Urban v. Urban

481 A.2d 662, 332 Pa. Super. 373, 1984 Pa. Super. LEXIS 5988
CourtSupreme Court of Pennsylvania
DecidedSeptember 7, 1984
Docket2457
StatusPublished
Cited by21 cases

This text of 481 A.2d 662 (Urban v. Urban) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Urban v. Urban, 481 A.2d 662, 332 Pa. Super. 373, 1984 Pa. Super. LEXIS 5988 (Pa. 1984).

Opinions

[377]*377CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas, Bucks County, sustaining appellee’s preliminary objections and striking appellant’s answer and new matter.

Appellant, Margaret Urban, had filed for divorce against her husband, Edmund Urban, the appellee in this case. Pursuant to the Divorce Code,1 appellant requested among other things, the equitable distribution of marital property. While the divorce matters were pending, Mr. Urban on February 22, 1981, filed a complaint in equity which averred that an agreement existed between the parties to divide the proceeds from the sale of their marital residence. Appellant did not respond to this complaint until nearly fifteen months had elapsed. On May 11, 1982, appellant filed an answer and new matter to the complaint.

Shortly thereafter, appellee filed preliminary objections which alleged that he had been prejudiced by the late filing and demanded that the answer and new matter therefore be stricken. Appellant’s answer to the preliminary objections admitted the late filing of the original answer, but denied that prejudice resulted to the appellee because of it. The appellee ordered the matter for argument on petition and answer. The Honorable Judge Issac E. Garb sustained appellee’s preliminary objections and struck appellant’s untimely filed answer. This appeal followed.

We address first the appealability of this order. Generally, an appeal will lie only from a final order unless otherwise permitted by statute. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). “An order is interlocutory and not final unless it effectively puts the litigant out of court, terminates the litigation or disposes of the entire case.” Rigidply Rafters v. Aetna Cas. & Sur. Co., 311 Pa.Super. 549, 552, 457 A.2d 1318, 1320 (1983); Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981). However, in determining what is a final appealable order, “we must look beyond the technical effect of the adjudication to [378]*378its practical ramifications.” Jackson v. Moultrie, supra, 288 Pa.Superior Ct. at 255, 431 A.2d at 1034-35; Praisner v. Stocker, supra. “Certain orders which have not put a litigant literally ‘out of court’ or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from [presenting her claim].” Praisner v. Stocker, supra, 313 Pa.Superior Ct. at 338, 459 A.2d at 1258-59; Freeze v. Donegal Mutual Insurance, 301 Pa.Super. 344, 447 A.2d 999 (1982).

Instantly, we conclude that the lower court order striking appellant’s answer and new matter is sufficiently final to warrant our review. See, Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966); Higgs v. New York Fire Insurance Co., 176 Pa.Super. 310, 106 A.2d 860 (1954); 2 P.L.E. Appeals § 36. The striking of the answer and new matter prevents appellant from denying averments of fact in the complaint and further prevents her from asserting affirmative defenses to appellee’s action. Pa.R.C.P. 1029, 1030. The effect of appellant’s pleadings being stricken here is to admit the existence of a valid agreement concerning the division of proceeds from the sale of the marital residence. For purposes of equitable distribution under the Divorce Code, the marital residence would thereby be excluded from consideration as marital property. 23 Pa.C.S. § 401(e)(2). Because the family home is both a substantial and unique asset, we believe that its removal from marital property calculation effectively puts appellant “out of court” on her claim for equitable distribution. Accordingly, we consider this appeal.

The Rules of Civil Procedure in Pennsylvania allow twenty days, after service of a complaint for the filing of an answer. Pa.R.C.P. 1026. An answer not filed within the prescribed time may be stricken. Pa.R.C.P. 1017(b)(2). The twenty day filing rule, however, is not mandatory but permissive. Where possible the rules of civil procedure, including filing rules, should be construed in a liberal fash[379]*379ion to effect equitable results. Pa.R.C.P. 126; Goldsborough v. City of Philadelphia, 309 Pa.Super. 347, 455 A.2d 643 (1982). Thus, the filing of dilatory pleadings will generally be permitted where the opposing party has not been prejudiced by the delay. Much is left to the discretion of the lower court. Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951); Goldsborough v. City of Philadelphia, supra; Commonwealth, Department of Transportation v. Pace, 64 Pa.Cmwlth. 273, 439 A.2d 1320 (1982).

Appellant concedes that her answer and new matter were filed over one year after the time mandated by our rules had expired. Pa.R.C.P. 1026. There is no claim nor indication that appellant at any time sought leave of court to file an amended or late pleading. Pa.R.C.P. 1033. Nevertheless, appellant argues that the striking of her answer was improper because no prejudice resulted to appellee because of the untimely filing.

The court below did not subscribe to appellant’s characterization of events. After finding that appellee was indeed severely prejudiced by the delay in the filing of the answer, Judge Garb sustained appellee’s preliminary objections. In this regard Judge Garb opined:

(The) delay in time is not inconsequential and without prejudice to the plaintiff in view of the nature of these proceedings. The complaint was for the purpose of partitioning the proceeds of the sale of the property allegedly held as tenants by the entireties in the sum, initially, of approximately $33,500.00 held in escrow by the attorneys for the parties. During this entire period of delay the funds were held by the escrow agents and were not available to the parties who were the rightful owners... In conjunction with the divorce proceedings a master was appointed and hearing dates fixed which had to be aborted because of the pendency of this action and this late filing of defendant’s pleading. We are satisfied that the plaintiff has been severely prejudiced in denial of a speedy determination of whatever rights he may have in [380]*380the fund in question and therefore the access to whatever those funds may be.

Plainly, Judge Garb’s well-reasoned explication demonstrates that he acted within his discretion in striking appellant’s answer and new matter.

Appellant would have us invoke Pa.R.C.P. 209 as a basis for ruling that the lower court prematurely considered the matter of prejudice.

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Urban v. Urban
481 A.2d 662 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
481 A.2d 662, 332 Pa. Super. 373, 1984 Pa. Super. LEXIS 5988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urban-v-urban-pa-1984.