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decided: September 22, 1980.


No. 15 May Term 1979, Appeal from the Order of the Superior Court at No. 108 March Term 1977, reversing the orders of the Court of Common Pleas of Dauphin County, Civil Action - Law, at No. 1346 June Term 1973


Clyde W. McIntyre, Harrisburg, for appellant.

Bruce E. Cooper, Stewart L. Cohen, Harrisburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Eagen

[ 491 Pa. Page 193]


H. James Conaway, Jr., the receiver of First State Life Insurance Company of America, Inc. (Conaway) filed a complaint in assumpsit against 20th Century Corporation (Century). Conaway's action sought to recover damages for failure to comply with an alleged oral contract between the parent corporation of First State Life and Century. According to the complaint, the contract concerned a promise by Century to purchase 500,000 shares of capital stock of First State Life for $250,000.

On November 6, 1974, Century filed preliminary objections to the complaint in the nature of a demurrer alleging, inter alia, that the cause of action was barred by the statute of frauds. On September 29, 1975, the trial court sustained Century's preliminary objections and dismissed Conaway's complaint. The court's order dismissing the complaint stated: "AND NOW, this 29th day of September, 1975, [Century's] demurrer is sustained in accordance with the above opinion, and the action dismissed." The opinion indicated that the demurrer was being granted on the basis of the statute of frauds; that, given this ruling, the other issues raised by the preliminary objections did not have to be discussed; that an implication in Conaway's brief on preliminary objections that other writings might exist to satisfy the statute of frauds could not cure the deficiencies of the complaint; that, if such writings existed, "the proper procedure would be to petition the court for reconsideration of the demurrer, attaching the writings"; and, that "[i]n this manner the court may consider whether such material overcomes the bar of the statute of frauds and whether [Conaway] should be granted leave to amend the complaint." No appeal was timely taken from that order.

[ 491 Pa. Page 194]

On October 20, 1975, the trial court entered an order allowing Conaway twenty days from that date to file a petition for reconsideration. On November 7, 1975, a petition for reconsideration was filed. Attached to the petition were several writings which Conaway alleged satisfied the statute of frauds. After Century responded to the petition and after Conaway responded to new matter raised by Century, the matter was argued before the trial court en banc. On March 19, 1976, the trial court issued a per curiam 'Memorandum on Petition for Reconsideration" and order. The memorandum stated, inter alia, that the court had "reviewed the items attached to [Conaway's] petition and find . . . they do not overcome the bar of the statute." The memorandum clearly addressed the merits of whether the writings attached to the petition for reconsideration satisfied the statute of frauds. The order merely denied the petition for reconsideration.

On April 15, 1976, Conaway appealed only the March 19, 1976 order of the trial court to the Superior Court. On July 12, 1978, a divided Superior Court reversed both the March 19, 1976 order which denied reconsideration and the September 29, 1975 order which sustained Century's preliminary objections, and remanded for further proceedings.*fn1 In an opinion by Judge Price, the majority ruled that the writings attached to Conaway's petition for reconsideration "afford[ed] a basis for believing that the offered oral evidence rest[ed] on a contract actually made," and that the court erred in granting the demurrer. We granted Century's petition for allowance of appeal.

Century initially contends that the Superior Court lacked jurisdiction over Conaway's appeal to that court because the appeal was untimely. We cannot agree.

Before discussing the jurisdictional issue, we are constrained to point out, as did the majority of the Superior

[ 491 Pa. Page 195]

Court,*fn2 that Century's preliminary objections in the nature of a demurrer which raised a waivable statute of frauds were improper since such a claim is properly raised in new matter. See Pa.R.C.P. 1017 and 1030; Duffee v. Judson, 251 Pa. Super. 406, 380 A.2d 843 (1977). But we shall overlook this procedural defect because, as the Superior Court pointed out, no objection on this ground was raised. Cf. Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

With regard to jurisdiction of the appeal, the Superior Court acknowledged that the appeal would be untimely if from the order of September 29, 1975, but ruled the appeal was timely because it was from the order of March 19, 1976. As to the failure to appeal the order of September 19, 1975, the Superior Court indicated that, in its view, the trial court had, in effect, granted reconsideration and thereby caused the time to appeal to run anew from the entry of the decision on reconsideration pursuant to Pa.R.A.P. 1701(b)(3) thereby excusing the failure to timely appeal the order of September 19, 1975.

While we do not agree with the Superior Court's rationale, we do agree that the appeal was timely filed in that court.

We need not detail all of our reasons for differing with the Superior Court because it suffices to point out that, if Pa.R.A.P. 1701(b)(3) were to be applied instantly,*fn3 the order of ...

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