HomeMy WebLinkAbout91-3055 CivilJONATHAN E. KEOUGH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
WILLIAM B. TENNY,
Defendant 3055 CIVIL 1991
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
TO DEFENDANT'S COUNTER -REPLY
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 314 day of January, 1993, upon consideration of
Plaintiff's preliminary objections to Defendant's counter -reply,
and for the reasons stated in the accompanying Opinion, Plaintiff's
motion to strike is GRANTED and Plaintiff's demurrer is DENIED.
BY THE COURT,
Jonathan E. Keough, Esq.
P.O. Box 117
Marysville, PA 17053-0177
William B. Tenny
P.O. Box 637
Camp Hill, PA 17001-0637
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J.
JONATHAN E. KEOUGH, s IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v• CIVIL ACTION - LAW
WILLIAM B. TENNY, .
Defendant 3055 CIVIL 1991
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
TO DEFENDANT'S COUNTER -REPLY
BEFORE OLER, J
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case are preliminary objections filed
by Jonathan E. Keough (Plaintiff) to a counter -reply filed by
William B. Tenny (Defendant). The counter -reply was to a reply
with new matter' filed by Plaintiff. The counter -reply responded
not only to new matter in the reply but also to responses in the
reply not so labeled. The preliminary objections to the counter -
reply are (1) a motion to strike that part of the counter -reply
responding to matters other than new matter and (2) a demurrer.
Motion To Strike. Pennsylvania Rule of Civil Procedure
1017(a) states that "the pleadings in an action are limited to a
complaint, an answer thereto, a reply if the answer contains new
matter or a counterclaim, [and] a counter -reply if the reply to a
counterclaim contains new matter ...."2 "A counter -reply is
permitted solely for the purpose of admitting or denying new matter
' This reply with new matter was titled a "Reply to the
Defendant's New Matter and Answer to Defendant's Counterclaim As
Affected by Order of Court Containing Plaintiff's New Matter and
Counterclaims."
2 Pa. R.C.P. 1017(a)(emphasis added).
3055 Civil 1991
raised in a reply to a counterclaim." 2 Goodrich Amram 2d,
§1017(a):10 (1991) (emphasis added).
A party is not permitted to file a counter -reply to that
portion of a reply which is not new matter. For this reason, the
motion to strike will be granted.
Demurrer. "A demurrer is an assertion that a pleading does
not set forth a legally sufficient defense ... [and] may be used to
test the sufficiency of ... a defendant's counter -reply. 2
Goodrich Amram 2d, §1017(b):25 (1991). As noted above, the purpose
of a counter -reply is to respond to new matter raised in a reply to
a counterclaim.
In the present case, Defendant's counter -reply includes
specific denials of the averments of new matter in Plaintiff's
reply. As such, it is not insufficient and the demurrer will be
denied.
ORDER OF COURT
AND NOW, this 8th day of January, 1993, upon consideration of
Plaintiff's preliminary objections to Defendant's counter -reply,
and for the reasons stated in the accompanying Opinion, Plaintiff's
motion to strike is GRANTED and Plaintiff's demurrer is DENIED.
BY THE COURT,
J. Wesley Oler Jr
J.
0
3055 Civil 1991
Jonathan E. Keough, Esq.
P.O. Box 117
Marysville, PA 17053-0177
William B. Tenny
P.O. Box 637
Camp Hill, PA 17001-0637
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