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March 22, 1954


Appeals, Nos. 87, 88 and 89, Jan. T., 1954, from orders of Court of Common Pleas of Montgomery County, June T., 1953, Nos. 28, 29 and 30, in cases of John Rorer et al. v. School District of North Wales Borough; Willard S. Detweiler et al. v. School District of Hatfield Borough, and John U. Longaker et al. v. School District of Lansdale Borough. Orders affirmed.


Thomas B. Moreland Porter, Jr., with him Foulke, Knight & Porter, for appellants.

Francis H. Bohlem, Jr., with him Louis M. Childs, 2nd, Anderson Page and High, Swartz, Childs & Roberts, for North Wales Borough School District, appellee.

Anderson Page, with him David E. Groshens, Robert B. Brunner, John E. Landis and Frances H. Bohlen, Jr., for Hatfield Borough School District and Lansdale Borough School District, appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 376 Pa. Page 557]


The plaintiffs in the three cases before us are residents and taxpayers respectively of the several School Districts of the Boroughs of Hatfield, Lansdale and North Wales, Montgomery County. They brought separate actions in equity to enjoin the defendant school districts from carrying out the provisions of certain agreements made by and between the defendants and three other school districts establishing a joint secondary school, and from entering into and carrying out the terms of a proposed lease agreement between the school districts forming the joint school and the North Penn Joint School Authority of Montgomery County. Relief was asked for on the ground that the defendants' participation in the proposed agreement of leasing and the performance of the joint school agreement would be violative of Article IX, Sections 8 and 10 of the Constitution of Pennsylvania and of the

[ 376 Pa. Page 558]

School Code. The defendants filed preliminary objections in the nature of demurrers in each case and attached thereto admittedly true and correct copies of the agreements referred to in the plaintiffs' complaints. The learned chancellor sustained the preliminary objections and dismissed the complaints, and from the decree entered in each case the present appeals are taken. The cases were argued in this Court at the same time and will be considered together as they were in the lower court.

Preliminarily the plaintiffs complain of the court below rendering a final judgment based upon facts not appearing in the complaints. More specifically they contend that defendants' demurrers were bad as speaking demurrers and that the lower court was in error in finding that a speaking demurrer is proper under the present Rules of Civil Procedure. While we cannot agree with this conclusion of the learned court below, we do not believe the preliminary objections in these cases may be adjudged speaking demurrers. The time honored principle that in passing on a demurrer a court cannot consider matters collateral to the pleading opposed but only such matters as arise out of the statement of claim or complaint itself, is still preserved under Pa. R.C.P. 1017. (See Goodrich-Am-ram Civil Practice § 1017(b)-11). In the instant case, the plaintiffs' causes of action were predicated on the unconstitutionality and illegality of the agreements entered into and about to be entered into by the defendants. Since the plaintiffs averred the existence of these documents and relied on them to establish their claims, the defendants could properly annex the agreements to their demurrers for they were in every sense of the term factual matters arising out of the complaints themselves. The instruments formed the very foundation of the suits and were properly considered by the

[ 376 Pa. Page 559]

    court below in determining whether the plaintiffs alleged any facts justifying the equitable relief sought. At the same time the court was not bound to accept as true the averments in the complaints as to the legal effect of the agreements, for although a demurrer admits every well pleaded, material, relevant fact and every inference fairly deducible from the facts pleaded (Byers v. Ward, 368 Pa. 416, 84 A.2d 307), it does not admit as true an alleged construction of a written instrument.

The six school districts, including the defendants, in 1952 entered into written agreements for the establishment of a joint secondary school to be known as North Penn Joint Secondary School pursuant to the provisions of the School Code (Act of March 10, 1949, P.L. 30, Article XVII, § 1701 et seq., 24 PS § 17-1701). The school districts caused the North Penn Joint School Authority to be incorporated and requested the Authority to make certain alterations and additions to the present Lansdale High School building with money borrowed by the Authority. A proposed lease agreement, dated as of October 1, 1953, was drawn up whereby title to the buildings would be conveyed to the Authority, which ...

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