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ISADORE AXLER AND SAMUEL D. BERGER v. FIRST NEWPORT REALTY INVESTORS (06/20/80)

filed: June 20, 1980.

ISADORE AXLER AND SAMUEL D. BERGER, MEMBERS OF COUNCIL, BY AND ON BEHALF OF THE UNIT OWNERS OF PLYMOUTH HILL CONDOMINIUM AND IN THEIR OWN RIGHT AS AGGRIEVED UNIT OWNERS, APPELLANTS,
v.
FIRST NEWPORT REALTY INVESTORS



No. 629 October Term 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division, No. 78 - 14286.

COUNSEL

Charles J. Weiss, Ambler, for appellants.

James W. Christie, Philadelphia, for appellee.

Spaeth, Cavanaugh and O'Kicki,*fn* JJ.

Author: Spaeth

[ 279 Pa. Super. Page 15]

This appeal arises from an order sustaining preliminary objections and dismissing a complaint in an action to quiet title.

On August 22, 1978, appellants filed, on behalf of themselves and the unit owners of Plymouth Hill Condominium, an action to quiet title to three residences in the condominium. On October 2, 1978, appellee, the current developer of the condominium, filed preliminary objections to the complaint, pleading, inter alia, that appellants' action was barred by the statute of frauds, 33 P.S. ยง 1 (1967). On October 13, appellants filed an answer to the preliminary objections, pleading, inter alia, that the statute of frauds could not be raised except as an affirmative defense in appellee's answer to the complaint. On February 22, 1979,

[ 279 Pa. Super. Page 16]

    after oral argument, the lower court sustained the preliminary objections and dismissed appellants' complaint. On February 28, appellants petitioned the lower court to reconsider its decision, but the petition was denied on March 19. This appeal followed.

In its memorandum filed pursuant to Pa.R.A.P. 1925(a), the lower court cited as the only ground of its order its conclusion that the complaint was barred by the statute of frauds. This conclusion was in error, for two reasons.

First, appellee was not entitled to raise the statute of frauds as a preliminary objection. Pa.R.C.P. 1017(b) provides:

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 ...


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