just defense in Pennsylvania

1934First, that there has been no abuse of discretion in dismissing the rule; and, second, that the parol evidence was inadmissible and incompetent to vary the terms of the written lease. “......In determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which can not be subject to bias or forgetfulness, and, in the exercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or b

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1936In Warren Savings Bank & Trust Co. v. Foley, 294 Pa. 176, 184 , 144 A. 84 , the true rule is stated to be “that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the exercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered.” We will refer to the evidence with these

1936In Warren Savings Bank & Trust Co. v. Foley, 294 Pa. 176, 184 , 144 A. 84 , the true rule is stated to be “that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the exercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered.” We will refer to the evidence with these

1914The measure of the proof required to send a case to a jury cannot be defined by rule, but it may be said that while a mere conflict of evidence is not generally sufficient, the defendant should be allowed a trial when he has shown by a preponderance of evidence sufficient to sustain a verdict in his favor, that he has a just defense: Earley’s App., 90 Pa. 321 ; Jenkintown National Bank v. Fulmor, 124 Pa. 337 .

1902The measure of proof required to send a case to a jury cannot be defined by rule, but it may be said that while a mere conflict of evidence is not generally sufficient, the defendant should be allowed a trial where he has shown by a preponderance of evidence, sufficient to sustain a verdict in his favor, that he has a just defense: Earley’s Appeal, 90 Pa. 321 ; Jenkintown Nat.

1934First, that there has been no abuse of discretion in dismissing the rule; and, second, that the parol evidence was inadmissible and incompetent to vary the terms of the written lease. “......In determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which can not be subject to bias or forgetfulness, and, in the exercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or b

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1934First, that there has been no abuse of discretion in dismissing the rule; and, second, that the parol evidence was inadmissible and incompetent to vary the terms of the written lease. “......In determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which can not be subject to bias or forgetfulness, and, in the exercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or b

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1934Wright v. Linhart, 243 Pa. 221 ; Stewart v. Stewart, 246 Pa. 344 ; Johnson v. Nippert, 286 Pa. 175 ; Reidlinger v. Cameron, 287 Pa. 24 ; Hale v. Uhl, 293 Pa. 454, 457 .” Warren Sav.

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1934Wright v. Linhart, 243 Pa. 221 ; Stewart v. Stewart, 246 Pa. 344 ; Johnson v. Nippert, 286 Pa. 175 ; Reidlinger v. Cameron, 287 Pa. 24 ; Hale v. Uhl, 293 Pa. 454, 457 .” Warren Sav.

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1934Wright v. Linhart, 243 Pa. 221 ; Stewart v. Stewart, 246 Pa. 344 ; Johnson v. Nippert, 286 Pa. 175 ; Reidlinger v. Cameron, 287 Pa. 24 ; Hale v. Uhl, 293 Pa. 454, 457 .” Warren Sav.

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1934Wright v. Linhart, 243 Pa. 221 ; Stewart v. Stewart, 246 Pa. 344 ; Johnson v. Nippert, 286 Pa. 175 ; Reidlinger v. Cameron, 287 Pa. 24 ; Hale v. Uhl, 293 Pa. 454, 457 .” Warren Sav.

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1934Wright v. Linhart, 243 Pa. 221 ; Stewart v. Stewart, 246 Pa. 344 ; Johnson v. Nippert, 286 Pa. 175 ; Reidlinger v. Cameron, 287 Pa. 24 ; Hale v. Uhl, 293 Pa. 454, 457 .” Warren Sav.

1928The facts appearing in this case make clear the wisdom of the true rule, namely, that in determining whether or not a judgment should be opened, the court below is required to weigh the evidence of both parties, consider the credibility of the witnesses, give due effect to writings which cannot be subject to bias or forgetfulness, and, in the ex *185 ercise of a sound discretion, decide, as a chancellor, whether or not, in equity and good conscience, defendant has a just defense to the note or bond on which the judgment was entered; and this court, on appeal, will reverse only if an abuse of d

1916“The measure of proof required to send a case to the jury cannot be defined by rule, but it may be said that while a mere conflict of evidence is not generally sufficient,, the defendant should be allowed a trial where he has shown by a preponderance of evidence, sufficient to sustain a verdict in his favor, that he has a just defense”: Kaier v. O’Brien, 202 Pa. 153 .

1911Under such circumstances the defendants should be allowed a trial: Kaier v. O’Brien, 202 Pa. 153 ; Earley’s App., 90 Pa. 321 ; Jenkintown National Bank v. Fulmor, 124 Pa. 337 .

1974In these circumstances, they said, “[t]he more logical and certainly the more just rule is . . . that defendant should have, on timely motion, an absolute right to severance of the offenses.” Id.

1974It is the duty of the court in such case to determine whether petitioner has a just defense (Al liance Discount Corp. v. Shaw, 195 Pa. Superior Ct. 601 , 171 A. 2d 548 [1961]), and in the case of a reasonable doubt, where there has been no trial on the merits, the court’s discretion should be exercised in favor of granting the petition so as to permit the determination of the controversy upon the merits: Aluminum Builders Supply Co. v. Fravel, 5 Lyc. 245 (1956); 20 P.L.

1974It is the duty of the court in such case to determine whether petitioner has a just defense (Al liance Discount Corp. v. Shaw, 195 Pa. Superior Ct. 601 , 171 A. 2d 548 [1961]), and in the case of a reasonable doubt, where there has been no trial on the merits, the court’s discretion should be exercised in favor of granting the petition so as to permit the determination of the controversy upon the merits: Aluminum Builders Supply Co. v. Fravel, 5 Lyc. 245 (1956); 20 P.L.

1973He may will to cooperate but may not be able to because of his illness.” Although the Doctor only used the word “may” he could not discount the possibility the appellant would not cooperate. 5 The appellant was not questioned at the hearing, so there was no way the hearing judge could have made an evaluation of the appellant 6 In Commonwealth v. Ragone, 317 Pa. 313 , 176 A. 454 (1935), lire Court employed the following language in espousing the underlying theory for this principle of law: “ ‘The true reason why an insane person should not be tried, is that he is disabled by an act of God to ma

1973He may will to cooperate but may not be able to because of his illness.” Although the Doctor only used the word “may” he could not discount the possibility the appellant would not cooperate. 5 The appellant was not questioned at the hearing, so there was no way the hearing judge could have made an evaluation of the appellant 6 In Commonwealth v. Ragone, 317 Pa. 313 , 176 A. 454 (1935), lire Court employed the following language in espousing the underlying theory for this principle of law: “ ‘The true reason why an insane person should not be tried, is that he is disabled by an act of God to ma

1964The lessees, however, have not filed a petition and rule to open the judgment, for to have done so would have been tantamount to an admission on their part that the judgments were properly entered: American Heating Co. v. Persell, supra. Both a petition to strike and a petition to open could, however, have been filed simultaneously.

1964Therefore, it appears that the lessee may have a just defense to the entry of judgment, and if this is so, this defense should have been tested by a petition to open, not a petition to strike the judgment: Lebowitz v. Keystate Insurance Agency, Inc., 198 Pa. Superior Ct. 495 .

1961In Nacrelli v. Nacrelli, *383 87 Pa. Superior Ct. 162 (1926), affirmed 288 Pa. 1 (1927), although the question was not raised, the appellee luid died after judgment, pending appeal, and this Court reviewed the matter, reversing the judgment and the executors of the appellee were permitted to be substituted before the decision of the Court was made, and were the appellants on appeal to the Supreme Court.

1961In Nacrelli v. Nacrelli, *383 87 Pa. Superior Ct. 162 (1926), affirmed 288 Pa. 1 (1927), although the question was not raised, the appellee luid died after judgment, pending appeal, and this Court reviewed the matter, reversing the judgment and the executors of the appellee were permitted to be substituted before the decision of the Court was made, and were the appellants on appeal to the Supreme Court.

1959In Gardner v. Allegheny County, 382 Pa. 88 , 114 A. 2d 491 , the Court said (page 94) : “Defendants by their ‘preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders’ conclusions or averments of law’: Narehood v. Pearson, 374 Pa. 299, 302 , 96 A. 2d 895 .

1959In Gardner v. Allegheny County, 382 Pa. 88 , 114 A. 2d 491 , the Court said (page 94) : “Defendants by their ‘preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders’ conclusions or averments of law’: Narehood v. Pearson, 374 Pa. 299, 302 , 96 A. 2d 895 .

1959In Gardner v. Allegheny County, 382 Pa. 88 , 114 A. 2d 491 , the Court said (page 94) : “Defendants by their ‘preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders’ conclusions or averments of law’: Narehood v. Pearson, 374 Pa. 299, 302 , 96 A. 2d 895 .

1959In Gardner v. Allegheny County, 382 Pa. 88 , 114 A. 2d 491 , the Court said (page 94) : “Defendants by their ‘preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders’ conclusions or averments of law’: Narehood v. Pearson, 374 Pa. 299, 302 , 96 A. 2d 895 .

1952Co., 312 U. S. 630, 635 .

1944The insurance company was and is the “real defendant”, Radel v. Seib, 105 Pa. Superior Ct. 75, 81 , 159 A. 182 , the “real party in interest” (Badger v. Township of Upper Darby, 348 Pa. 551 , 36 A. 2d 507 ) and section 5(e) of the Act of 1887, P. L. 158, should not be used, in the name of a nominal defendant, to relieve the real defendant in interest of its primary liability to pay a just claim.

1944The insurance company was and is the “real defendant”, Radel v. Seib, 105 Pa. Superior Ct. 75, 81 , 159 A. 182 , the “real party in interest” (Badger v. Township of Upper Darby, 348 Pa. 551 , 36 A. 2d 507 ) and section 5(e) of the Act of 1887, P. L. 158, should not be used, in the name of a nominal defendant, to relieve the real defendant in interest of its primary liability to pay a just claim.

1944See Graham v. Hillman Coal and Coke Co., 122 Pa. Super. 579 , 186 A. 400 ; Petrulo v. O'Herron Co., 122 Pa. Super. 163 , 186 A. 397 .

1944See Graham v. Hillman Coal and Coke Co., 122 Pa. Super. 579 , 186 A. 400 ; Petrulo v. O'Herron Co., 122 Pa. Super. 163 , 186 A. 397 .

1944The insurance company was and is the “real defendant”, Radel v. Seib, 105 Pa. Superior Ct. 75, 81 , 159 A. 182 , the “real party in interest” (Badger v. Township of Upper Darby, 348 Pa. 551 , 36 A. 2d 507 ) and section 5(e) of the Act of 1887, P. L. 158, should not be used, in the name of a nominal defendant, to relieve the real defendant in interest of its primary liability to pay a just claim.

1944The insurance company was and is the “real defendant”, Radel v. Seib, 105 Pa. Superior Ct. 75, 81 , 159 A. 182 , the “real party in interest” (Badger v. Township of Upper Darby, 348 Pa. 551 , 36 A. 2d 507 ) and section 5(e) of the Act of 1887, P. L. 158, should not be used, in the name of a nominal defendant, to relieve the real defendant in interest of its primary liability to pay a just claim.

1944The court below, in the present case, apparently, was not aware of our action *Page 585 on the return of that case — 134 Pa. Super. 277 , 4 A.2d 192 — where after the board had reopened the case and heard additional testimony and found that claimant still suffered a partial disability, although he was able to do light work, we affirmed the lower court in dismissing the employer's appeal, and sharply criticized the latter's failure to supply the claimant with the light work it had represented it was willing to give him, saying inter alia, "The present appeal . . . . . . is wholly lacking in mer

1944The court below, in the present case, apparently, was not aware of our action *Page 585 on the return of that case — 134 Pa. Super. 277 , 4 A.2d 192 — where after the board had reopened the case and heard additional testimony and found that claimant still suffered a partial disability, although he was able to do light work, we affirmed the lower court in dismissing the employer's appeal, and sharply criticized the latter's failure to supply the claimant with the light work it had represented it was willing to give him, saying inter alia, "The present appeal . . . . . . is wholly lacking in mer

1940Ashton’s Appeal, 73 Pa. 153 .

1940Since the note was non-negotiable, use plaintiff, on assignment, took it subject to all equities with which it was affected in the hands of the assignor (Janes v. Benson, 155 Pa. 489 , 26 A. 752 ) and may not enforce payment against a just defense unless defendant is estopped from asserting a defense.

1940Since the note was non-negotiable, use plaintiff, on assignment, took it subject to all equities with which it was affected in the hands of the assignor (Janes v. Benson, 155 Pa. 489 , 26 A. 752 ) and may not enforce payment against a just defense unless defendant is estopped from asserting a defense.

1937For the federal statute, see 40 USCA section 2Y0. 2 Philadelphia v. Stonge et al., 306 Pa. 178 , 159 A. 7 ; Philadelphia v. Jackson & Co., 280 Pa. 319 , 124 A. 446 . 3 The bond contained the following: “and shall pay all lawful claims of subcontractors, materialmen and laborers for labor performed and materials furnished in the carrying forward, performing or completing of said contract, we agreeing and assenting that this undertaking shall be for the benefit of any materialman or laborer having a just claim, as well as for the obligee herein.” 4 The bond provided that the contractor “shall pa

1937For the federal statute, see 40 USCA section 2Y0. 2 Philadelphia v. Stonge et al., 306 Pa. 178 , 159 A. 7 ; Philadelphia v. Jackson & Co., 280 Pa. 319 , 124 A. 446 . 3 The bond contained the following: “and shall pay all lawful claims of subcontractors, materialmen and laborers for labor performed and materials furnished in the carrying forward, performing or completing of said contract, we agreeing and assenting that this undertaking shall be for the benefit of any materialman or laborer having a just claim, as well as for the obligee herein.” 4 The bond provided that the contractor “shall pa