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C. P. of

averment

York Co. * January 24, 1923; defendant's counsel Hershey v. York Water Co., No. 2 :led and served on counsel for plaintiff

requests for a more specific statement,

and a rule was granted on defendant to Pleuding and practice -Rule for more answer. specific averments of facts-Judgment

March 3, 1923, plaintiff filed his anof non pros for failure to file a more spe- swer in the nature of the information cific plaintiff's statement.

requested. Where, after a motion to strike off a plain- Tugust 6, 1923, the defendant filed the tifl's statement, the court held the statement sufficient, and indicated that if the defendant following motion for judgment of non should deem the statement not sufficiently explicit, application may be made for more pros: “And now, to wit, August 6, 1923, specific

of facts, and defendant the defendant having on August 28, made such application, and the plaintiff in answer to a rule granted on the defendant's 14:22, filed a motion to strike off the application gave the information requested, the defendant is not entitled to judgment of plaintiff's statement of claim, and the non pros on the ground that the plaintiff court on January 15, 1923, filed an opinfailed to tile a more specific statement in accordance with the rule granted.

101 inter alia, as follows: “ 'It is our Motion by defendant for judgment of opinion that the motion to strike off 1! on pros for failure to file a more spe- plaintiff's statement should be refused. cific plaintiff's statement in Samuel 11.

“ 'If defendant is of the opinion that Ilershey v. York Water Co., No. 220), facts are not so clearly stated as will enAugust Term. 1922. in the Court of

alle it to prepare evidence of refutation, Common Pleas of York Co., Pa. Re

it will be allowed ten days from this date fused.

to tile its demand for a more specific For opinion on motion to strike off averment of facts. plaintiff's statement, see Hershey v. York

“And now, January 15th, 1923, the Water Co., 36 Y. I. R. 101.

ciefendant's motion to strike off the Cochran, Iloi!!iams & Kain, for mo- plaintiff's statement is refused;' and the tion.

defendant, in pursuance of the permis

sion so given, having on the 24th day of 1. I. Hershey, contra.

january, 1923, taken a rule for a more

Specific statement, in pursuance of which Ross, J., August 8, 1924. The above rule the plaintiff failed to file a more named action of tre pass was begun by specific statement, but on the 3rd day of the issuance of a summons, and the filing March, 1923, filed an answer to said rule. ar service of a statement of claim, on

" \nd the matter having come on for the 17th day of August, 1922.

argument by

agreement counsel, The defendant moved to strike off the whereupon the court declined to hear ar statement, and in an opinion filed by this arguable question before it on the then

guiment on the ground that there was no court, January 15, 1923, the motion was state of the record, the said defendant, refused. (Hershey v. York Water Co., on motion of Cochran, Williams & Kain, 30 Y. I. R. 1611.

its attorneys, respectfully moves the

court to enter judgment of non pros in On January 17, 1023, Cochran, 11'11-' the above entitled action against the liams & Kain, counsel for defendant,

above named Samuel W. Hershey, plain

tiff, for failure to file a more specific fied exceptions to the order of the statement in accordance with the rule so court filed January 15, 1923.

taken."

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The motion for entry of judgment of section 20 of the act, which provides non pros is refused, for the reason that only a substitute'

for the we think the plaintiff has stated a case common law demurrer,

is not in trespass which entitles him to a trial whether the statement is so clear, in both by jury, and refer to our opinion filed form and specification, as to entitle January 15, 1923. (36 Y. L. R. 161]. plaintiff, without amendment, to proceed

to trial, but whether, upon the facts It is true the appellate courts have said averred, it shows, as a question of law, that "a defendant may move to strike off that plaintiff is not entitled to recover. an indefinite statement, or, if it is too in- At times it may not be easy to determine definite, may obtain a rule for one more under which of the foregoing heads an specific”: King v. Brillhart, 271 Pa. 301, objection to a particular statement falls, 305; Rhodes v. Terheyden, et al., 272 Pa.*

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but, in that event, the doubt 397. But it has also said: “The Practice should be resolved against entering sumAct of May 14, 1915, P. L. 483, does not mary judgment, the power to do so beexpressly authorize the entry of judg. ing intended only for clear cases.” See ment by default for want of an affidavit Franklin Sugar Refining Co. v. Lykens of defense in case of tort: Parry v. Mercantile Co., 274 Pa. 206; Seaman v. First National Bank of Lansford, 270 Tamaqua National Bank, 280 Pa. 125. Pa. 556.

And now, August 18, 1924, for the Our opinion, filed January 15, 1923, reasons stated in the opinion filed by this discloses our view on the sufficiency of court, January 15, 1923, dismissing the the statement to sustain a suit for dam-motion to strike off plaintiff's statement, ages.

and the reasons set forth hereinbefore,

the rule granted in this case is disThe evidence with which the plaintiff charged, and the motion for judgment of will prove the facts and damages set non pros is refused. forth in the statement, he need not relate in the statement. The cause of the damages, the statement alleges, is the illegal taking or appropriating of certain

Berks Co. water by the plaintiff. The claim for damage and the cause of the damage, as Dombrowski v. Walczyglowa stated by the plaintiff, might be more grammatically or rhetorically stated, but they are stated with sufficient clearness for the defendant to deny or disprove

Practice, C. P.-Plaintiff's statement any false or incorrect allegation. As we-Goods sold and delivered-Book acstated in our opinion, the plaintiff will be bound by his allegations in the statement count without dates or descriptive items when he attempts to prove damages.

Affidavit of defense in lieu of demurUnder the circumstances as they appear on the record, the combined pleadings of the defendant, if affirmed, would Plaintiff sued for the value of a quantity

of bread, groceries and meats sold defendant result in the entry of a summary judg- at the latter's special instance and request, ment against the plaintiff . That practice averring that the prices charged were reamust be discouraged. The Superior sonable and that defendant promised to pay

such prices; and attached to his statement a Court, in Substantial Building & Loan copy of book entries which disclosed nothing Association v. Real Estate Title Insur- but a collection of figures.

an affidavit of defense in lieu of demurrer ance & Trust Company, 82 Pa. Sup. Ct. claiming that the copy of the book account 210, has said (quoting from the syllabi) : was insufficient in law to charge the defendjudgment should not be en- Held: that the action was founded on

the implied contract to pay for the goods detered under section 20 of the Practice livered by the plaintiff and not upon the Act; the following rule from Rhodes v. book account; and that the question whether Terheyden, 272 Pa. 397, should be ap- The admissable in evidence on the trial of the

or not the alleged copy of book entries would plied: "The question to be decided under

case is not raised by the present rule.

C. P. of

rer.

Defendant filed

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ant.

rer.

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Affidavit of defense in lieu of demur- cise and summary form of the material

facts on which the plaintiff relies for his

claim and in this respect complies with P. Herbert Reigner, for defendant.

the Practice Act." Paul N. Schaeffer, for plaintiff.

In Wilkes-Barre Automobile Co., v. Bertolet, J., July 26, 1924.- The de- Malinowski, supra, it was said: "We can fendant has filed an affidavit of defense not assent to the proposition that the acin lieu of demurrer to the plaintiff's tion is founded upon a book account, exstatement alleging that it sets forth no cept in a colloquial sense of the exprescause of action against the defendant, sion. It was founded upon the implied and that the copy of the book account contract to pay a reasonable price for attached to the plaintiff's statement is in- plaintiff's services of which the book acsufficient in law to charge the defendant. count would be evidence, but not the

only evidence, * The plaintiff sues for the value of a quantity of bread, groceries and meats To the extent that the plaintiff has resold to the defendant at the latter's spe- ferred to and attached a copy of entries cial instance and request during a period in his book, that portion of the statement beginning in January of 1923 and end- may be regarded as surplusage. It can ing September 10, 1923. He avers that not be said that a person may not recover the prices charged for the merchandise for goods sold and delivered, assuming are reasonable and that the defendant that in other respects he has in his statepromised to pay such prices. The totalment sufficiently complied with the rules, value which plaintiff seeks to recover is because he is unable to keep intelligible $182.35.

books of accounts. If it were a question To this statement of claim the plain

of pleading his claim with reference to a

book account, tiff attached a copy of book entries which

and offering the account in

evidence at the trial for the purpose of disclosed nothing more than a collection of figures.

proving his claim against the defendant,

another question would arise. The language used in Everars v. Wilcher, 3 Erie Co., L. J. 110, seems to be

Now, July 26, 1924, the affidavit of peculiarly applicable to this case. The defense in lieu of demurrer is overruled, court there said: “Whether or not the with leave to file a supplementary affidaalleged copy

of book entries would be ad-vit of defense to the averments of fact missable in evidence on the trial of this of the statement within fifteen days. case is a question which is not raised by this rule. This action is not founded on a book account, but on the implied contract to pay for the goods delivered by Q. S. of

Northumberland Co. the plaintiff, and the plaintiff can recover, even though the book entries are in- Commonwealth v. Grzybowski admissable, if the sales can be proven by other evidence: Wilkes-Barre Automobile Co., v. Malinowski, 57 Sup. Ct., 118.

Schools- ----Compulsory attendancePlaintiff can not be barred from his right of action because his book entries do not Free transportationSuitable shelter. show the date of sale; his right of action

It is the duty of a school board, under Secdepends not on his method of bookkeep- tion 1408, of the School Code of 1911, as ing, but on whether goods of the charac- amended by Section 4, of the Act of May 20, ter and value as claimed were sold and residing more than two miles from a school

1921, P. L. 1038, to furnish to school children delivered to the defendant. We are of house free transportation, and also to provide the opinion that the pleading setting proper shelter for them at the point on the

public highway to which school children come forth the character of the goods, the from a dwelling house situated off the highvalue and the month in which they were

A wagon shed used for the accommo

dation of wagons and farming implements delivered contains a statement in a con- and in actual use for that purpose is not a

way.

safe or suitable place for refuge in cases of school board notified him prior to suit of inclemency, and cannot be said to be such proper shelter as is contemplated by the Act his violation of the said compulsory atof Assembly. The shelter need neither be tendance law. The testimony as to elaborate nor imposing, but it should be safe whether or not the defendant had sent and sanitary, and consistent with the health, comfort, convenience and safety of the chil- his children on the days complained of dren, and commensurate with the funds of to either of the places where they were the district available for that purpose,

to be met by the conveyance is in conflict Appeal from conviction before a jus- but the undisputed testimony is that they tice of the peace for failure to comply were not in attendance at school on those with the provisions of the School Code days. regarding compulsory attendance.

In the light of these facts and the surC. C. Lark, Esq., for the Common- testimony, it was clearly the duty of the

rounding circumstances as shown by the wealth,

school board under Section 1408 of the Kearney & Shipman, Esq., and D. II. School Code of 191, as amended by Shipinan, Esq., for the defendant.

Section 4 of the Act of May 20, 1921,

P. I.. 1038, to furnish the defendant's Lloyd, J. February 25, 1924.--The children free transportation and also to clefendant was convicted before a justice provide proper shelter for them. The of the peace under Section 1123 of the wagon shed referred to in the testimony School Code for a failure to comply with I could neither afford adequate protection its provisions regarding compulsory at- nor is it, with its contents, as aforesaid, ten«lance. From the said conviction he a safe or suitable place for refuge in has appealed to this court.

cases of inclemency and hence cannot be From the testimony taken upon the ap

said to be such proper shelter as is con

The peal it appears that the defendant, who templated by said Section 1408. has children of school age, lives approxi- shelter need neither be elaborate nor immately four miles distant from the school posing but it should be safe and sanitary to which his children were assigned; and consistent with the health, comfort, that the school district furnished con

convenience, and safety of the children veyance for the transportation of pupils, and commensurate with the funds of the including those of the defendant; that district available for that purpose. The there was no particular place and no de- school board may not evade its duty by finite time fixed by the school board at mere literal compliance and neither may which the defendant's children should the parent escape the penalties by unmeet the said conveyance; that at cer

reasonable exactions. The spirit and tain times the conveyance met the chil-purpose of the Act must be considered dren aling the pulilic highway about a and regarded. A hearty and willing comile distant from the defendant's home operation, a spirit of forebearance and and about three miles from the school mutual help between the board and the building, while at other times it met them parent should prevail in order that the at a point on the public road at or near a welfare of the child and the state be proneighboring farm which was also about moted. a mile distant from the defendant's home Inasmuch as there is an apparent need and approximately three miles from the of stations or other proper shelter and said school building that at the first of none having been provided by the School said meeting places no shelter of any kind District of Shamokin Township for the was provider, while at the second place 11se of defendant's children, he was not there was a wagen shed, accessible to the amenable to the penalties prescribed by pupils, but which was itsed for the ac- said Section 1.123. The appeal is suscommation of wagons and farming' tained; but the board having apparently inplements and was in actual use for, acted in good faith in instituting these that purpose during the period in ques- proceedings, we direct that the record tion; that the children of the defendant costs thereof be paid by the County of had been absent from school and the Northumberland.

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C. P. of

York Co. ing that each of the paragraphs into

which the pleadings must be divided shall contain but one material allegation.

Reichard v. Paris

But this is not to be construed as lim

iting each paragraph of the pleadings to Pleading-Allegation defined-later- the allegation of a single material fact. ial allegations¿Inswering paragraph in An allegation in the technical sense in

which the word is used in the statute affidavit of defense-Lump charges and

prescribing the form of the pleadings, claims for damages-Striking off affida- has been defined to be “The assertion, vit of defense

declaration or statement of a party to an

action made in a pleading setting out An allegation, in the technical sense

in what he expects to prove”: Black's Law which the word is used in the statute prescribing the form of pleadings, is the asser- Dictionary, page 59. tion, declaration or statement of a party to an action made in a pleading setting out what he expects to prove.

the

The statute, however, limits The statute, however, limits the pleader to pleader to the making of “material althe making of material allegations,” which, legations" which should therefore conin an affidavit of defense, should consist only of such pertinent and material facts as may sist only of such pertinent and material constitute a proper defense in answer to the corresponding paragraph of the plaintiff's facts as may constitute a proper defense, statement. Such an answering paragraph in answer to the corresponding paramay, therefore, include many facts, and may be more or less extended, according to the graph of the plaintiff's statement. nature of the plaintiff's claim and of the defense set up thereto; and where the defense includes alleged contacts and arrangements

Such an answering paragraph may between the parties, followed by a series of therefore include many facts, and may transactions, which resulted in changed business relations and financial obligations from be more or less extended, according to those set forth in the plaintiff's statement, some latitude must be allowed in setting the the nature of the plaintiff's claim, and of same forth in pleadings.

the defense set up thereto. Where, as in Paragraphs which set forth lump charges and claims for damages, without properly this case, the defense includes alleged itemizing the same or giving in sufficient de contracts, and arrangements between the tail the facts upon which they are based, are defective; and an affidavit of defense con parties, followed by a series of transactaining such paragraphs in a counter-claim was stricken off.

tions which resulted in changed business

relations, and financial obligations, from Motion to strike off defendant's affidavit of defense and counter claim in John those set forth in the plaintiff's stateF. Reichard against Benjamin Paris, No. ment, some latitude must be allowed, in 28 August Term, 1924, in the Court of setting the same forth in the pleadings. Common Pleas of York Co., Pa. Motion allowed.

Giving due consideration to these mat

ters, we do not find that the paragraphs Stewart & Gerber, for motion. of this affidavit of defense, which are Niles & Neff, contra.

objected to by the plaintiff, so seriously

offend against the provisions of Section Wanner, P. J., October 20th, 1924.— 5 of the Practice Act of 1915, or The motion to strike off the affidavit of clearly fail to give the plaintiff a proper defense and the counter claim filed in understanding of the defense intended to this case, is based chiefly upon certain be made to his claim, as to require that alleged violations, of Section 5 of the the affidavit should be stricken off for Practice Act of 1915, P. L. 483, requir- these reasons.

SO

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