Summary
In Thomas v. McLean, 365 Pa. 526, 76 A.2d 413, the defendant, by way of preliminary objections, raised the question of the lack of jurisdiction over the defendant's person and, in support thereof, relied upon the contention that the original writ of summons had not been served and the writ was reissued after the original writ had expired and after the statute of limitations had run. Seemingly, this Court approved that procedure: "Preliminary objections now afford the appropriate procedure for raising a question of jurisdiction: Rule 1017(b)(1)."
Summary of this case from Goldstein v. StadlerOpinion
September 29, 1950.
November 13, 1950.
Appeals — Timeliness — Jurisdictional question — Act of March 5, 1925, P. L. 23 — Appealable orders.
1. An appeal from a decision on a question of jurisdiction which is not taken and perfected within fifteen days from the date when the decision is rendered must be quashed: Act of March 5, 1925, P. L. 23, § 3; Rule of Civil Procedure 1017(b) (1). [528]
2. An interlocutory order which disposes of a jurisdictional question is appealable. [528]
3. An exception to the lower court's order is ineffectual to prolong the time for appeal. [529]
4. Under the Act of March 5, 1925, P. L. 23, § 3 a failure to appeal within the time specified is a waiver of all objections to jurisdiction over the defendant personally. [528]
Before DREW, C. J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.
Appeal, No. 223, March T., 1949, from order of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 1192, in case of George Thomas v. Wilbert F. McLean, trading as McLean Coal Company. Appeal quashed; reargument refused November 28, 1950.
Trespass for personal injuries.
Defendant's preliminary objections overruled, before McNAUGHER, WEISS and ADAMS, JJ., opinion by McNAUGHER, J. Defendant appealed.
James J. Burns, Jr., for appellant.
Milton I. Watzman, with him Watzman Groudine, for appellee.
In this action of trespass for damages for personal injuries, the defendant filed preliminary objections on the grounds (1) that the complaint failed to state a cause of action, (2) that the court was without jurisdiction of the defendant, (3) that the action was barred by the statute of limitations and (4) that the complaint was vague and indefinite. The objection principally relied upon by the defendant was the court's alleged want of jurisdiction over the person of the defendant, — a contention based on the fact that the writ of summons wherewith the defendant was served had been reissued by the prothonotary, on the plaintiff's praecipe, after the statute of limitations had run and after the original writ had expired, without service thereof, more than two years after the infliction of the injuries in suit. The learned court below overruled the defendant's first three objections but sustained the fourth, that the complaint was vague and indefinite, and entered an order to such effect on June 2, 1949, at the same time granting the plaintiff leave to amend within twenty days. From the order so entered, the defendant appealed on July 22, 1949.
The statute of limitations is an affirmative defense to be pleaded in a responsive pleading under the heading "New Matter": see Rule 1030 of the Pennsylvania Rules of Civil Procedure. It is not, therefore, a proper subject of preliminary objections.
Notwithstanding that the order entered by the court below was interlocutory, it was appealable, nonetheless, because disposition was thereby made of the jurisdictional question raised by the second objection. Preliminary objections now afford the appropriate procedure for raising a question of jurisdiction: Rule 1017 (b)(1). That rule replaced the Act of March 5, 1925, P.L. 23, 12 Pa.C.S.A. § 672, except for the Act's provisions respecting appeals to the Supreme or Superior Courts, as the case might be. Thus, Section 3 of the Act of 1925, which is still in force, requires that an appeal from a decision on a question of jurisdiction be taken and perfected within fifteen days from the date when the decision is rendered and further provides that a failure to appeal within the time specified shall be deemed a waiver of all objections to jurisdiction over the defendant personally. As already appears, the instant appeal was not taken for upwards of seven weeks following the decision of the court below and is therefore out of time. The exception to the lower court's order, belatedly noted at the defendant's instance, was, of course, ineffectual to prolong the time for appeal: Cf. Philadelphia Suburban Transportation Company v. DiFrancesco, 362 Pa. 326, 332, 66 A.2d 254; and Estate of William Frazier, 7 Pa. Super. 473, aff'd. 188 Pa. 415, 41 A. 528.
Appeal quashed.