounting, assignment of funds to the decedent's estate, an injunction to prevent the defendant from disposing of any of the decedent's assets, and an order compelling administration of the decedent's estate. The plaintiffs and the defendant are identical in both actions, both as to the names and as to the capacity in which the parties sue or were sued.

Although the second cause of action incorporates...