decided: January 5, 1965.
Appeal from judgment of Court of Common Pleas of Washington County, Sept. T., 1961, No. 263, in case of Carl Muia and Minnie Muia, his wife, v. Bernard Fazzini and Noreen Fazzini, his wife.
Arnold W. Hirsch, for appellants.
A. J. DeMedio, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ.
Author: Per Curiam
[ 416 Pa. Page 378]
The court below entered judgment in favor of defendants pursuant to preliminary objections in the nature of a demurrer filed to plaintiffs' amended complaint in ejectment, with abstract of title attached, on which plaintiffs based their right of possession to the two lots in question. The lower court held that since the assessment on the lots did not properly identify the assessed property, a tax sale based on the improper identification of the property was void and passed no title to plaintiffs. However, in order to make this determination it was necessary for the court below to consider factual matters neither averred in the complaint nor disclosed in any other part of the record.
[ 416 Pa. Page 379]
The lower court was also of the opinion that plaintiffs were guilty of laches which we feel was a premature determination. Hence, the judgment entered by the lower court will be vacated and the record remanded to afford plaintiffs the opportunity to either further amend their complaint or require defendants to answer.
Judgment vacated with a procedendo.
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