Philadelphia ex rel. DePaul & Son v. Magnolia Cemetery Co. , 220 Pa. Super. 424 ( 1972 )

Opinion by

Jacobs, J.,

The appellant in this case is a contractor who paved the cartway and installed curbing along a footway adjoining the real estate of appellee. Appellant filed a municipal claim in the name of the City of Philadelphia to his use by virtue of the provisions of the Act of May 16, 1923, P. L. 207, as amended, 53 P.S. §7101 et seq. On November 10, 1970, appellant caused a scire facias sur municipal claim to issue. Appellee, a cemetery company, filed a paper it called a demurrer to plaintiff’s claim on July 2, 1971. On August 6, 1971, the lower court sustained the demurrer and dismissed tie claim. Tie City of Piiladelpiia ias intervened as an appellant.

Tie demurrer avers tiat appellee is a nonprofit cemetery corporation and exempt from municipal claims; tiat it at one time waived damages for tie taking of a street in tie belief it would be exempted; and tiat tie description of tie real estate in tie claim was defective. Witiout any reply iaving been filed by appellant and witiout any tearing, tie lower court found tiat tie appellee was exempt from liability for municipal claims and tiat tie description of tie real estate in tie claim was defective. Tiis was error and must be reversed.

A demurrer is tie proper way to siow any deficiency as to tie form of tie lien or tie insufficiency of tie averments contained tierein. City of York v. Miller, 254 Pa. 436, 98 A. 1049 (1916). However, a demurrer cannot inject facts not appearing in tie pleading to wiici it is filed. Borough of Newtown v. Murfit, 79 Pa. D. & C. 135 (1951). A demurrer cannot supply facts missing in a complaint and in passing on tie demurrer tie court may consider only suci matters as arise out of tie complaint itself. Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A. 2d 451 (1964). Tierefore, tie allegations of tie demurrer relative to appellee’s exempt status were improperly considered by tie court below.

In passing on demurrers to pleadings every material and relevant fact well pleaded and every inference fairly deducible tierefrom are to be taken as true. Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A. 2d 714 (1958). Tie municipal claim names Tie Magnolia Cemetery Company of Piiladelpiia as owner. Tiis must be accepted as correct. Suci designation of ownersiip, iowever, does not imply an exempt status permitting the court to consider it in ruling on the demurrer.

The only objection made by appellee which is cog-nisable on demurrer is the claim that the description is defective and should be stricken off. An examination of the description indicates that the same nine-acre tract was described twice. Admittedly, the description was carelessly prepared, but it is sufficient to identify the tract and that is all that is required. “The object of the description in a municipal claim is to ascertain the locality of the property charged and municipal claims do not require as strictly accurate descriptions as those of mechanics for work done on a particular property.” Latrobe Borough v. Austraw, 157 Pa. Superior Ct. 643, 645-46, 43 A. 2d 612, 613 (1945). It cannot be said that the description is defective as a matter of law.

The action of this Court is not intended to prevent the appellee from raising the defenses it has alleged in its demurrer. Such defenses, however, must be raised in an affidavit of defense on the merits.

The order of the lower court dismissing the municipal claim is reversed and it is directed that appellee be given twenty (20) days from notification of this order within which to file its affidavit of defense.