Scott v. Pierucci

72 Pa. D. & C. 453, 1950 Pa. Dist. & Cnty. Dec. LEXIS 210

Opinion

Bretherick, J.,

This case is before us on defendant’s preliminary objections in the nature of a demurrer to plaintiff’s complaint in assumpsit.

Defendant’s sole argument on the demurrer is based on the contention that the contract is illegal, because the consideration for his promise involves a concealing or compounding of a crime or alleged crime. See A. L. I. Restatement of the Law of Contracts, §548.

The defense of illegality cannot be raised by preliminary objections. Such defense “shall be pleaded in a responsive pleading under the heading ‘New Matter’ ”: Pa. R. C. P. 1030. “The defendant will first plead his answer to the complaint, and then, under a separate heading, will plead the affirmative defenses”: Goodrich-Amram, p. 135.

The preliminary objections, therefore, must be overruled, and defendant directed to plead over: Pa. R. C. P. 1028(d).