Opinion
April 12, 1933.
May 1, 1933.
Practice — Statement of claim — Sufficiency — Affidavit of defense raising questions of law — Motion to strike off — Rule for more specific statement — Non process — Amendment — Act of May 14, 1915, P. L. 483.
1. Where the averments of the statement of claim do not conform to the provisions of the Practice Act of May 14, 1915, P. L. 483, defendant should move to strike it off, as provided by section 21. [536]
2. If the averments in the statement of claim conform to the provisions of the act, but are not sufficiently specific, defendant should take a rule for a more specific statement, and follow this with a motion for a non pros. if the court makes his rule absolute and its order is not complied with. [536]
3. Such practice still obtains, notwithstanding section 21 of the Act of 1915, which is not intended to provide a new or exclusive remedy, applicable to defective pleadings, but is simply a generally enabling provision to be read in connection with the rest of the act. [536]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, DREW and LINN, JJ.
Appeal, No. 43, Jan. T., 1933, by plaintiffs, from judgment of C. P. Lackawanna Co., March T., 1931, No. 351, sustaining affidavit of defense raising questions of law, in case of Harry Rice et ux. v. Scranton. Reversed with procedendo and leave granted plaintiffs to amend their statement and defendant to reply thereto.
Trespass for personal injuries. Before LEACH, J.
The opinion of the Supreme Court states the facts.
Affidavit of defense raising questions of law sustained and judgment entered for defendant. Plaintiffs appealed.
Error assigned, inter alia, was entry of judgment, quoting record.
Clarence Balentine, of Kelly, Balentine, Fitzgerald Kelly, for appellant.
A. A. Vosburg, City Solicitor, with him Albert S. Rosenberg, Assistant City Solicitor, for appellee.
Argued April 12, 1933.
On April 4, 1929, about 4: 30 p.m., Mrs. Rice, on leaving a grocery store on Main Street in defendant city, stepped into a hole in the sidewalk in front of the store, causing her to fall and receive the injuries here complained of. An affidavit of defense was filed "raising questions of law" and averring the statement of claim is vague and indefinite and shows on its face that plaintiff was guilty of contributory negligence. The court below sustained this contention and entered judgment for defendant. In so doing we are of opinion error was committed. This case comes clearly within the rule stated in Rhodes v. Terheyden, 272 Pa. 397. In holding that summary judgment should be entered only in clear cases, we there (page 401) said: "If appellee was of opinion the averment of the statement did not 'conform to the provisions' of the Practice Act of May 14, 1915, P. L. 483, he should have moved to strike it off, as provided by section 21. If he believed it did 'conform to the provisions' of the act, but was not sufficiently specific, he should have taken a rule for a more specific statement, and followed this with a motion for a non pros., if the court made his rule absolute and its order was not complied with (King v. Brillhart, 271 Pa. 301, 305); this practice still obtains, notwithstanding section 21 of the act, which 'is not intended to provide a new or exclusive remedy, applicable to defective pleadings; it is simply a general enabling provision to be read in connection with the rest of the act': Parry v. First Nat. Bank of Lansford, 270 Pa. 556, 560."
The judgment of the court below is reversed with a procedendo, and leave granted plaintiffs to amend their statement and defendant to reply thereto.