Appeal, No. 5, April T., 1955, from order of Court of Common Pleas of Allegheny County, April T., 1954, No. 1977, in case of August R. Costa v. The City of Pittsburgh and Pittsburgh Outdoor Advertising Company. Order affirmed; reargument refused January 31, 1955.
A. N. Brunwasser, Pittsburgh, for appellant.
Harry C. Beschel, City and School Tax Atty., Alvin J. Porsche, Asst. City and School Tax Atty., Pittsburgh, for City of Pittsburgh.
Eugene B. Strassburger, Eugene B. Strassburger, Jr., Pittsburgh, for Pittsburgh Outdoor Advertising Co.
Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
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On February 14, 1952, August R. Costa executed a proposal to purchase from the City of Pittsburgh certain
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real estate acquired by the City at tax sale. The proposal provided inter alia: "In the event that City Council and the Mayor act favorably in the matter and the same is approved by the Court... and the undersigned fails to complete the offer by payment of the balance of the purchase price within 60 days from approval by the Court, the aforesaid hand money shall be considered as liquidated damages to be applied to the costs..." The proposal was approved by the City Council and the Mayor on February 29, 1952, and a petition was presented at No. 223 January Term 1953C to the Court of Common Pleas of Allegheny County requesting approval of the sale. By an order dated November 28, 1952, the Court approved the sale and Costa deposited a check for $75.00, representing the down payment of ten percent. The Mayor executed a deed on December 10, 1952, and Costa was repeatedly requested to make payment of the balance of the purchase price which he failed to do. Thereafter, the property was sold to the Pittsburgh Outdoor Advertising Company. On February 24, 1952, Costa procured the issuance of a summons in equity and, after being ruled to do so, filed a complaint alleging that he had tendered the balance of the purchase price on or about September 1, 1953, at which time the sale to the Company had not been completed, and praying that the consummation of the sale be enjoined and the City be ordered to convey to him. This appeal is from an order of the court en banc sustaining preliminary objections and dismissing the complaint.
We will consider the preliminary objections in reverse order, as did the court below. The second objection avers that the matter in question is res judicata by virtue of the action of the Court at No. 223 January Term 1953C, impliedly incorporated by reference. Appellant contends that, since his complaint did not refer
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to the prior proceeding, judicial notice cannot be taken of it, that a speaking demurrer is bad, and that the matter can only be decided on a trial, citing Steel v. Levy, 282 Pa. 338, 127 A. 766. But that case has been expressly superseded. See Thal v. Krawitz, 361 Pa. 178, 63 A.2d 33. Where the complaint contains no reference to the prior proceeding, the correct practice is to set forth the defense of res judicata in an answer by way of new matter: Jones v. Costlow, 354 Pa. 245, 47 A.2d 259. However, Mr. Justice JONES stated in that case that preliminary objections have been held competent to raise the defense of res judicata under some circumstances. Without announcing a rule of general application, we have concluded that a contrary holding in the particular situation here presented would serve no useful purpose. As was said by ...