No. 688 October Term, 1977, Appeal from the Order Dated December 7, 1976, in the Court of Common Pleas of Tioga County, at No. 166 Civil Division, 1976, In Assumpsit.
Harold B. Fink, Jr., Coudersport, for appellants.
No appearance entered nor brief submitted for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 251 Pa. Super. Page 408]
Appellants contend that the lower court erred in sustaining appellee's preliminary objections. We agree and, therefore, reverse the order of the lower court.
On February 11, 1976, appellants filed a summons in assumpsit against appellee. Following the disposition of preliminary matters, appellants filed a complaint against appellee on July 12, 1976. In the complaint, appellants alleged that in July, 1975, they entered into an oral contract with appellee in which they agreed to buy a mobile home from appellee at appellee's cost. After appellants built a foundation for the mobile home, appellee delivered it to the site in Tioga County. Appellants paid appellee a total of $25,785 for the mobile home. Appellants also alleged that in January, 1976, they discovered that appellee's actual cost was $16,000 not $25,785. Appellants requested that appellee return the difference between the amount they paid and appellee's cost; appellee refused.
On August 17, 1976, appellee filed preliminary objections in the nature of a demurrer. In the objections, he raised the statute of frauds and alleged that appellants failed to state a cause of action due to the ambiguity in the contract. The appellants responded that appellee improperly raised the statute of frauds in preliminary objections and that the contract falls within an exception to the statute. The lower court sustained the preliminary objections. Initially, it held that the Uniform Commercial Code*fn1 (hereinafter UCC) and its statute of frauds governed the case because it involved
[ 251 Pa. Super. Page 409]
the sale of goods. The court found the statute to be non-waivable and therefore properly raised in preliminary objections, and that the oral contract did not comply with the UCC statute of frauds. Accordingly, it entered an order sustaining appellee's preliminary objections. This appeal followed.
Appellants contend that the lower court improperly sustained appellee's preliminary objections. A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom for the purposes of testing the legal sufficiency of the challenged pleading. International Union of Operating Engineers v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974). In disposing of the questions of law raised by a demurrer, the issues must be resolved by the court on the basis of the pleadings alone. Moreover, "preliminary objections 'should be sustained only in cases which are clear and free from doubt.'" Dana Perfumes Corp. v. The Greater Wilkes-Barre Industrial Fund, Inc., 248 Pa. Super. 295, 375 A.2d 105, 107 (1977).
Pennsylvania Rule of Civil Procedure 1017(b)(4); 42 P.S. § 1017, provides as follows: "(b) preliminary objections are available to any party and are limited to . . . . (4) a demurrer, which may include the bar of a non-waivable statute of limitations or frauds which bars or destroys the right of action and the applicability of which appears on the face of the complaint or counterclaim; . . . ." As restated by Goodrich-Amram 2d, in Standard Pennsylvania Practice, § 1017(b)(4): "[i]f the statute of limitations or statute of frauds provides a bar against the plaintiff which cannot be waived by the defendant and which destroys the right of action of the plaintiff, and the applicability of which appears on the face of the plaintiff's complaint or the defendant's counterclaim, the defense of the statute may ...