
    WIOO Inc. v. Weibley
    
      Edgar R. Casper, for plaintiff.
    
      Paul W. Grego, for defendant.
    
      June 10, 1992
   BAYLEY, J.,

Plaintiff seeks damages for an alleged breach of an oral agreement. Suit was instituted by the filing of the praecipe for the issuance of a writ of summons on August 9, 1989. On September 19, 1989, counsel for defendant entered a written appearance. Endorsed on the appearance was a demand for a jury trial. On November 21,1989, defense counsel entered a similar written appearance and filed a praecipe for a rule against plaintiff to file a complaint. An endorsement with a demand for a jury trial was set forth on both of those documents. Plaintiff filed a complaint on December 7, 1989; defendant filed an answer with new matter on January 30, 1990; and plaintiff filed a reply to the new matter on February 13, 1990. None of these three pleadings contained an endorsement with a demand for a jury trial, nor has any separate writing been filed by either party demanding a jury trial. The case was listed by plaintiff for a non-jury trial, and a pretrial conference was held on June 1,1991. Defendant maintains that the trial must be by jury.

Pennsylvania Rule of Civil Procedure 1007.1(a) provides:

“In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than 20 days after service of the last permissible pleading. The demand shall be made by endorsement on a pleading or by a separate writing.” (emphasis added)

A right to a jury trial exists in this case; therefore, the issue is whether defendant has waived a jury trial pursuant to Rule 1007.1. Pennsylvania Rule of Civil Procedure 1017, titled “Pleadings Allowed” provides:

“(a) [Ejxcept as provided by Rule 1041.1, the pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to the counterclaim contains new matter, a preliminary objection and an answer thereto.”

There are three pleadings filed in this case; a complaint filed by plaintiff, an answer with new matter filed by defendant, and a reply to new matter filed by plaintiff on February 13,1990. These pleadings are not endorsed with a demand for a jury trial nor did any party file a written demand for a jury trial not later than 20 days after February 13, 1990, which would have been the last day for doing so based on the pleadings in this case. Accordingly, a jury trial has been waived since the endorsements on the entry of an appearance by defense counsel, and on the praecipe for the issuance of a rule against plaintiff to file a complaint, did not preserve the right to a jury trial because those endorsements are not on pleadings as required by Rule 1007.1, as pleadings are defined by Rule 1017. Rule 1007.1(a) distinguishes between an endorsement on a pleading and a separate writing; therefore, an endorsement on documents that are not pleadings, is not a separate writing that can preserve the right to a jury trial. Jones v. VanNorman, 513 Pa. 572, 522 A.2d 503 (1987). For the foregoing reasons, the following order is entered.

ORDER OF COURT

And now, June 10, 1992, the request of defendant for a jury trial, is denied. 
      
      . Rule 1041.1 sets forth special provisions applicable only to asbestos litigation.
     
      
      . The statement at 7 Standard Pennsylvania Practice Second §42.3, citing Hoeke v. Mercy Hospital of Pittsburgh, 254 Pa. Super. 520, 386 A.2d 71 (1978), that a “demand for a jury trial can be filed with an appearance,” is not supported by Hoeke. Such an issue was not raised or decided in Hoeke.
      
     