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MACKUBBIN v. ROSEDALE MEMORIAL PARK (03/17/64)

March 17, 1964

MACKUBBIN, APPELLANT,
v.
ROSEDALE MEMORIAL PARK, INC.



Appeal, No. 59, Jan. T., 1964, from order of Court of Common Pleas of Bucks County, May T., 1961, No. 726, in case of Donald N. MacKubbin v. Rosedale Memorial Park, Inc., Frank J. Montemuro, Jr., trustee of Evergreen Memorial Park Ass'n, King David Cemetery, Inc. Et al. Order affirmed.

COUNSEL

F. C. Fiechter, Jr., for appellant.

Joseph J. Cohen, with him Liederbach and Eimer, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 413 Pa. Page 638]

OPINION BY MR. JUSTICE COHEN

This is an appeal from the order entered below sustaining preliminary objections to appellant's complaint.

Appellant brought this action pursuant to Rule 1061 of our procedural rules to quiet title to certain burial lots. It appears from the complaint that appellant's assignors had acquired sepulcher rights to various lots located in Evergreen Memorial Park Association (Evergreen). In January, 1954, Evergreen exchanged deed No. 1552 for the previously issued deeds in order to provide a contiguous burial area. The new deed conveyed rights to lots in the "Clark Section" of the cemetery. Evergreen subsequently became bankrupt and its land is now owned by two of the defendants, Rosedale Memorial Park, Inc. (Rosedale), and King David Cemetery, Inc. (King David).

Appellant admits in his complaint that he is unable to determine the present location of the burial lots in issue since there is no cemetery area known as the

[ 413 Pa. Page 639]

"Clark Section". Nevertheless, he prays for a judicial decree of his exclusive right to the lots described in deed No. 1552, or, alternatively, in the deeds exchanged therefor. Rosedale and King David maintain that the tract in issue is not located on their premises; defendant, Thomas A. Morris, suggests that Evergreen in deed No. 1552 mistakenly conveyed lots which it did not own.

In the court below, Rosedale by preliminary objection contended (1) that the complaint failed to sufficiently describe the land in question; and (2) that the complaint was not cognizable as an action to quiet title under Rule 1061. The lower court sustained both of these objections with leave to amend the complaint. Instead of attempting to conform to the court's order, appellant took this appeal. We hold that the court below correctly ruled in this matter.

With regard to the first preliminary objection, Rule 1065 provides that a complaint in an action to quiet title must describe the land in question.*fn1 As noted above, appellant admits that he is unable to locate or describe the burial lots in issue. Indeed, it seems that one of the purposes of this suit is to discover such information. ...


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