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MARY JANE "JAYMIE" CHICARELLA DOMINSKI v. JOHN C. GARRETT AND MUNYEEN C. GARRETT (03/07/80)

filed: March 7, 1980.

MARY JANE "JAYMIE" CHICARELLA DOMINSKI, AND EVELYN C. TELESKO, ADMINISTRATRIX OF THE ESTATE OF DANIEL W. CHICARELLA, JR., APPELLANTS,
v.
JOHN C. GARRETT AND MUNYEEN C. GARRETT



No. 1494 April Term, 1978, Appeal from the Order in the Court of Common Pleas of Washington County, Civil Division, No. 363 May Term, 1978, A.D.

COUNSEL

Anthony J. Seneca, Washington, for appellants.

Frank C. Carroll, Washington, for appellees.

Price, Hester and Montgomery, JJ. Montgomery, J., concurs in the result.

Author: Price

[ 276 Pa. Super. Page 21]

This appeal is brought from an order of the court of common pleas sustaining preliminary objections to plaintiff-appellants' suit in ejectment. The court dismissed the suit and denied appellants the opportunity to file an amended complaint. Appellants claim that the court of common pleas erred procedurally in deciding the preliminary objections by drawing unwarranted factual conclusions and ignoring other factual allegations of the complaint and also erred in its conclusions of law. We agree that the preliminary objections were improperly sustained, and we reverse the order of the court.

Appellants' complaint in ejectment set forth the following facts about this dispute. Daniel W. Chicarella and appellant, Mary Jane Dominiski, owned a mobile home which, through an agreement signed on May 17, 1977, they arranged to sell to appellees. The agreement, which was attached to and incorporated by reference in the complaint, provided that the mobile home would be sold "for the balance due under a Security Agreement . . . account number 794046" which appellees agreed to pay in specified monthly sums to the bank that held the encumbrance. Appellees received an immediate right to possession of the mobile home, and the original owners retained title until the balance due the bank was paid. Appellees had made two monthly payments to the bank pursuant to this agreement when, on June 9, 1977, Daniel Chicarella died. Proceeds

[ 276 Pa. Super. Page 22]

    from his credit life insurance policy were paid to the bank and satisfied a substantial portion of the security agreement held by it. A sum of $758.28 from a "physical damage policy" insuring the mobile home was also applied to the debt, thereby further reducing the security agreement. On November 4, 1977, $527.34 remained as the balance due under the security agreement, and this amount was paid to the bank by appellants to satisfy that agreement.

Appellants brought an action in ejectment demanding damages because appellees allegedly had not complied with the terms of the sales agreement and had been in possession of the mobile home without any compensation to appellants. Appellees raised preliminary objections to the complaint averring that "in accord with the pleading of the plaintiffs," they had, in effect, paid the security agreement in compliance with the sales agreement, except for the $527.34 balance, which they agreed to pay to the appellants should the court sustain their objections. They also objected that ejectment was an inappropriate form of proceeding. The court of common pleas treated this preliminary objection as being in the nature of a demurrer on the grounds that appellees had fully paid for the property through the credit life policy, leaving appellants no cause of action.

Initially, we find it incumbent to comment on the form utilized by appellees in their preliminary objections. A more confusing pleading would be difficult to imagine since appellees have specified different grounds for their objections without delineating where one ends and the next begins, and without explicitly designating the particular objection under Pa.R.C.P. No. 1017(b)*fn1 upon which they rely. Pa.R.C.P. No. 1028, which addresses the form to be used for preliminary objections, was designed to prevent uncertainty as to the particular deficiency of which complaint is made and requires that preliminary objections state specifically

[ 276 Pa. Super. Page 23]

    the grounds relied upon. Although appellants have waived any objections to the form of this pleading by failing to raise the issue, we may express our disapproval. Since the course of litigation would not be served by dismissing these preliminary objections, and in accord with Pa.R.C.P. No. 126 which seeks to secure just and speedy determinations of proceedings, we will treat appellees' preliminary objections as a demurrer since we assume that is their intended effect and because that is the manner in which ...


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