J-A20016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANNE C. KOWALCZYK, SUSAN C. 

STRANG, CYRUS PALMER DOLBIN, 

ELLEN MARIE DOLBIN 

Appellant

v.

EAST END GUN CLUB OF 

SCHUYLKILL HAVEN, PA

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1303 MDA 2016

Appeal from the Order Entered April 22, 2016

In the Court of Common Pleas of Schuylkill County 

Civil Division at No(s): S-2019-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JANUARY 30, 2018

Appellants, Anne C. Kowalczyk, Susan C. Strang, Cyrus Palmer Dolbin, 

and Ellen Marie Dolbin, appeal from the order entered in the Schuylkill County 

Court of Common Pleas, denying their preliminary objections.1 We affirm.

The relevant facts and procedural history of this case are as follows. 

Appellee East End Gun Club of Schuylkill Haven, PA (“East End”) filed a 

____________________________________________

1 Though an order denying preliminary objections is considered an 

interlocutory order and thus typically inappropriate for appeal, an “appellate 

court may thereupon, in its discretion, permit an appeal to be taken from such 

interlocutory order.” 42 Pa.C.S.A. § 702(b). Upon Appellants’ request, the trial 

court filed an order pursuant to § 702(b) following its denial of the preliminary 

objections. Appellants then filed a petition for permission to appeal an 

interlocutory order with this Court under Pa.R.A.P. 1311(b). And a motions 

panel later granted the petition. Accordingly, we will address the merits of this 

appeal.
J-A20016-17

- 2 -

complaint seeking to quiet title to a 150-acre tract of land in Schuylkill County. 

East End included in its exhibits a copy of a 1963 deed to the land, conveying 

the 150-acre parcel from Charles and Susan Strause to East End. Appellants 

filed preliminary objections to the complaint, asserting East End failed to state 

a cause of action. Appellants argued the 1963 deed attached to East End’s 

complaint incorporated by reference a 1930 deed that conveyed to the 

Strauses only a 100-acre parcel, “more or less.” Appellants’ Preliminary 

Objections, filed 12/7/15, at 2 (unpaginated). Appellants argued the language 

“more or less” could not include an additional 50 acres of land. And maintained 

East End’s complaint was legally insufficient to claim more than 100 acres. 

The trial court denied Appellants’ preliminary objections. Appellants’ appeal is 

now before us.

[O]ur standard of review of an order of the trial court overruling 

or granting preliminary objections is to determine whether the 

trial court committed an error of law. When considering the 

appropriateness of a ruling on preliminary objections, the 

appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal 

sufficiency of the complaint. When considering preliminary 

objections, all material facts set forth in the challenged pleadings 

are admitted as true, as well as all inferences reasonably 

deducible therefrom. Preliminary objections which seek the 

dismissal of a cause of action should be sustained only in cases in 

which it is clear and free from doubt that the pleader will be unable 

to prove facts legally sufficient to establish the right to relief. If 

any doubt exists as to whether a demurrer should be sustained, it 

should be resolved in favor of overruling the preliminary 

objections.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation 
J-A20016-17

- 3 -

omitted).

A speaking demurrer “requires the aid of a fact not appearing on the 

face of the pleading objected to, or, in other words, which alleges or assumes 

the existence of a fact not already pleaded, and which constitutes the ground 

of objection and is condemned both by the common law and the code system 

of pleading.” Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 

398 (Pa. Super. 2005) (quoting Black’s law Dictionary 299 (6th ed. 1991)). In 

sustaining a preliminary objection, the court may not consider speaking 

demurrers. See id. 

Appellants’ preliminary objections here consist of averments that East 

End failed to state a claim due to a discrepancy in acreage. However, the law 

requires that the court consider “all material facts set forth in the challenged 

pleadings are admitted as true....” Feingold, 15 A.3d at 941 (citation 

omitted). East End’s complaint set forth facts alleging it is the owner and 

possessor of 150 acres of land following the sale of the parcel from the 

Strauses to East End in 1963. East End alleged it has paid property taxes on 

the land since 1925. East End recounted the facts of an earlier action to quiet 

title, filed by James and Shana McGovern against East End, which was 

resolved in East End’s favor. East End averred that after the previous lawsuit 

was resolved in 2014, the McGoverns conveyed their alleged parcel to 

Appellants in this case. East End then requested the court enjoin Appellants 

from asserting any estate, right, title, or interest in the property, and strike 

Appellants’ deed from the county’s records. East End attached documentation 
J-A20016-17

- 4 -

to support these allegations, including a copy of the 1963 deed conveying the 

property from the Strauses to East End; the allegedly fraudulent 2014 deed 

conveying the property from the McGoverns to Appellants; court documents 

from the McGoverns’ case against East End, including the order denying the 

McGoverns’ petition to quiet title and this Court’s unpublished memorandum 

affirming that order; and a legal description of the parcel, stating it spans 

150.402 acres. See East End’s Complaint, filed 11/5/15, at Exhibits A-G. 

On the face of the complaint, East End has pled it is the owner and 

possessor of the land, in accordance with Pennsylvania Rule of Civil Procedure 

1061. East End’s complaint does not indicate any discrepancy regarding the 

size of the land; indeed, it includes both a recorded deed and a legal 

description of the parcel, stating that the land spans 150 acres. On the face 

of its complaint, East End pled facts legally sufficient to maintain its cause of 

action. 

Appellants’ contention that the 1930 deed proves the parcel is fewer 

than 150 acres is unavailing. The 1930 deed is not attached to East End’s 

complaint (or, for that matter, to Appellants’ own preliminary objections), and 

thus constitutes a speaking demurrer. The court properly declined to consider 

this averment when it denied Appellants’ preliminary objections. See, e.g., 

Regal Indus. Corp. Accordingly, we affirm the court’s order denying 

Appellants’ preliminary objections.

Order affirmed. 
J-A20016-17

- 5 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/18