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THOMAS ELLING v. EMANUEL CALLAS (10/05/84)

filed: October 5, 1984.

THOMAS ELLING, APPELLANT,
v.
EMANUEL CALLAS, DEANNA CALLAS



No. 3 Pittsburgh, 1983, Appeal from the Order of December 23, 1982, Court of Common Pleas, Allegheny County, Civil Division at No. GD82-1977.

COUNSEL

Ralph J. Ruggiero, Pittsburgh, for appellant.

Leo Kostman, Pittsburgh, for appellees.

Tamilia, Johnson and Montgomery, JJ.

Author: Johnson

[ 334 Pa. Super. Page 33]

OPINION

Plaintiff-appellant, Thomas Elling, takes this appeal from the order of the trial court sustaining defendant-appellees' demurrer to appellant's complaint in equity and dismissing the complaint. Appellant now argues that the trial court erred in denying appellant's motion to strike appellees' preliminary objections as an improper "speaking demurrer." We find appellant's argument to have merit and we reverse the order of the trial court and remand for further proceedings.

The herewithin action was initiated by appellant in equity by Complaint to Set Aside Fraudulent Conveyances, an action based on the Uniform Fraudulent Conveyance Act, the Act of May 21, 1921, P.L. 1045, No. 379, 39 P.S. ยงยง 351 et seq. (1954). In his complaint, appellant alleged that on September 27, 1976, appellee Emanuel Callas struck appellant twice in the mouth, severely lacerating appellant's left cheek. Thereafter, appellant initiated a trespass action against Mr. Callas, which ultimately resulted in a jury verdict on April 30, 1980, in favor of appellant for $12,000.00. A few months later, on October 29, 1980, Mr. Callas filed a voluntary petition in bankruptcy. Appellant, however, filed an adversary action in which he asked the bankruptcy court to specially except the judgment held by appellant. The court accepted appellant's arguments, and the court ruled that the judgment held by appellant against

[ 334 Pa. Super. Page 34]

    appellee Emanuel Callas would not be discharged because it arose from a malicious injury.

Appellant then filed the herewithin complaint in equity, alleging, in relevant part:

9. Emanuel Callas and Deanna Callas are husband and wife and own a house at 509 Ridge Avenue, East Pittsburgh, PA, as tenants by the entireties.

10. Defendant Emanuel Callas has conveyed, applied, and paid in his earnings towards the purchase and/or satisfaction of a mortgage ...


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