Appeals — Order overruling defendant's preliminary objections — Failure of plaintiff to join indispensable parties — Complaint allegedly not stating cause of action — Judicial question — Act of March 5, 1925, P. L. 23.
1. An order overruling a defendant's preliminary objection alleging plaintiff's failure to join indispensable parties is an interlocutory order and not appealable. [77]
2. A preliminary objection that plaintiff does not state a cause of action does not raise a jurisdictional question, and, therefore, the Act of March 5, 1925, P. L. 23, is not applicable. [77] Practice — Pleadings — Illegality of contract — Affirmative defense — New matter — Preliminary objections.
3. Illegality of a contract is an affirmative defense which must be pleaded by way of New Matter, and cannot be raised by way of preliminary objections. [77]
Practice — Preliminary objections — Exhibit to complaint disclosing problems of capacity to sue and nonjoinder of necessary parties — Copy of exhibit belatedly received — Opportunity to file preliminary objections again.
4. Where it appeared that defendant did not receive a copy of an exhibit attached to the complaint until seven months after the filing of the complaint; that only two days passed before the lower court overruled defendant's preliminary objections, alleging, inter alia, plaintiff's failure to join indispensable parties; and that problems as to the capacity to sue and nonjoinder of necessary parties were first disclosed by the exhibit; it was Held that the exhibit should be treated as the filing of an amended complaint, and that defendant should again have an opportunity to file her preliminary objections.
Mr. Justice ROBERTS and Mr. Justice POMEROY concurred in the result.
Mr. Justice JONES took no part in the consideration or decision of this case.
OPINION PER CURIAM, November 11, 1969:
This appeal is quashed because: (1) illegality of a contract (though a difficult issue here) is an affirmative defense which shall be pleaded by way of New Matter, 12 P.S. App., R.C.P. 1030 (1967), and cannot be raised by way of preliminary objections, Goodrich-Amram, Standard Pennsylvania Practice, § 1017(b)-2 at 69, and § 1030-1.2 at 193, and (2) because an order overruling appellant's preliminary objections is interlocutory and not appealable, Grosso v. Englert, 381 Pa. 351, 113 A.2d 250 (1955). The Act of March 5, 1925, P. L. 23, 12 Pa.C.S.A. § 672, does not confer jurisdiction here because the allegation that appellee did not state a cause of action does not raise a jurisdictional question. Guzek v. Empire Wholesale Co., 396 Pa. 78, 151. A.2d 470 (1959).
Appellant did not receive a copy of the letter, Exhibit A, until July 14, 1969 (the complaint was filed December 4, 1968); thus only two days passed before the lower court overruled her preliminary objections. Because of the seven month delay between the filing of the complaint and receipt of Exhibit A, the exhibit should be treated as the filing of an amended complaint, and appellant should again have an opportunity to file her preliminary objections. This is especially important in light of the capacity to sue and nonjoinder of necessary parties — problems first disclosed by the exhibit. 13 Standard Pennsylvania Practice, Ch. 59, § 3, 12 P.S. App., R.C.P. 1017(b)(5).
Appeal quashed.
Mr. Justice ROBERTS and Mr. Justice POMEROY concur in the result on the ground that the overruling of a defendant's preliminary objection, alleging plaintiff's failure to join indispensable parties, is an interlocutory order, since it does not raise a "question of jurisdiction over the defendant" within the meaning of the Act of March 5, 1925, P. L. 23, § 1, 12 Pa.C.S.A. § 672.
Mr. Justice JONES took no part in the consideration or decision of this case.