Smith v. Wernett

56 Pa. D. & C.2d 177, 1972 Pa. Dist. & Cnty. Dec. LEXIS 367

• Court: Pennsylvania Court of Common Pleas, Carbon County
• Decided: May 23, 1972
• Docket: no. 111
• Status: Published

Opinion

HEIMBACH, P. J.,

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We have for disposition defendants’ preliminary objections to plaintiff’s complaint. Their reasons are these:

1. The complaint does not identify the lands in controversy, contrary to Pennsylvania Rule of Civil Procedure 1054(a), which provides “(a) The plaintiff shall describe the land in his complaint.”

2. The complaint fails to state when defendants entered upon the lands of plaintiff and the length of time of said occupation of the lands, contrary to Pa. R. C. P. 1019(f), which provides “(f) Averments of time, place and items of special damage shall be specifically stated.”

Both of these objections are without merit. Plaintiff has fully described six tracts of land by metes and bounds, excepting thereout by proper reference lands no longer owned by him. In paragraph 3 he avers all the land owned by him, as described in paragraph 1, excluding the exceptions and reservations, are in possession of defendants. This is a precise identification of the land in controversy. There should be no problem on defendants’ part to answer this allegation.

Objection no. 2 is without merit, assumpsit rule 1019(f) not being applicable in these proceedings. When defendants came on the premises is not material insofar as plaintiff is concerned and need not be alleged.

Wherefore, we enter the following

ORDER

Now, to wit, this May 23, 1972, defendants’ preliminary objections are dismissed. Defendants shall file an answer within 20 days from the date hereof, on penalty of a default judgment on praecipe being entered.