Mink v. New York Central Railroad

31 Pa. D. & C.2d 466, 1963 Pa. Dist. & Cnty. Dec. LEXIS 363

Opinion

Rodgers, P. J.,

We think it abundantly clear that courts have consistently refused to consider the propriety of damages on preliminary objections.

In Goodrich Amram, §1017 (b) - (11), it is said: “The defendant may not use a demurrer to raise the defense of . . . wrong measure of damages . . .”

Defendant here has suggested that he is raising not a question of measure of damages, but a question of theory of damages. We consider this a distinction without a difference and now hold that this case is governed by Suraci v. Ball, 160 Pa. Superior Ct. 349, 354.

Defendant suggests, however, that there should be a procedure whereby he could have the question of theory of damages resolved prior to the trial, or pretrial, in order that he might make timely preparation to meet the demands of plaintiff at the trial. We agree.

The matter having been brought to the attention of the court to expedite the orderly administration of justice, we are setting pretrial conferences, limited to this issue, for Monday, August 19, 1963. In order to assist the court in the determination of this issue at that time, the counsel for defendant is directed to file a memorandum of law with the court and opposing counsel on or before July 25,1963; and plaintiff is directed to file his memorándum with the court and opposing counsel on or before August 1,1963.

Order

And now, July 1, 1963, plaintiff’s motion to strike defendant’s preliminary objection is granted. Defendant is granted 20 days in which to file any proper pleading.

Exception

And now, July 1, 1963, an exception is granted to the above order for the defendant.