Opinion
January 3, 1934.
January 30, 1934.
Practice — Judgment for want of sufficient affidavit of defense — Facts indicating defence — Summary judgment.
Summary judgment for plaintiff is properly refused where defendant in its affidavit of defense and new matter clearly sets forth facts indicating a prima facie legal defense to the whole of plaintiff's claim.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 141, Jan. T., 1934, by plaintiff, from order of C. P. No. 1, Philadelphia Co., June T., 1933, No. 9044, in case of John Tanner, etc., to use of Tanner Textile Company v. Van Gelder Yarn Co., Inc. Order affirmed.
Assumpsit for breach of contract. Before McDEVITT, P. J.
The opinion of the Supreme Court states the facts.
Rule for judgment for amount admitted to be due by affidavit of defense discharged. Plaintiff appealed.
Error assigned was discharge of rule, quoting record.
Ralph B. Umsted, with him Howard M. Kuehner, for appellant.
Lester Lichtenstein, for appellee.
Argued January 3, 1934.
In this action of assumpsit for breach of contract, plaintiff appeals from the discharge of his rule for judgment, on part of his claim, for want of a sufficient affidavit of defense. The questions involved were purely questions of fact, as to which the opinion of the learned court below states: "The defendant has clearly and concisely set forth in its affidavit of defense and new matter facts indicating a prima facie legal defense to the whole of the plaintiff's claim." (Italics ours.) Under such circumstances, summary judgment was properly refused: Brannen v. Granite-Silberstein B. L. Assn., 310 Pa. 278; Coral Gables, Inc. v. MacBroom, 311 Pa. 183.
The order of the court below is affirmed.