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PHILADELPHIA v. MAGNOLIA CEMETERY COMPANY PHILADELPHIA (03/24/72)

decided: March 24, 1972.

PHILADELPHIA, TO USE OF DEPAUL & SON, APPELLANT,
v.
MAGNOLIA CEMETERY COMPANY OF PHILADELPHIA



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, No. MLD746, in case of The City of Philadelphia to the use of Tony DePaul & Son v. The Magnolia Cemetery Company of Philadelphia.

COUNSEL

David H. Kubert, with him Harry P. Voldow, for use plaintiff, appellant.

Karl I. Schofield, Deputy City Solicitor, with him Levy Anderson, City Solicitor, for intervenor, appellant.

Robert Boyd, Jr., submitted a brief for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 220 Pa. Super. Page 425]

The appellant in this case is a contractor who paved the cartway and installed curbing along a footway adjoining the real estate of appellee. Appellant filed a municipal claim in the name of the City of Philadelphia to his use by virtue of the provisions of the Act of May 16, 1923, P. L. 207, as amended, 53 P.S. ยง 7101 et seq. On November 10, 1970, appellant caused a scire facias sur municipal claim to issue. Appellee, a cemetery company, filed a paper it called a demurrer to plaintiff's claim on July 2, 1971. On August 6, 1971, the lower court sustained the demurrer and dismissed

[ 220 Pa. Super. Page 426]

    the claim. The City of Philadelphia has intervened as an appellant.

The demurrer avers that appellee is a nonprofit cemetery corporation and exempt from municipal claims; that it at one time waived damages for the taking of a street in the belief it would be exempted; and that the description of the real estate in the claim was defective. Without any reply having been filed by appellant and without any hearing, the lower court found that the appellee was exempt from liability for municipal claims and that the description of the real estate in the claim was defective. This was error and must be reversed.

A demurrer is the proper way to show any deficiency as to the form of the lien or the insufficiency of the averments contained therein. City of York v. Miller, 254 Pa. 436, 98 A. 1049 (1916). However, a demurrer cannot inject facts not appearing in the pleading to which it is filed. Borough of Newtown v. Murfit, 79 Pa. D. & C. 135 (1951). A demurrer cannot supply facts missing in a complaint and in passing on the demurrer the court may consider only such matters as arise out of the complaint itself. Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964). Therefore, the allegations of the demurrer relative to appellee's exempt status were improperly considered by the court below.

In passing on demurrers to pleadings every material and relevant fact well pleaded and every inference fairly deducible therefrom are to be taken as true. Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1958). The municipal claim names The Magnolia Cemetery Company of Philadelphia as owner. This must be accepted ...


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