Appeal from decree of Court of Common Pleas of Indiana County, March T., 1970, No. 2, in case of Royal Oil & Gas Corporation v. Tunnelton Mining Company.
Richard B. Tucker, Jr., with him John P. Papuga, Donald M. Miller, Tucker, Burke, Campbell & Arensberg, and Miller and Cope, for appellant.
William H. Eckert, with him Willis A. Siegfried, Jr., David R. Tomb, Jr., Eckert, Seamans, Cherin & Mellott, and Tomb and Tomb, for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts took no part in the consideration or decision of this case.
This is an appeal from the decree of the Indiana County Court of Common Pleas sustaining appellee's
preliminary objections to appellant's complaint in equity.
Appellant's complaint sought specific performance of a contract to convey coal and mining rights, the reformation of a coal lease agreement and an accounting for royalties on coal mined. After various preliminary objections, an amended complaint was filed to which further preliminary objections were filed consisting, inter alia, of a demurrer because (1) the action involved a contract for the sale of land without a sufficient written memorandum under the statute of frauds, Act of March 21, 1772, 1 Sm. L. 389, § 1, 33 P.S. § 1; and (2) the action is barred by the statute of limitations, Act of April 22, 1856, P. L. 532, § 6, 12 P.S. § 83. In sustaining the preliminary objections, it was the opinion of the court below that, "the pleadings indicate that there is a violation of the Statute of Frauds insofar as any agreement is concerned in this case and also that there is a violation of the Statute of Limitations." Because of procedural irregularities, it is necessary to reverse that judgment.
By our past decisions we have clearly held that the statute of frauds provision relating to sales of interests in real estate is a waivable defense which must be raised under Pa. R. C. P. 1030 (new matter) and not under Pa. R. C. P. 1017(b) (preliminary objections). Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968); Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444 (1968); Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965). Likewise, an affirmative defense of the statute of limitations must be pleaded as new matter pursuant to Rule 1030. Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969); Mangino v. Steel Contracting Co., 427 Pa. 533, 235 A.2d 151 (1967). Accordingly, the appellee erred in raising these defenses by preliminary objections.
However, appellee strenuously urges us to ignore this procedural error and dispose of this appeal on the
merits, especially since appellant never voiced any objection to this procedure in the court below. Faced with this identical situation in Rufo v. Bastian-Blessing Co., 417 Pa. 107, 114, 207 A.2d 823, 826 (1965), we stated: "Plaintiffs argue on appeal that the statute of limitations is an affirmative defense to be pleaded under new matter rather than by preliminary objection, and that they must be given an opportunity to overcome the pleading of such a defense. It is true that we have held that ordinarily the statute of limitations must be pleaded as new matter pursuant to Pa. R. C. P. 1030. See Quaker City Chocolate and Confectionery Company v. Delhi-Warnock Building Association, 357 Pa. 307, 314, 53 A.2d 597, 601 (1947). But plaintiffs did not raise any question in the court below of whether defendant's pleading might be defective. Plaintiffs could easily have filed a preliminary objection to defendant's preliminary objection in the nature of a motion to strike because of lack of conformity to law or rule of court under Pa. R. C. P. 1017(b)(2). 2 Anderson Pennsylvania Civil Practice § 1017.14. Having failed to do so they may be deemed to have waived any objection to defendant's form of pleading. Pa. R. C. P. 1032, 2A Anderson Pennsylvania Civil Practice § 1032.3." Cf., Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970); Callery v. Blythe Twp. Mun. Auth., 432 Pa. 307, 243 A.2d 385 (1968); Greenberg v. Aetna Ins. Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907 (1968). See, also, Will v. ...