HomeMy WebLinkAbout92-0052 CivilJUDY I. LEONARD, a/k/a IN THE COURT OF COMMON PLEAS OF
JUDY I. RAKOCY, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff .
v• CIVIL ACTION - LAW
JOHN J. RAKOCY, NO. 52 EQUITY 1992
Defendant PARTITION
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE SHEELY, P.J., and OLER, J.
ORDER OF COURT
AND NOW, this 2.1a day of April, 1993, upon careful
consideration of Defendant's Preliminary Objections, in the form of
a Motion To Strike and Demurrer, the Preliminary Objections are
SUSTAINED to the extent that Plaintiff is directed to file a more
specific pleading as to the property at issue and DENIED in all
other respects.
Plaintiff is GRANTED 20 days within which to file an amended
complaint.
BY THE COURT,
<i
JuWesley Oler,
Barbara Sumple-Sullivan, Esq.
The Williamsburg Center
312 Bridge Street
New Cumberland, PA 17070
William C. Vohs, Esq.
SAIDIS, GUIDO & MASLAND
26 West High Street
Carlisle, PA 17013
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JUDY I. LEONARD, a/k/a IN THE COURT OF COMMON PLEAS OF
JUDY I. RAKOCY, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. CIVIL ACTION - LAW
JOHN J. RAKOCY, NO. 52 EQUITY 1992
Defendant PARTITION
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE SHEELY, P.J., and OLER, J.
OPINION AND ORDER OF COURT
Oler, J.
For disposition in the present action in equity for partition
of real property are preliminary objections to a complaint, in the
form of a motion to strike and a demurrer. With respect to the
motion to strike, defendant notes that an exhibit purporting to
describe with particularity the property at issue was omitted from
the complaint as filed;' with respect to the demurrer, defendant
argues that the statute of frauds,2 res judicata,' and laches'
preclude recovery.'
Under Pennsylvania Rule of Civil Procedure 1554, a complaint
for partition of real property is to include "a description of the
property and ... a statement of the nature and extent of the
interest of each party in the property." Under Pennsylvania Rule
' Defendant's Brief in Support of Defendant's Preliminary
Objections to Plaintiff's Complaint, at 3-4.
2 Id., at 4-5.
' Id., at 5-6.
° Id., at 7-8.
5 See C.C.R.P. 210-7.
52 EQUITY 1992
of Civil Procedure 1030, "[a]ll affirmative defenses including ...
the defenses of ... laches, ... res judicata, [and] statute of
frauds ... shall be pleaded in a responsive pleading under the
heading 'New Matter,.i6
Since it was apparently Plaintiff's intent to more
specifically address the requirements of Rule 1554 through the
attachment of an exhibit, and since the issues of laches, res
judicata and statute of frauds are more properly raised in a
responsive pleading with new matter in this case, the following
Order will be entered:
ORDER OF COURT
AND NOW, this 2nd day of April, 1993, upon careful
consideration of Defendant's Preliminary Objections, in the form of
a Motion To Strike and Demurrer, the Preliminary Objections are
SUSTAINED to the extent that Plaintiff is directed to file a more
specific pleading as to the property at issue and DENIED in all
other respects.
Plaintiff is GRANTED 20 days within which to file an amended
complaint.
6 "[P]rocedure in an action in equity shall be in accordance
with the rules relating to a civil action," except as otherwise
provided. Pa. R.C.P. 1501. Although in appropriate circumstances
a preliminary objection may be based on laches [see Pa. R.C.P.
1509], the interests of a more complete record in this„ case
militate in favor of requiring the matter to be raised as an
affirmative defense in new matter [see Pa. R.C.P. 126].
2
52 EQUITY 1992
Barbara Sumple-Sullivan, Esq.
The Williamsburg Center
312 Bridge Street
New Cumberland, PA 17070
William C. Vohs, Esq.
SAIDIS, GUIDO & MASLAND
26 West High Street
Carlisle, PA 17013
:rc
BY THE COURT,
s/ J Wesley Oler, Jr.
J. Wesley Oler, Jr. J.
3