LaRose v. Plastico Industries, Inc.

KLEIN, J.,

We have before us defendant’s preliminary objection to plaintiff’s complaint and being a petition raising the defense of pendency of a prior action.

The herein defendant filed suit against the herein plaintiffs at no. 469 of 1972. It is conceded that both law suits arise out of the same matter. The herein defendant is asserting that plaintiffs are foreclosed from filing the instant action because they could have included a counterclaim when the answer was filed in the earlier suit.

Pennsylvania does not recognize the doctrine of “compulsory counterclaim”: Goodrich-Amram §1031-(a) -1. No counterclaim is “compulsory” under the rules. It is optional at all times to defendant to bring an independent action against plaintiff: Goodrich-Am-ram §1031(a) -1 (1972 Supplement).

The herein defendant is misconstruing amended Pennsylvania Rule of Civil Procedure 1020. Said rule contemplates that the party-plaintiff would be plaintiff in the other causes of action as well.

ORDER

Now, December 1, 1972, for the reasons stated in the foregoing opinion, it is ordered, adjudged and decreed that defendant’s preliminary objections to plaintiff’s complaint be, and are hereby, overruled. Leave is granted to defendant to file an answer within 20 days of this order.