Ro-Med Construction Co. v. Bartley

69 Pa. D. & C.2d 349, 1975 Pa. Dist. & Cnty. Dec. LEXIS 531

Opinion

HENDERSON, P. J.,

Plaintiff filed a complaint in assumpsit claiming $59,658. under a verbal contract allegedly made between plaintiff and defendant, Clyde M. Bartley. Defendant filed preliminary objections alleging that the contract set forth in the complaint was unlawful. Defendants also filed a motion for more specific complaint.

Defendant’s preliminary objections must be overruled. Under Pa. R.C.P. 1030, illegality of contract is an affirmative defense and must be pleaded in a responsive pleading under “New Matter.” The defense of illegality cannot be raised by preliminary objections: United Farmers Cooperative v. Zausner, 61 Lanc. 279 (1968); Great Lakes Cherry Producers Marketing Co-op. v. C. H. Musselman Co., 3 Adams 95 (1961).

Plaintiffs motion for more specific complaint is denied, as the information sought may properly be obtained during pretrial discovery procedures. Indeed, the record shows that defendants petitioned this court on October 12, 1973, for an order permitting them to inspect and copy plaintiffs records for the purpose of discovering the very information which they seek in their motion for more specific complaint. This court granted defendant’s petition on the same date.

Defendant’s brief also challenges this court’s jurisdiction, alleging that venue is not proper as to the corporate defendant. In support of this, defendant alleges in his brief that the corporation’s principal place of business lies in Beaver County, Pa. However, defendant did not raise the question of venue in his preliminary objections. Further, there is nothing in the record to support defendant’s assertion concerning the corporation’s principal place of business. This court has the responsibility to view only those facts which are part of the record: McCaffrey v. Pittsburgh Athletic Association 448 Pa. 151, 293 A. 2d 51 (1972). Thus, we cannot now consider defendant’s arguments concerning venue.