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DAVID SAMUELS T/A MIDDLE BUCKS LANDSCAPING v. EDWARD N. HENDRICKS AND SARAH B. HENDRICKS (05/21/82)

filed: May 21, 1982.

DAVID SAMUELS T/A MIDDLE BUCKS LANDSCAPING, APPELLANT,
v.
EDWARD N. HENDRICKS AND SARAH B. HENDRICKS, HUSBAND AND WIFE



No. 318 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Division, at No. 80-10661-13-5.

COUNSEL

John M. McClure, Doylestown, for appellant.

Robert F. Ruehl, Doylestown, for appellees.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Hoffman

[ 300 Pa. Super. Page 12]

Appellant contends that the lower court erred in: (1) dismissing his complaint as to appellee Sarah B. Hendricks; and (2) transferring from equity to law the action as to appellee Edward N. Hendricks. For the following reasons,

[ 300 Pa. Super. Page 13]

    we affirm the dismissal as to Mrs. Hendricks and quash the appeal as to Mr. Hendricks.

In October, 1978, appellant contracted to perform extensive landscaping and driveway repair work upon Mr. Hendricks's Bucks County residence. Sometime after completing the work in October, 1979, appellant and Mr. Hendricks compromised appellant's claim for materials and labor. Mr. Hendricks subsequently married and conveyed the property to himself and Mrs. Hendricks as tenants by the entireties. In October, 1980, appellant commenced this action in equity to recover the unpaid balance of $6,700, and to enjoin appellees' purported fraudulent conveyance.*fn1 Appellees' preliminary objections asserted that appellant had an adequate remedy at law. See Pa.R.Civ.P. 1509(c). Additionally, Mrs. Hendricks demurred to the complaint by alleging that it failed to state a cause of action. The lower court sustained the preliminary objections, dismissing the complaint as to Mrs. Hendricks, and transferring the action against Mr. Hendricks to the law side of the court. This appeal followed.*fn2

Appellant contends initially that the lower court erred in entertaining Mrs. Hendricks's demurrer because she had failed to specify any defect in the complaint. In filing a preliminary objection in the nature of a demurrer, Pa.R.Civ.P. 1017(b)(4), a party must "specifically state the grounds relied upon," Pa.R.Civ.P. 1028(a). A demurrer generally averring that the "'complaint fails to state a cause of action . . .' . . . must be dismissed [because] [i]ts generality violates [r]ule 1028(a)." Brennan v. Smith, 6 Pa. Commonwealth Ct. 342, 344, 299 A.2d 683, 684-85 (1972). While we agree with appellant that the demurrer was not specific,

[ 300 Pa. Super. Page 14]

"we nevertheless conclude that the lower court properly entertained the preliminary objection because appellant waived the procedural defect by failing to file a preliminary objection to appellee's preliminary objection." National Recovery Systems v. Frebraro, 287 Pa. Superior Ct. 442, 444, 430 A.2d 686, 687 (1981) (preliminary objection raising illegality). See also Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 104, 415 A.2d 53, 54 (1980) (res judicata); Freach v. Commonwealth, 471 Pa. 558, 564-65 n.6, 370 A.2d 1163, 1166 n.6 (1977) (immunity from suit); Rufo v. Bastian Blessing Co., 417 Pa. 107, 114, 207 A.2d 823, 826 (1965) (statute of limitations). Noncompliance with rule 1028(a) is a defect which must be raised by a preliminary objection in the nature of a motion to strike under rule 1017(b)(2) or in the nature of a motion for more specific pleading under rule 1017(b)(3). See 2 Goodrich-Amram 2d ยง 1017(b):5 (1976). See, e.g., Kline v. Johnson, 70 Pa.D. & C.2d 386, 388 (C.P. Northumberland County 1975); Casner v. Norwalk Truck Lines, Inc., 42 Pa.D. & C.2d 666, 667 (C.P. Mifflin County 1966). Appellant's failure so to do waived the procedural defect. Pa.R.Civ.P. 1032 ("[a] party waives all defenses and objections which he does not present by . . . preliminary objection"); Kline v. Johnson, supra at 389. Cf. Lang v. City of Philadelphia, 31 Pa. Commonwealth Ct. 537, 538, 377 A.2d 849, ...


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