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GUZEK v. EMPIRE WHOLESALE COMPANY (05/28/59)

THE SUPREME COURT OF PENNSYLVANIA


May 28, 1959

GUZEK
v.
EMPIRE WHOLESALE COMPANY, APPELLANT.

Appeals, Nos. 232 and 233, Jan. T., 1958, from order of Court of Common Pleas of Lackawanna County, Sept. T., 1957, No. 12, in equity, in case of A. J. Guzek v. Empire Wholesale Company, Inc. et al. Appeals dismissed. Equity. Adjudication filed dismissing defendants' preliminary objections, and order entered, opinion by HOBAN, P.J. Defendants appealed.

COUNSEL

Ralph P. Needle, Carlon M. O'Malley, Sr., and O'Malley, Morgan, Bour & Gallagher, for appellants.

Joseph T. McDonald, and Everett A. Rosser, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Jones

[ 396 Pa. Page 79]

OPINION BY MR. CHIEF JUSTICE JONES

These appeals were purportedly taken for the purpose of obtaining in limine a review of a jurisdictional question under the provisions of the Act of March 5, 1925, P.L. 23. However, the record fails to disclose any such appealable question.

The plaintiff, a stockholder, director and creditor of the defendant corporation, instituted this suit in equity against the corporation and its executive officers seeking redress of certain alleged corporate mismanagement on the part of the defendants to the plaintiff's hurt. The defendants filed preliminary objections in the nature of a demurrer to the complaint, also incorporating a motion to strike scandalous and impertinent matter and an allegation that the plaintiff had an adequate remedy at law.

[ 396 Pa. Page 80]

A demurrer to a complainant's averments of fact, on the ground that they do not support the asserted cause of action, does not raise a jurisdictional question. Neither does a motion to strike alleged scandalous and impertinent matter go to the court's jurisdiction of either persons or subject matter. Nor does an allegation that the plaintiff has an adequate remedy at law, (which is merely an objection to the form of the action) raise a jurisdictional question appealable under the Act of 1925. Section 4 of the Act specifically so declares, viz., "The right of appeal here conferred is not intended to cover questions of jurisdiction which go to the form of the action alone as between law and equity, such as provided for in the Act of June seven, one thousand nine hundred and seven (Pamphlet Laws, four hundred and forty)." 12 PS ยง 675.

The court below properly overruled the defendants' preliminary objections.

Disposition

Appeals dismissed.

19590528

© 1998 VersusLaw Inc.



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