Watts v. Myers ( 1951 )

Kreisher, P. J.,

— Plaintiffs brought this action to recover for both personal injuries and property damages arising from an automobile collision. Plaintiff Raymond F. Watts owned a truck, and count 2 of the complaint comprises his claim for property damage. Plaintiff Ivan W. Watts, son of Raymond F. Watts, was driving the truck at the moment of the collision, and count 1 of the complaint covers his claim for personal injuries and property damage.

Defendant Cameron Myers owned a bus, which was being driven by defendant Helen Myers, his wife, at the time of the accident. Defendants filed preliminary objections to plaintiffs’ complaint, and thereafter plaintiffs filed an amended complaint. Defendants then filed preliminary objections to the amended complaint in the nature of a demurrer, and it is this matter which is now before the court for disposition. However, counsel for plaintiffs has this day filed an amended complaint, wherein many of the objections heretofore relied upon by counsel for the defendants have been corrected, and by reason of the filing of the amended complaint to the amended complaint, the court is of the opinion that it is unnecessary to pass upon defendants’ preliminary objections to plaintiffs’ amended complaint.

Plaintiffs under the Pennsylvania Rules of Civil Procedure are expressly given the right to amend their pleadings, and this is especially true where preliminary objections have been filed, as the rules provide that an amended pleading may be filed as of course to correct a matter preliminarily objected to. The amended complaint, as filed, contains the usual endorsement upon the backer, allowing defendants 20 days from the date of service to plead to the complaint and, therefore, defendants have the opportunity of either filing preliminary objections to the recently filed amended complaint, or filing an answer thereto.

It is true that this amended complaint comes after the expiration of the 10 days as provided under subsection (c) of rule 1028. However, since the court is of the opinion that the preliminary objections heretofore filed were well grounded as respects the original amended complaint, and from an examination of the recently filed amended complaint, at least some of the matters which were preliminarily objected to have been corrected and rectified, the court is inclined to allow the filing of the amended complaint.

In the comment with respect to rule 1028(c) of Goodrich-Amram Procedural Rules Service, it is stated, Goodrich-Amram §1028 (c)-l:

“In accordance with the prior practice in equity cases, the plaintiff is given an absolute right to amend his complaint within 10 days after he is served with the defendant’s preliminary objection, If the amendment removes all the errors of which the defendant has complained, the preliminary objections should be withdrawn or dismissed by the court. If the defendant is not satisfied that the amendment cures all the errors, he need not file a new preliminary objection, but may order down the original objection for argument on the original complaint as well as the amendment. If the amendment contains new errors, not appearing in the original complaint, the defendant may file a new preliminary objection to raise these new matters.”

From the foregoing it will be noted that the court is not at liberty at this time, by reason of the amended complaint, to dismiss defendants’ preliminary objections to plaintiffs’ amended complaint, as defendants may rely upon those preliminary objections to plaintiffs’ amended complaint, or, if they choose, they may file additional preliminary objections to the recently filed amended complaint, or they may file an answer thereto if, in their opinion, the recently filed amended complaint cures all defects. If defendants choose to file an answer, the court at that time can dispose of the preliminary objections heretofore filed. If defendants choose to file additional preliminary objections to plaintiffs’ recently amended complaint, the court can then dispose of all preliminary objections at one time.

Order of Court

And now, to wit, March 8, 1951, plaintiffs’ amended complaint to plaintiffs’ amended complaint is hereby specially allowed to be filed, and it is directed that the same be served upon defendants, who shall plead thereto within 20 days from the date of the service thereof, and decision upon defendants’ preliminary objections to plaintiffs’ amended complaint is hereby withheld until further order of this court.