Com. v. Orsatti, Inc.

• Citation: 448 Pa. 72,292 A.2d 313
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. ORSATTI, INC. and Arnold Orsatti, Appellants.
• Decision Date: 28 June 1972
• Court: Pennsylvania Supreme Court

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292 A.2d 313 448 Pa. 72 COMMONWEALTH of Pennsylvania, Appellee,
v.
ORSATTI, INC. and Arnold Orsatti, Appellants. Supreme Court of Pennsylvania. June 28, 1972.

[448 Pa. 74]

Page 314

A. A. Guarino, Philadelphia, for appellants.

J. Shane Creamer, Atty. Gen., Thomas J. Oravetz, Lawrence T. Hoyle, Jr., Deputy Attys. Gen., Dept. of Justice, Harrisburg, for appellee.

[448 Pa. 73] Before JONES, C.J., and EAGEN, O'BRIEN, POMEROY, NIX, and MANDERINO, JJ.

[448 Pa. 74] OPINION OF THE COURT

O'BRIEN, Justice.

In July of 1963, in the Court of Common Pleas of Dauphin County, the Commonwealth of Pennsylvania filed a complaint against the appellants, Orsatti, Inc., and Arnold Orsatti, hereinafter referred to collectively as Orsatti, alleging the breach of a number of leases and seeking payment of $15,183.19 in damages. On August 5, 1963, Orsatti filed preliminary objections to the complaint. Nothing happened for five years, until October 14, 1968, when Orsatti filed a complaint against the Commonwealth with the Board of Arbitration of Claims, seeking damages in the amount of $48,393.25, for alleged breach of the same leases. Preliminary objections to that complaint were filed by the Commonwealth, raising the defense of the statute of limitations because the claim was not filed within six months after it had accrued as is required by § 6 of the Act of June 26, 1939, P.L. 1081, 72 P.S. § 4651--6. On November 14, 1968, the Board issued an order dismissing the complaint as being out of time. Orsatti did not appeal the Board's order.

On December 19, 1968, Orsatti withdrew the preliminary objections, which had been filed in 1963, to the Commonwealth's complaint, and filed an answer, new matter and counterclaim in Dauphin County Common Pleas Court. The counterclaim was identical to the [448 Pa. 75] claim previously filed with and dismissed by the Board of Arbitration of Claims. On January 8, 1969, the Commonwealth filed preliminary objections to Orsatti's new matter and counterclaim alleging, Inter alia, that the November 14, 1968, order of the Board of Arbitration of

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Claims made Orsatti's counterclaim res judicata. On January 17, 1969, Orsatti filed preliminary objections to the Commonwealth's preliminary objections. All of the objections were briefed and argued before court en banc on April 7, 1969. On January 2, 1970, the court, by Judge R. Dixon Herman, issued an order dismissing Orsatti's preliminary objections and sustaining the Commonwealth's preliminary objections to Orsatti's new matter and counterclaim, citing Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950). The parties were granted twenty days to plead over.

Orsatti made no effort to amend the pleadings...