Holiday Lounge, Inc. v. Shaler Enterprises Corp.

• Decision Date: 07 January 1971
• Citation: 272 A.2d 175,441 Pa. 201
• Parties: HOLIDAY LOUNGE, INC., a Pennsylvania Corporation, Appellant, v. SHALER ENTERPRISES CORPORATION, a Pennsylvania Corporation.
• Court: Pennsylvania Supreme Court

Page 175

272 A.2d 175

441 Pa. 201

HOLIDAY LOUNGE, INC., a Pennsylvania Corporation, Appellant, v. SHALER ENTERPRISES CORPORATION, a Pennsylvania Corporation.

Supreme Court of Pennsylvania.

Jan. 7, 1971.

Sidney Baker, Krause & Baker, Pittsburgh, for appellant

Richard A. Zappala, Zappala & Zappala, Pittsburgh, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

The gravamen of appellant's argument is that a decree should be vacated when preliminary objections to a complaint in equity are sustained, and the complaint is dismissed within the ten-day period allowed for amendment as of course, without transferring the matter to the law side or allowing the complainant the opportunity to amend. We affirm the chancellor's decree dismissing the complaint.

Appellant, Holiday Lounge, Inc. filed a complaint in equity on June 17, 1970, requesting only a preliminary injunction until final hearing, and a permanent injunction thereafter, enjoining appellee, Shaler Enterprises Corporation, from evicting Holiday Lounge, Inc. from appellee's premises when the five-year lease between the parties terminated on June 30, 1970. The chancellor set a date for a hearing on the request for preliminary injunction. On June 24, 1970, prior to the scheduled hearing, appellee-landlord filed preliminary objections, alleging, among other things, appellant-tenant was guilty of laches and had an adequate remedy at law. Those objections were argued at the time of the hearing, and on June 26, 1970, the chancellor dismissed appellant's complaint solely because of laches.

Appellant first alleges that the chancellor erred in dismissing the complaint without affording appellant the opportunity to amend. This argument is based on Rule 1028(c) of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix, which provides for the filing of an amended pleading 'as of course' within ten days after service of a copy of preliminary objections. Rule 1028(c) is made applicable to equity actions by Rule 1501.

Our research has not uncovered any prior judicial interpretations of Rule 1028(c) on this issue. However, we cannot conceive that the draftsmen of the Rule intended to have it operate in a situation such as is now presented to this Court. Otherwise, no chancellor could ever dispose of preliminary objections to an equity complaint until ten days had lapsed from the service of the objections. Clearly, the opportunity to amend 'as of course' provided for in Rule 1028(c) is available only when there has been no Intervening judicial determination of the validity of the preliminary objections. ^*

Appellant next contends that the chancellor erred in not certifying the matter to the law side of the court, as required by Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967) and Pa.R.C.P. Rule 1509(c).

Rule 1509(c) provides:

'The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.'

The Rule requires a certification Only if the objection is sustained because there is an adequate remedy at law. Appellant, however, requested Only equitable relief in its complaint; no demand for damages was made, and therefore no remedy at law could satisfy appellant's claim. Also, the chancellor sustained the preliminary objections Solely on the ground of laches.

Finally, appellant argues that a complaint in equity should not be dismissed upon preliminary objections raising the defense of laches. It is settled that laches may be raised and determined by preliminary objection if laches clearly appears in the complaint. Siegel v. Engstrom et al., 427 Pa. 381, 235 A.2d 365 (1967); Stahl v. First Pennsylvania Banking and Trust Co., 411 Pa. 121, 191 A.2d 386 (1963) (citing ca...