OPINION BY MR. JUSTICE JONES, October 12, 1971:
This is an appeal from the decree of the Indiana County Court of Common Pleas sustaining appellee's
Appellant's complaint sought specific performance of a contract to convey coal and mining rights, the reformation of a coal lease agreement and an accounting for royalties on coal mined. After various preliminary objections, an amended complaint was filed to which further preliminary objections were filed consisting, inter alia, of a demurrer because (1) the action involved a contract for the sale of land without a sufficient written memorandum under the statute of frauds, Act of March 21, 1772, 1 Sm. L. 389, § 1, 33 P.S. § 1; and (2) the action is barred by the statute of limitations, Act of April 22, 1856, P.L. 532, § 6, 12 P.S. § 83. In sustaining the preliminary objections, it was the opinion of the court below that, "the pleadings indicate that there is a violation of the Statute of Frauds insofar as any agreement is concerned in this case and also that there is a violation of the Statute of Limitations." Because of procedural irregularities, it is necessary to reverse that judgment.
By our past decisions we have clearly held that the statute of frauds provision relating to sales of interests in real estate is a waivable defense which must be raised under Pa. R.C.P. 1030 (new matter) and not under Pa. R.C.P. 1017(b) (preliminary objections). Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968); Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444 (1968); Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965). Likewise, an affirmative defense of the statute of limitations must be pleaded as new matter pursuant to Rule 1030. Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969); Mangino v. Steel Contracting Co., 427 Pa. 533, 235 A.2d 151 (1967). Accordingly, the appellee erred in raising these defenses by preliminary objections.
However, appellee strenuously urges us to ignore this procedural error and dispose of this appeal on the
Indeed, in Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969), we reversed the judgment and explicitly dismissed a position identical to appellee's contention which the Superior Court had erroneously adopted even though that plaintiff had not objected to the defendant's preliminary objections. Ziemba v. Hagerty, 214 Pa.Super. 381, 261 A.2d 342 (1969). "Rule 1030 of the Pennsylvania Rules of Civil Procedure requires affirmative defenses such as the statute of limitations to be raised as new matter in a responsive pleading. Various prior decisions of this Court have undoubtedly created some confusion in the applicability of that provision of Rule 1030. [Citations omitted.] The amendment to Rule 1017(b), Pennsylvania Rules of Civil Procedure promulgated by this Court to take effect on September 1, 1969, has resolved this apparent conflict in favor of the view expressed in Brown v. Hahn, supra. That Rule permits the raising of the defense of the statute of limitations by preliminary objections only where the statute of limitations is not waivable. Such is not the case here, and the defense must
The decree of the Court of Common Pleas is reversed and the record is remanded for further proceedings consistent herewith. Costs on appellee.
Mr. Justice ROBERTS took no part in the consideration or decision of this case.