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MYLES S. BARBET AND SIDNEY J. BARBET v. FRED EDELSTEIN (11/01/85)

filed: November 1, 1985.

MYLES S. BARBET AND SIDNEY J. BARBET, APPELLANTS,
v.
FRED EDELSTEIN



Appeal from the Order of the Court of Common Pleas, Civil, of Montgomery County, at No. 84-10101

COUNSEL

Kevin A. Palmer, King of Prussia, for appellants.

Montemuro, Popovich and Watkins, JJ. Popovich, J., concurs in the result.

Author: Montemuro

[ 346 Pa. Super. Page 489]

Myles and Sidney Barbet filed a complaint against Fred Edelstein for breach of contract and fraud. The transaction which brought about this litigation involved an agreement between the parties to purchase and then resell tickets to the 1984 National Football League's "Super Bowl." According to the parties' understanding, the Barbets would "invest" fifteen hundred dollars ($1,500.00), which Edelstein would use to purchase the tickets; the tickets would then

[ 346 Pa. Super. Page 490]

    be resold at a profit. Apparently Edelstein carried out this "investment venture," and sent the Barbets their return on the investment in the form of a check for three thousand, three hundred sixty dollars ($3,360.00).*fn1 The check was returned by the Barbets' bank due to insufficient funds, and this litigation followed.

In response to the Barbets' complaint, Edelstein filed a preliminary objection in the nature of a demurrer stating that the contract and "venture" was nothing more than common ticket "scalping" and, as such, the agreement was illegal and unenforceable. The court below granted Edelstein's demurrer and dismissed the complaint. This appeal followed.

"Upon demurrer, a reviewing court must regard as true all well-pleaded facts and reasonable inferences deducible therefrom." Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984). While a demurrer admits all well-pleaded facts set forth in the complaint, it does not admit conclusions of law. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976). In ruling on a demurrer, a court may look only to matters arising out of the complaint itself and may not consider matters not disclosed in the record. Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super. 497, 450 A.2d 36 (1982); DeSantis v. Swigart, 296 Pa. Super. 283, 442 A.2d 770 (1982). Although there is no "'magic formula' to determine the sufficiency of a plaintiff's complaint . . . the law is clear that a demurrer can only be sustained in a case free from doubt." Bartanus v. Lis, supra, 332 Pa. Super. at 53, 480 A.2d at 1181 (original emphasis). Any doubt which does exist should be resolved in favor of overruling the demurrer. Chorba v. Davlisa Enterprises, Inc., supra.

[ 346 Pa. Super. Page 491]

The Barbets advance numerous assignments of error*fn2 on the part of the court below, and request that we reverse the order of the court below and remand the case in order to allow them to amend their complaint. However, due to Edelstein's procedural error below, and our limited scope of review as set forth above, we do not reach these contentions.

As we stated earlier, Edelstein filed preliminary objections in the nature of a demurrer, which argued the illegality of the contract or "venture" undertaken by the parties. However, the Pennsylvania Rules of Civil Procedure clearly prohibit such a response to the Barbets' complaint as "illegality of a contract . . . is an affirmative defense which shall be pleaded by way of New Matter . . . and cannot be raised by way of Preliminary Objections." DeAngelis v. Laughlin, 436 Pa. 75, 77, 258 A.2d 615, 615 (1969);*fn3 National Recovery Systems v. Frebraro, 287 Pa. Super. 442, 430 A.2d 686 (1981); Pa.R.C.P. 1017(b), 1030; 2 Goodrich-Amram § 1017(b):11; 5 Standard Pennsylvania Practice 2d § 25:65. The Barbets have never objected, either in the proceedings below or now on appeal to this procedural impropriety. As such, the court below properly entertained the preliminary objection despite the procedural defect. National Recovery Systems v. Frebraro, supra.

The court below stated, in its opinion written pursuant to Pa.R.A.P. 1925, that the complaint must be dismissed because "[t]he subject ...


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