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FRANK G. BINSWANGER v. ROBERT P. LEVY AND DAVID RICHARD LEVY (02/18/83)

filed: February 18, 1983.

FRANK G. BINSWANGER, JR., JOHN K. BINSWANGER, ANTHONY J. WALTON, JR., AND ROBERT M. BRASLER, INDIVIDUALLY AND T/A THE BINSWANGER/HERMAN COMPANY, APPELLANTS,
v.
ROBERT P. LEVY AND DAVID RICHARD LEVY, AND BURTON K. STEIN, ESQUIRE AND BARCLAY HOTEL ASSOCIATES



No. 2930 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 231 May Term, 1980.

COUNSEL

Jean C. Hemphill, Philadelphia, for appellants.

Sidney Ginsberg, Philadelphia, for appellees.

Rowley, Cirillo and Montemuro, JJ.

Author: Rowley

[ 311 Pa. Super. Page 43]

This is an appeal from an order of the trial court sustaining appellees' preliminary objections in the nature of a demurrer and dismissing appellants' complaint in assumpsit.

Initially we note the applicable standard of review is expressed in Donnelly v. DeBourke, 280 Pa. Super.Ct. 486, 489-90, 421 A.2d 826, 828 (1980) (citations omitted):

[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom . . . [P]reliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty, that, upon the facts averred, the law will not permit recovery by the plaintiff.

See also Bickell v. Stein, 291 Pa. Super.Ct. 145, 149, 435 A.2d 610, 612 (1981).

A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Del Boring Tire Service, Inc. v. Barr Mach., Inc., 285 Pa. Super.Ct. 66, 426 A.2d 1143 (1981). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. Barto v. Felix, 250 Pa. Super.Ct. 262, 378 A.2d 927 (1977). In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint. Linda Coal and Supply Co. v. Tasa Coal Company, 416 Pa. 97,

[ 311 Pa. Super. Page 44204]

A.2d 451 (1964). Any doubt as to whether a demurrer should be sustained should be resolved against the moving party. Commonwealth, Dept. of Environmental Resources v. Peggs Run Coal ...


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