Shea v. Cummings

Action to quiet title to determine plaintiff’s title to the land and to compel defendants to admit the validity of plaintiff’s documents of title. Service of the complaint by publication against deceased defendants and unknown parties in interest was authorized. Personal service seems to have been had upon all of the named defendants other than Joseph Shea.

Three of the named defendants filed preliminary objections, which challenge the validity of a county treasurer’s sale and a subsequent sale to plaintiff by the county commissioners, because of fact situations not of record in this action and for failure to join as defendants certain unnamed purported heirs of Mary Cummings, deceased. Plaintiff filed a responsive answer traversing the pertinent allegations of fact as contained in the preliminary objections. (Pa. R. C. P. 1028(c).)

The questions of fact so raised are of substance and not merely procedural. They would require the taking of evidence to substantiate or disprove. Since some of them go directly to the validity of plaintiff’s title, it is apparent that they should be raised by way of defense in an answer to the complaint. The only point which may be considered procedural raised in the objections is an allegation of nonjoinder of certain parties. The answer to the preliminary complaint avers that the reason for nonjoinder is because all parties in interest other than those named have joined in a quitclaim deed to plaintiff and thus it is unnecessary to name them. This point is minor and may be considered if necessary when evidence is taken after the case is at issue. Since the Rules of Civil Procedure are designed to facilitate rather than delay the setting up of proper *558issues, it would seem rather foolish to take testimony on the nonjoinder point alone, thus delaying the decision on the substantive question involved.

Now, December 12,1951, the preliminary objections to the complaint entered by Catherine Gallagher, Mary Toye and Francis Shea are dismissed, defendants to plead over in 20 days.