Appeal from order of Court of Common Pleas of York County, August T., 1963, No. 45, in case of Leonard J. Staub v. Tehol Corporation.
J. Edward Pawlick, for appellant.
Donald B. Waltman, for appellee, submitted a brief.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J.
[ 205 Pa. Super. Page 607]
This appeal arises from an action of assumpsit originally brought on a general warranty clause in a deed from appellee-defendant to appellant-plaintiff conveying an improved property in the City of York, Pennsylvania. The plaintiff alleged that the covenant of
[ 205 Pa. Super. Page 608]
general warranty had been breached by the defendant in withholding from him information to the effect that the building inspector of the City of York had given him notice prior to the delivery of the deed that one wall of the building was unsafe and in danger of falling, constituting a violation of the building code of that city.
Defendant filed preliminary objections to the original complaint which set forth first, that there was pending an equity action in York County in which defendant was seeking to have the aforesaid deed reformed by having inserted therein that "Seller makes no warranty as to the condition of the improvements," so as to conform to the agreement of sale previously executed by the parties; and secondly, that the complaint did not sufficiently specify the items of damage claimed. Later, at the argument of these objections, the court suggested and allowed, nunc pro tunc, defendant to add to its preliminary objections a third reason, that the complaint failed to state a cause of action. Thereafter, the objections were sustained and leave given to plaintiff to file an amended complaint.
Plaintiff's amended complaint alleged that the deed of general warranty had been made "with intent to deceive and defraud the Plaintiff, the said Defendant falsely and fraudulently failed to disclose to the Plaintiff that the City of York had demanded that repairs be made to the building, although the defendant knew that the plaintiff planned to use said building." He also changed the allegations as to his damages. However, he did not change the form of action to trespass as he should have done if he intended to rely on fraud and not breach of warranty. Korona v. Bensalem, 385 Pa. 283, 122 A.2d 688 (1956).
Defendant filed preliminary objections to the amended complaint, which again alleged the pendency of the prior equity action, the insufficiency of the allegations
[ 205 Pa. Super. Page 609]
as to damages and that the allegation of fraud was not sufficiently specific. Its objections were again sustained on the sole ground that the allegation of ...