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MICHAEL F. CHORBA v. DAVLISA ENTERPRISES (08/27/82)

filed: August 27, 1982.

MICHAEL F. CHORBA, JOHN STAHL, KAY CADDEN AND CARMEN STAMBONE, JR., ADMINISTRATORS OF THE ESTATE OF CARMEN STAMBONE, DECEASED, APPELLANTS,
v.
DAVLISA ENTERPRISES, INC.



No. 3198 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Lackawanna County, No. 80 Equity 56.

COUNSEL

John J. Brazil, Scranton, for appellants.

Richard S. Bishop, Scranton, for appellee.

Wieand, Beck and Hoffman, JJ. Beck, J., concurs in the result.

Author: Wieand

[ 303 Pa. Super. Page 499]

In this equity action the administrators of the Estate of Carmen Stambone, deceased, requested a decree compelling Davlisa Enterprises, Inc. (hereinafter sometimes "Davlisa") to convey lands which were the subject of an alleged agreement of sale between Davlisa's grantor, Pennsylvania Coal Co., and Carmen Stambone. The trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. We reverse.

[ 303 Pa. Super. Page 500]

A demurrer admits all relevant facts pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law. Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 139, 320 A.2d 117, 120 (1974); Borden v. Baldwin, 444 Pa. 577, 582, 281 A.2d 892, 895 (1971); Tanenbaum v. Sears, Roebuck and Co., 265 Pa. Super. 78, 81, 401 A.2d 809, 810 (1979). A demurrer may not be sustained unless the complaint evidences on its face that the claim cannot be sustained because the law will not permit recovery. Gekas v. Shapp, supra 469 Pa. at 5, 364 A.2d at 693; Allstate Insurance Co. v. Fiorvanti, 451 Pa. 108, 111, 299 A.2d 585, 587 (1973); Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503-504, 267 A.2d 867, 868 (1970); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 291, 259 A.2d 443, 449 (1969); Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 133-134, 396 A.2d 677, 681 (1978). In ruling on a demurrer, a court may not consider factual matters not disclosed in the record. International Union of Operating Engineers v. Linesville Construction Co., 457 Pa. 220, 223, 322 A.2d 353, 356 (1974); Muia v. Fazzini, 416 Pa. 377, 205 A.2d 856 (1965). The court, moreover, may not take judicial notice of the record of another case, if not pleaded. See: Goodrich-Amram 2d § 1017(b):11. See also: Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 309, 243 A.2d 385, 386 (1968); Naffah v. City Deposit Bank, 339 Pa. 157, 160, 13 A.2d 63, 64-65 (1940); Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commw. 313, 316 n. 4, 379 A.2d 330, 332 n. 4 (1977). If there is any doubt, the doubt should be resolved in favor of overruling the demurrer; summary judgment should be entered only in cases which are clear and free from doubt. Gekas v. Shapp, supra 469 Pa. at 5, 364 A.2d at 693; Clevenstein v. Rizzuto, 439 Pa. 397, 401, 266 A.2d 623, 625 (1970); Adams v. Speckman, 385 Pa. 308, 309, 122 A.2d 685, 686 (1956); Todd v. Skelly, 384 Pa. 423, 428, 120 A.2d 906, 909 (1956). Judgment should not be entered against a plaintiff if the pleadings indicate that he could state a better case by amendment. Tide Water Associated Oil Co. v. Kay,

[ 303 Pa. Super. Page 501168]

Pa. Super. 263, 77 A.2d 754 (1951); Goodrich-Amram 2d § 1017(b):11.

The complaint alleges that on or about October 25, 1974, Carmen Stambone paid $3,500 to Pennsylvania Coal Co. as a deposit toward the purchase of a tract of land containing 67.23 acres in the Borough of Olyphant, Lackawanna County. Pennsylvania Coal Co. acknowledged receipt of the deposit by letter signed by its president on the same day. The letter contained a description of the tract and the following paragraph:

This offer is subject to the approval of the Board of Directors of Pennsylvania Coal Company. If your offer is not approved the deposit will be returned to you. If your offer is approved by the Board of Directors it will be subject to the conditions that you close the transaction within thirty (30) days after you receive notice . . . that the deed for the parcels is ready for delivery to you. If you fail to close within said ...


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