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BRENNAN v. SMITH (09/07/72)

decided: September 7, 1972.

BRENNAN
v.
SMITH, SECRETARY OF THE DEPARTMENT OF LABOR AND INDUSTRY, ET AL.



Original jurisdiction in case of Joan M. Brennan v. Paul J. Smith, Secretary of the Department of Labor and Industry, and Joseph J. Marino, Deputy Secretary of the Department of Labor and Industry of the Commonwealth of Pennsylvania.

COUNSEL

W. J. Krencewicz, for plaintiff.

Herbert S. Cohen, Assistant Attorney General, with him Charles S. Solit, General Counsel, and J. Shane Creamer, Attorney General, for defendants.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 6 Pa. Commw. Page 343]

Plaintiff, Brennan, was appointed hearing stenographer by the Secretary of Labor and Industry in April of 1964 and served in that capacity until February 23, 1972 when she was notified of her dismissal by letter from her superior, Joseph Marino, effective February 29, 1972. The stated reason was reorganization of the Department of Labor and Industry.

On March 13, 1972, plaintiff filed a Complaint in Equity asking reinstatement and compensatory and punitive damages against the defendant Marino, Deputy

[ 6 Pa. Commw. Page 344]

Secretary of the Department. The complaint alleges that he was not authorized by the Secretary to dismiss the plaintiff; that he has no authority, under the aegis of his office, to dismiss the plaintiff; that there was in fact no reorganization of the Department; and finally that the dismissal violated plaintiff's rights under the Public Employe Relations Act.*fn1

The Commonwealth filed preliminary objections consisting, inter alia, of a demurrer, alleging that the complaint failed to state a cause of action; a petition raising a question of jurisdiction; and a motion to strike because of scandalous and impertinent matter.

The first preliminary objection filed to plaintiff's complaint is captioned "Demurrer to Plaintiff's Complaint" and states: "Plaintiff's complaint fails to state a cause of action against the defendants." This demurrer must be dismissed. Its generality violates Rule 1028(a) of the Pennsylvania Rules of Civil Procedure which provides that "[p]reliminary objections shall state specifically the grounds relied upon."*fn2 Under this rule, it is not enough merely to object generally to the complaint by contending that it fails to set forth a cause of action. The objection must set forth specific reasons why the complaint is inadequate. See Dillon v. Evans, 69 D. & C. 430 (1949); 29 Pennsylvania Law Encyclopedia, Pleadings § 123. In 2A Anderson, Pa. Civil Practice § 1028.1(a), 497, it is stated "a preliminary objection in the nature of a demurrer is itself insufficient when it merely states that a pleading is insufficient and raises no issue or does not set forth a cause of action." See also Thomas v. Osborn, 38 D. & C. 2d 431, 432 (1965).

[ 6 Pa. Commw. Page 345]

The arguments made by the defendants in support of the demurrer, both orally and in their brief, must be ignored by us since they violate the rule against "speaking demurrers." We know from the hornbook that defendant in support of a demurrer cannot, by brief, aver nor can a court consider, the existence of facts not on the record. Linda Coal and Supply Company v. Tasa Coal Company, 416 Pa. 97, 102, 204 A.2d 451 (1964); Detweiler v. Hatfield Borough School District, 376 Pa. 555, 558, 104 A.2d 110 (1954). The plaintiff has objected to the procedure ...


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