sufficient affidavit defense in Pennsylvania

1940As pointed out by President Judge Fronefield in his concurring opinion, the Supreme Court has ruled in the cases of Chestnut Street National Bank v. Ellis, 161 Pa. 241 , 28 A. 1082 , and Peale v. Addicks, 174 Pa. 543 , 34 A. 201 , that similar indefinite and merely suggestive allegations were not sufficient averments of fact to sustain a judgment for want of a sufficient affidavit of defense.

1940As pointed out by President Judge Fronefield in his concurring opinion, the Supreme Court has ruled in the cases of Chestnut Street National Bank v. Ellis, 161 Pa. 241 , 28 A. 1082 , and Peale v. Addicks, 174 Pa. 543 , 34 A. 201 , that similar indefinite and merely suggestive allegations were not sufficient averments of fact to sustain a judgment for want of a sufficient affidavit of defense.

1931Judgment is entered for want of a sufficient affidavit of defense only where the plaintiff’s right is clear and free from doubt: Wilson v. Bryn Mawr Trust Co., 225 Pa. 143 .

1911An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed, except where a pure question of law is raised and clear error has been committed: Wilson v. Trust Co., 225 Pa. 143 , and cases there cited.

1936This was recognized by the Supreme Court as late as 1919, after the Practice Act of 1915 made affidavits of defense pleadings, in Federal Sales Co. v. Farrell, 264 Pa. 149, 152 , 107 A. 668 , where it said, speaking through Mr. Justice Simpson: “It is true we have always implied a waiver [of the plaintiff’s right to ask for judgment for want of a sufficient affidavit of defense] from any voluntary action of plaintiff looking to putting a case at issue; but in order to have that effect the action must be voluntary.” Hence the filing of a plaintiff’s reply required by the Practice Act as amended

1936This was recognized by the Supreme Court as late as 1919, after the Practice Act of 1915 made affidavits of defense pleadings, in Federal Sales Co. v. Farrell, 264 Pa. 149, 152 , 107 A. 668 , where it said, speaking through Mr. Justice Simpson: “It is true we have always implied a waiver [of the plaintiff’s right to ask for judgment for want of a sufficient affidavit of defense] from any voluntary action of plaintiff looking to putting a case at issue; but in order to have that effect the action must be voluntary.” Hence the filing of a plaintiff’s reply required by the Practice Act as amended

1950The rule has been variously phrased that a demurrer for want of a sufficient affidavit of defense will not be entered where doubt exists as- to its propriety; that the parties should be remitted to trial to establish the facts on which -they rely: Gordon v. Continental Casualty Co., 311 Pa. 109, 111 ; that judgment will not be entered summarily on the pleadings unless the right to it is clear and free from doubt: Cain v. Crow, 114 Pa. Superior Ct. 567 ; Ottman et al. v. Nixon-Nirdlinger et al., 301 Pa. 234, 243-44 ; Smith v. Brockway Motor Truck Corporation, 302 Pa. 217, 219-20 .

1935The court below held that the case was not free from doubt and, following Gordon, Secretary of Banking, v. Continental Casualty Co., 311 Pa. 109, 111 , declined to enter the judgment.

1902We intimated in Hutton v. McLaughlin, 1 Pa. Superior Ct. 642 , that the statement and affidavit of defense in a case of this kind constituted the record. “ On an appeal from the action of a court of common pleas in granting or refusing judgment for want of a sufficient affidavit of defense nothing but the declaration and affidavit of defense can be considered by this court: Hunter v. Reilly, 36 Pa. 509 ; Allegheny City v. McCaffrey, 131 Pa. 137 ; Lane v. Penn Glass Sand Co., 172 Pa. 252 .” In Danziger v. Williams, 91 Pa. 234 , it was even held that, in an action for a quarter’s rent, the affid

1896Neither the affidavit upon which the attachment was founded, nor the finding of. the court upon the motion to dissolve,- nor the verdict in the feigned issue to determine the validity óf a judgment confessed by the defendant, and upon which an execution had issued and a levy been made on his goods prior to the service of the attachment, could be resorted to to supplement the statement of claim. “ On the hearing of a rule for judgment for want of a sufficient affidavit of defense the court may not go outside of the case as presented by the claim and affidavit to consider extraneous facts either

1953We conclude that the act relied upon has no relevancy; and further, under the circumstances of this case, that the order in question should be treated as interlocutory.” The instant appeal is, as already stated, the first taken to this court from an order refusing a defendant judgment for want of a sufficient reply to new matter since the decision in the Colonial Securities case, cit. supra. While the motion to quash the appeal in that case was refused ( 301 Pa. 229, 232 ), when the appeal came on for disposition on the merits, the order of the court below refusing the defendant’s motion for s

1953We conclude that the act relied upon has no relevancy; and further, under the circumstances of this case, that the order in question should be treated as interlocutory.” The instant appeal is, as already stated, the first taken to this court from an order refusing a defendant judgment for want of a sufficient reply to new matter since the decision in the Colonial Securities case, cit. supra. While the motion to quash the appeal in that case was refused ( 301 Pa. 229, 232 ), when the appeal came on for disposition on the merits, the order of the court below refusing the defendant’s motion for s

1945“A court should never award a summary judgment in any case unless it is free from doubt, and one in which a jury trial would be useless”: Koehring v. Ventresca, 334 Pa. 566, 567 ; Arcadia Theatre Co. v. Segall, 349 Pa. 412 . “. . . judgment for want of a sufficient affidavit of defense should not be ordered except in clear cases”: Helfenstein v. Line Mountain Coal Co., 284 Pa. 78 .

1939Coal Co., 284 Pa. 78, 81 , “judgment for want of a sufficient affidavit of defense should not be ordered except in clear cases.” 2 Judgment reversed with a venire. 1 See Lee-Strauss Co. v. Kelly, 292 Pa. 403, 406 ; Blossom Prod.

1941Painter v. Snyder, 22 Pa. Superior Ct. 603 was an appeal from an order of the court below in making absolute a rule for judgment for want of a sufficient affidavit of defense.

1933The rule applicable here is laid down in Painter v. Snyder, 22 Pa. Superior Ct. 603 , 608: “There was no error in the mere entry of judgment against the defendants for want of a sufficient affidavit of defense.

1941Furthermore, in an action of replevin, judgment for want of a sufficient affidavit of defense merely determines the right of plaintiff to possession of the goods, and plaintiff must resort to a writ of inquiry to secure assessment of damages: National Theatre Supply Co., to use, v. Mishler Theatre Co. et al., 312 Pa. 250 ; Westinghouse Air Brake Co. v. Harris, 237 Pa. 203 .

1933We said in Westinghouse Air Brake Co. v. Harris, 237 Pa. 203 , 210: “It seems perfectly clear that a rule absolute for want of a sufficient affidavit of defense under the provisions of this section [section 5 of the Act of April 19, 1901, P. L. 88] does nothing more than determine the title to the property in dispute.

1933As, however, the appeal is from a summary judgment, entered against defendant for want of a sufficient affidavit of defense, it cannot be sustained if a substantial doubt exists as to the propriety of its entry: Davis v. Investment Land Co., 296 Pa. 449 ; Chelten Ave.

1933Where a doubt exists as to whether a summary judgment should be entered, this should be resolved in favor of refusing to enter it: Davis et al. v. Investment Land Co., 296 Pa. 449 ; 146 A. 119 ; Ottman et al. v. Nixon-Nirdlinger et al., 301 Pa. 234, 244 ; 151 A. 879 , and an order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed except in such cases as are clear and free from doubt: Colonial Securities Co. v. Levy et al.

1932But, even if in fact they were not, it would make no difference, because a judgment for want of a sufficient affidavit of defence is, in effect, a judgment on demurrer, and, like all such judgments, must be self-sustaining on the face of the record.” The same principle is repeated in the case of Parry v. First National Bank of Lansford, 270 Pa. 556 , and at page 559 it is said (after repeating what was said in the case of Fritz v. Hathaway, supra) : “To entitle one to judgment for want of a sufficient affidavit of defense, his statement of claim must aver, in clear and concise terms, all facts

1921We said, in Fritz v. Hathaway, 135 Pa. 274, 280 , “a judgment for want of a sufficient affidavit of defense is, in effect, a judgment on demurrer, and, like all such judgments, must be self-sustaining on the face of the record”; this is why the statement itself is always open to attack when plaintiff asks for judgment on the pleadings.

1945Where a doubt exists as to whether or not summary judgment should be entered, this should be resolved in favor of refusing to enter it.” In the ease of City of Philadelphia v. Holmes Electric Protective Company, 347 Pa. 69 , the court said (p. 73) : “It is well settled that plaintiff shall not have judgment for want of a sufficient affidavit of defense and that a defendant shall not have judgment on a statutory demurrer unless the ease is clear: Rhodes v. Terheyden, 272 Pa. 397, 401 , 116 A. 364 .

1945Where a doubt exists as to whether or not summary judgment should be entered, this should be resolved in favor of refusing to enter it.” In the ease of City of Philadelphia v. Holmes Electric Protective Company, 347 Pa. 69 , the court said (p. 73) : “It is well settled that plaintiff shall not have judgment for want of a sufficient affidavit of defense and that a defendant shall not have judgment on a statutory demurrer unless the ease is clear: Rhodes v. Terheyden, 272 Pa. 397, 401 , 116 A. 364 .

1930Opinion by Keller, J., Under the Practice Act of 1915, P. L. 483, and its amendments, judgment may not be entered for want of a sufficient affidavit of defense in an action of trespass: Smith v. Wertheimer, 76 Pa. Superior Ct. 210 ; Stern v. Lancaster, 79 Pa. Superior Ct. 27 ; Bartoe v. Guckert, 158 Pa. 124 .

1922The plaintiff not being entitled to judgment if no affidavit of defense had been filed, it necessarily follows that the judgment for want of a sufficient affidavit of defense must be reversed: Bartoe v. Guckert et al., 158 Pa. 124 .

1925The appellate courts will not interfere, where rules for judgment for want of a sufficient affidavit of defense have been discharged in the lower courts, in doubtful and uncertain cases, but only in such as are very clear and free from doubt: Paine v. Kindred, 163 Pa. 638 .

1901An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed by the Supreme Court in doubtful and uncertain cases, but only such as are very clear and free of doubt: Ensign et al. to use of Paine v. Kindred, 163 Pa. 638 .

1910Again, in Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388 , the Supreme Court said: “An order discharging a rule for judgment for want of a sufficient affidavit of defense, will not be reversed by the Supreme Court in doubtful and uncertain cases but only such as are very clear and free from doubt.” This court has many times followed the same rule.

1909In such cases it is useless to insist on a reversal.” In Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388 , it was said, per curiam (p. 390): “An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed by the Supreme Court in doubtful and uncertain cases, but only such as are very clear and free of doubt.” In the present case we cannot say that the right of the plaintiff to recover a larger sum than that for which judgment was entered, is clear, or free from doubt.

1963Mr. Justice Cohen concurs in the result. * Italics throughout, ours. * 17 P.S. §61. ** The Act of April 18, 1874, supra, provides: “In all actions now pending, or which may hereafter be brought, wherein, by act of assembly or rule of court, the plaintiff is entitled to ask for judgment for want of a sufficient affidavit of defense, and the Court shall decide against his right to such judgment, plaintiff may except to such decision and take a writ of error to the supreme court.” The cases have interpreted and limited the Act of 1874, to appeals from an Order which dismisses a motion for judgmen

1963Mr. Justice Cohen concurs in the result. * Italics throughout, ours. * 17 P.S. §61. ** The Act of April 18, 1874, supra, provides: “In all actions now pending, or which may hereafter be brought, wherein, by act of assembly or rule of court, the plaintiff is entitled to ask for judgment for want of a sufficient affidavit of defense, and the Court shall decide against his right to such judgment, plaintiff may except to such decision and take a writ of error to the supreme court.” The cases have interpreted and limited the Act of 1874, to appeals from an Order which dismisses a motion for judgmen

1956The order of the court below is reversed and the record is remanded with direction to enter judgment for plaintiffs on the pleadings. 1 Suck refusal is appealable by adaptation of the Act of April 18, 1874, which made appealable the refusal of the analogous motion, under prior practice, for judgment for want of a sufficient affidavit of defense: Wark & Company v. Twelfth & Sansom Corporation, 378 Pa. 578, 580 , 107 A. 2d 856, 857 ; McGee v. Singley, 382 Pa. 18, 20 , 114 A. 2d 141, 142 ; Rohm & Haas Company v. Lessner, 168 Pa. Superior Ct. 242, 244 , 77 A. 2 .d 675, 677.

1955It is true that the refusal of a plaintiff’s motion for judgment on the pleadings is appealable by adaptation of the Act of April 18, 1874, P. L. 64, 12 PS §1097, which made appealable the refusal of the analogous motion, under prior practice, for judgment for want of a sufficient affidavit of defense: Wark & Company v. Twelfth & Sansom Corporation, supra, and Rohm & Haas Co. v. Lessner, 168 Pa. Superior Ct. 242, 244-245 , 77 A. 2d 675 .

1955We quashed the appeal and, in so doing, disapproved the decision in Colonial Securities Co. v. Levy (No. 1), 301 Pa. 229 , 151 A. 811 , and reinstated in full vigor the cogent statement of Mr. Justice (then Judge) Linn in O’Hara v. Parrish, 89 Pa. Superior Ct. 177, 178 , that “the refusal of judgment for want of a sufficient reply is not the refusal of judgment for want of a sufficient affidavit of defense within the meaning of the Act of April 18, 1874, P. L. 64.” See, also, Smith v. Scholl, 262 Pa. 124, 127 , 105 A. 41 .

1955We quashed the appeal and, in so doing, disapproved the decision in Colonial Securities Co. v. Levy (No. 1), 301 Pa. 229 , 151 A. 811 , and reinstated in full vigor the cogent statement of Mr. Justice (then Judge) Linn in O’Hara v. Parrish, 89 Pa. Superior Ct. 177, 178 , that “the refusal of judgment for want of a sufficient reply is not the refusal of judgment for want of a sufficient affidavit of defense within the meaning of the Act of April 18, 1874, P. L. 64.” See, also, Smith v. Scholl, 262 Pa. 124, 127 , 105 A. 41 .

1954In Russ S. F. Co. v. Victor Pastry Shoppe, 125 Pa. Superior Ct., supra, President Judge Keller said (page 463) : “. . . it has been the settled practice with reference to affidavits of defense that any voluntary action by the plaintiff looking to putting the case to trial is a waiver of his right to ask for judgment for want of a sufficient affidavit of defense: O’Neal v. Rupp, 22 Pa. 395 ; Duncan v. Bell et al., 28 Pa. 516, 519 ; Lusk v. Garrett, 6 W. & S. 89 ; Hamer v. Humphreys, 2 Miles 28 ; Johnston v. Ballentine, 1 W.N.C. 626 ; Fuoss v. Schleines, 15 W.N.C. 192 .” The case went to trial a

1937This implies a waiver of the right of plaintiff to rule for judgment for want of a sufficient affidavit of defense: 4 Standard Pennsylvania Practice, sec. 232; O’Neal v. Rupp, 22 Pa. 395 ; Erie City Iron Works v. Shuberth, 24 Dist.

1954All the essential ingredients of a complete cause of action must affirmatively appear in the statement and exhibits which are made part thereof.’ ” See to the same effect: Byrne v. Hayden, 124 Pa. 170 , 16 A. 750 ; Chestnut Street National Bank v. Ellis, 161 Pa. 241 , 28 A. 1082 ; Richey v. Gibboney, 154 Pa. Superior Ct. 1 , 34 A. 2d 913 .

1954All the essential ingredients of a complete cause of action must affirmatively appear in the statement and exhibits which are made part thereof.’ ” See to the same effect: Byrne v. Hayden, 124 Pa. 170 , 16 A. 750 ; Chestnut Street National Bank v. Ellis, 161 Pa. 241 , 28 A. 1082 ; Richey v. Gibboney, 154 Pa. Superior Ct. 1 , 34 A. 2d 913 .

1954Co. v. Reed, 181 Pa. 882 , 37 A. 552 , the Court said (page 384) : “ ‘To entitle plaintiff to judgment for want of an affidavit or a sufficient affidavit of defense, the statement of his demand . . . must be self-sustaining, that is to say, it must set forth, in clear and concise terms, a good cause of action, by which is meant, such a/oerments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim. . . .

1898If the declaration lacks the essentials of a cause of action, in matters of substance, judgment for want of an affidavit or of a sufficient affidavit of defense will be reversed : Camp v. Bank, 10 Watts, 130 ; Gould v. Gage, 118 Pa. 559 ; Acme Co. v. Reed, supra. And such defect will be fatal also in arrest of judgment or on error: Gordon v. Kennedy, supra; Clay v. Irvine, 4 W. & S. 232 ; Maher v. Ashmead, 30 Pa. 344 .

1950The rule has been variously phrased that a demurrer for want of a sufficient affidavit of defense will not be entered where doubt exists as- to its propriety; that the parties should be remitted to trial to establish the facts on which -they rely: Gordon v. Continental Casualty Co., 311 Pa. 109, 111 ; that judgment will not be entered summarily on the pleadings unless the right to it is clear and free from doubt: Cain v. Crow, 114 Pa. Superior Ct. 567 ; Ottman et al. v. Nixon-Nirdlinger et al., 301 Pa. 234, 243-44 ; Smith v. Brockway Motor Truck Corporation, 302 Pa. 217, 219-20 .

1934In passing upon the questions involved, the rule is that, “On an appeal by plaintiff from an order refusing judgment for want of a sufficient affidavit of defense, the order will not be reversed unless the action of the court below is based on plain error of law, and the right of the plaintiff is clear, assuming the facts set forth by defendant to be true”: Smith v. Brockway Motor Truck Corp., 302 Pa. 217 , 153 A. 333 .

1950The rule has been variously phrased that a demurrer for want of a sufficient affidavit of defense will not be entered where doubt exists as- to its propriety; that the parties should be remitted to trial to establish the facts on which -they rely: Gordon v. Continental Casualty Co., 311 Pa. 109, 111 ; that judgment will not be entered summarily on the pleadings unless the right to it is clear and free from doubt: Cain v. Crow, 114 Pa. Superior Ct. 567 ; Ottman et al. v. Nixon-Nirdlinger et al., 301 Pa. 234, 243-44 ; Smith v. Brockway Motor Truck Corporation, 302 Pa. 217, 219-20 .

1933Where a doubt exists as to whether a summary judgment should be entered, this should be resolved in favor of refusing to enter it: Davis et al. v. Investment Land Co., 296 Pa. 449 ; 146 A. 119 ; Ottman et al. v. Nixon-Nirdlinger et al., 301 Pa. 234, 244 ; 151 A. 879 , and an order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed except in such cases as are clear and free from doubt: Colonial Securities Co. v. Levy et al.

1950The rule has been variously phrased that a demurrer for want of a sufficient affidavit of defense will not be entered where doubt exists as- to its propriety; that the parties should be remitted to trial to establish the facts on which -they rely: Gordon v. Continental Casualty Co., 311 Pa. 109, 111 ; that judgment will not be entered summarily on the pleadings unless the right to it is clear and free from doubt: Cain v. Crow, 114 Pa. Superior Ct. 567 ; Ottman et al. v. Nixon-Nirdlinger et al., 301 Pa. 234, 243-44 ; Smith v. Brockway Motor Truck Corporation, 302 Pa. 217, 219-20 .

1937These are: (1) The court may consider only the statement of claim and affidavit of defense; (2) the statement of claim must be self-sustaining; (3) summary judgment may be entered only in clear cases, and not in cases requiring a broad inquiry into fact: See Woodward, Motions and Rules in Pennsylvania, sec. 302; Halpern v. Axelrod et al., 120 Pa. Superior Ct. 352 ; Ridley Park Borough v. American Surety Co. of N. Y., 317 Pa. 263 ; Cain v. Crow, 114 Pa. Superior Ct. 567 ; 4 Standard Pennsylvania Practice, §§224, 228, and 231.

1949Under such circumstances, we have the right to enter judgment for want of a sufficient affidavit of defense against all defendants: Deere Plow Co. v. Hershey, 287 Pa. 92, 98 ; First National Bank of South Fork, etc., v. Plummer et al., 57 D. & C. 388, 391.

1928Judgment was properly entered for want of a sufficient affidavit of defense, and, under such circumstances, plaintiff is entitled to a return of its goods (Westinghouse Co. v, Harris, 237 Pa. 203 ; Deere Plow Co. v. *407 Hersbey, 287 Pa. 92 ), as would be tbe case if a verdict bad been secured after trial.

1947It has also been held that a rule for judgment for want of a sufficient affidavit of defense may be coupled with such a reply: National Realty Appraisal Co. v. Art Club of Philadelphia, 129 Pa. Superior Ct. 99 (1937).

1947Where defendant files an affidavit of defense and avers new matter, and plaintiff deems defendant’s answer to be insufficient, the proper practice , is to file a reply raising questions of law to new matter, with a rule for judgment for want of a sufficient affidavit of defense: Bertolet v. Lanard, 135 Pa. Superior Ct. 245 ; National Realty Appraisal Co. v. Art Club of Philadelphia, 129 Pa. Superior Ct. 99 .

1946As stated by tbe Supreme Court in a per curiam opinion in Ridley Park Borough v. American Surety Co. of New York, 317 Pa. 263 , 177 A. 9 , at page 265, “If it clearly appears that there is no controlling issue of fact raised by the statement of claim and affidavit of defense, nor by the new matter and reply thereto, judgment may be entered for want of a sufficient affidavit of defense, although the rule therefor is not taken until after the reply to the new matter has been filed.

1946As stated by tbe Supreme Court in a per curiam opinion in Ridley Park Borough v. American Surety Co. of New York, 317 Pa. 263 , 177 A. 9 , at page 265, “If it clearly appears that there is no controlling issue of fact raised by the statement of claim and affidavit of defense, nor by the new matter and reply thereto, judgment may be entered for want of a sufficient affidavit of defense, although the rule therefor is not taken until after the reply to the new matter has been filed.