
    Sharp v. Zmiejko
    
      Paul R. Selecky and William Zacharellis, for plaintiff.
    
      G. John Bruger, for defendant.
    May 25, 1953.
   Pinola, J.,

By decision of the court rendered September 16, 1952, a preliminary objection to the complaint in this case was sustained and plaintiff was directed to amend his complaint within 20 days, “otherwise judgment for the defendant”.

Instead of amending the complaint, counsel for plaintiff deemed it expedient to begin a new action and they sought permission from President Judge Valentine to discontinue the above action, the writer being in Europe at the time. Since there was no difference between amending the complaint in this action or starting a new action to correct the objection, the president judge orally granted the permission.

Accordingly, counsel by praecipe entered October 1, 1952, discontinued the action.

On December 3, 1952, a new action was brought to January term, 1953, no. 95, and in the complaint the previous objectionable statement was eliminated.

Counsel for defendant contends that plaintiff was duty bound to file the amended complaint in this case and could not commence a new action. With this we do not agree. As President Judge Valentine pointed out, it is immaterial whether the objectionable statement is removed by way of an amended complaint or by filing a new complaint in another action.

Accordingly, we enter the following

Order

Now, May 25, 1953, the rule to show cause why the discontinuance of this action should not be stricken off is discharged.-  