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January 24, 1923; defendant's counsel

Hershey v. York Water Co., No. 2 tiled and served on counsel for plaintiff

Pleading and practice-Rule for more

specific averments of facts-Judgment

requests for a more specific statement, and a rule was granted on defendant to answer.

March 3, 1923, plaintiff filed his an

of non pros for failure to file a more spe-swer in the nature of the information

cific plaintiff's statement.

Where, after a motion to strike off a plaintiff's statement, the court held the statement

requested.

August 6, 1923, the defendant filed the

sufficient, and indicated that if the defendant following motion for judgment of non should deem the statement not sufficiently pros: "And now, to wit, August 6, 1923,

explicit, application may be made for more

the defendant is not entitled to judgment of non pros on the ground that the plaintiff

specific averment 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 1922, filed a motion to strike off the application gave the information requested, plaintiff's statement of claim, and the court on January 15, 1923, filed an opinion inter alia, as follows: "It is our opinion that the motion to strike off plaintiff's statement should be refused.

failed to file a more specific statement in accordance with the rule granted.

Motion by defendant for judgment of non pros for failure to file a more specific plaintiff's statement in Samuel W. "If defendant is of the opinion that Hershey v. York Water Co., No. 229 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. Reit will be allowed ten days from this date fused. to file its demand for a more specific averment of facts.

For opinion on motion to strike off plaintiff's statement, see Hershey v. York Water Co., 306 Y. L. R. 161.

"And now, January 15th, 1923, the defendant's motion to strike off the

Cochran, Williams & Kain, for mo-plaintiff's statement is refused;' and the

tion.

.1. J. Hershey, contra.

Ross, J., August 8, 1924.--The above named action of trespass was begun by the issuance of a summons, and the filing and service of a statement of claim, on the 17th day of August, 1922.

The defendant moved to strike off the statement, and in an opinion filed by this court, January 15, 1923, the motion was refused. [Hershey v. York Water Co., 36 Y. L. R. 161].

defendant, in pursuance of the permission so given, having on the 24th day of January, 1923, taken a rule for a more specific statement, in pursuance of which rule the plaintiff failed to file a more specific statement, but on the 3rd day of March, 1923, filed an answer to said rule.

"And the matter having come on for argument by agreement of counsel, whereupon the court declined to hear argument on the ground that there was no arguable question before it on the then state of the record, the said defendant, on motion of Cochran, Williams & Kain, its attorneys, respectfully moves the court to enter judgment of non pros in On January 17, 1923, Cochran, Wil-the above entitled action against the liams & Kain, counsel for defendant, above named Samuel W. Hershey, plainliams & Kain, counsel for defendant, tiff, for failure to file a more specific fied exceptions to the order of the court filed January 15, 1923.

statement in accordance with the rule so taken."

*

for the is not

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' we think the plaintiff has stated a case common law demurrer, 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 to entitle January 15, 1923. [36 Y. L. R. 161]. plaintiff, without amendment, to proceed It is true the appellate courts have said averred, it shows, as a question of law, to trial, but whether, upon the facts 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.* * * 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 judging 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 discharged, and the motion for judgment of non pros is refused.

Berks Co.

Dombrowski v. Walczyglowa

The evidence with which the plaintiff will prove the facts and damages set 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 water by the plaintiff. The claim for C. P. of damage and the cause of the damage, as 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 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 when he attempts to prove damages.

Practice, C. P.—Plaintiff's statement

count without dates or descriptive items Affidavit of defense in lieu of demur

rer.

Plaintiff sued for the value of a quantity of bread, groceries and meats sold defendant

averring that the prices charged were reasonable and that defendant promised to pay copy of book entries which disclosed nothing but a collection of figures. Defendant filed an affidavit of defense in lieu of demurrer claiming that the copy of the book account was insufficient in law to charge the defend

such prices; and attached to his statement a

Under the circumstances as they appear on the record, the combined pleadings of the defendant, if affirmed, would result in the entry of a summary judg-at the latter's special instance and request, ment against the plaintiff. That practice must be discouraged. The Superior Court, in Substantial Building & Loan Association v. Real Estate Title Insurance & Trust Company, 82 Pa. Sup. Ct. 210, has said (quoting from the syllabi): 66 * * * judgment should not be entered under section 20 of the Practice Act; the following rule from Rhodes v. Terheyden, 272 Pa. 397, should be ap-be admissable in evidence on the trial of the plied: "The question to be decided under

Held: that the action was founded on ant. the implied contract to pay for the goods de

livered by the plaintiff and not upon the book account; and that the question whether or not the alleged copy of book entries would

case is not raised by the present rule.

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

rer.

P. Herbert Reigner, for defendant.
Paul N. Schaeffer, for plaintiff.

Bertolet, J.. July 26, 1924.-The defendant has filed an affidavit of defense in lieu of demurrer to the plaintiff's statement alleging that it sets forth no cause of action against the defendant, and that the copy of the book account attached to the plaintiff's statement is insufficient in law to charge the defendant.

facts on which the plaintiff relies for his claim and in this respect complies with the Practice Act."

In Wilkes-Barre Automobile Co., v. Malinowski, supra, it was said: "We can not assent to the proposition that the action is founded upon a book account, except in a colloquial sense of the expression. It was founded upon the implied contract to pay a reasonable price for plaintiff's services of which the book account 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 total ment 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-book account, and offering the account in of pleading his claim with reference to a tiff attached a copy of book entries which disclosed nothing more than a collection of figures.

evidence at the trial for the purpose of 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 con

Northumberland Co.

Commonwealth v. Grzybowski

Schools

-Compulsory attendance

Free transportation-Suitable shelter.

tract to pay for the goods delivered by Q. S. of the plaintiff, and the plaintiff can recover, even though the book entries are inadmissable, if the sales can be proven by other evidence: Wilkes-Barre Automobile Co., v. Malinowski, 57 Sup. Ct., 118. Plaintiff can not be barred from his right of action because his book entries do not 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 delivered to the defendant. We are of the opinion that the pleading setting forth the character of the goods, the value and the month in which they were delivered contains a statement in a con

1921, P. L. 1038, to furnish to school children

house free transportation, and also to provide public highway to which school children come proper shelter for them at the point on the from a dwelling house situated off the high

way. A wagon shed used for the accommodation of wagons and farming implements and in actual use for that purpose is not a

proper shelter as is contemplated by the Act

and sanitary, and consistent with the health,

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 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 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 to be met by the conveyance is in conflict but the undisputed testimony is that they were not in attendance at school on those days.

the district available for that purpose,

Appeal from conviction before a justice of the peace for failure to comply with the provisions of the School Code regarding compulsory attendance.

In the light of these facts and the sur

C. C. Lark, Esq., for the Common-rounding circumstances as shown by the testimony, it was clearly the duty of the school board under Section 1408 of the

wealth.

The

Kearney & Shipman, Esqs., and D. W. School Code of 1911, as amended by Section 4 of the Act of May 20, 1921, Shipman, Esq., for the defendant. P. L. 1038, to furnish the defendant's Lloyd, J., February 25, 1924.-The children free transportation and also to defendant was convicted before a justice provide proper shelter for them. The of the peace under Section 1423 of the wagon shed referred to in the testimony School Code for a failure to comply with could neither afford adequate protection its provisions regarding compulsory at-nor is it, with its contents, as aforesaid, tendance. 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 apsaid to be such proper shelter as is conpeal 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 cerreasonable exactions. The spirit and tain times the conveyance met the chil-purpose of the Act must be considered dren along the public 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 provided, while at the second place use of defendant's children, he was not there was a wagon shed, accessible to the amenable to the penalties prescribed by pupils, but which was used for the ac- said Section 1423. The appeal is suscommodation of wagons and farming tained; but the board having apparently implements 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.

C. P. of

Reichard v. Paris

York Co. ing that each of the paragraphs into which the pleadings must be divided shall contain but one material allegation.

But this is not to be construed as limiting each paragraph of the pleadings to

Pleading Allegation defined-Mater- the allegation of a single material fact.

ial allegations-Answering paragraph in affidavit of defense-Lump charges and claims for damages-Striking off affidavit of defense.

An allegation, in the technical sense in

which the word is used in the statute prescribing the form of pleadings, is the assertion, declaration or statement of a party to an action made in a pleading setting out what he expects to prove.

The statute, however, limits the pleader to the making of "material allegations," which,

in an affidavit of defense, should consist only of such pertinent and material facts as may constitute a proper defense in answer to the

An allegation in the technical sense in

which the word is used in the statute prescribing the form of the pleadings, has been defined to be "The assertion, declaration or statement of a party to an action made in a pleading setting out what he expects to prove": Black's Law Dictionary, page 59.

The statute, however, limits the pleader to the making of "material allegations" which should therefore consist only of such pertinent and material

corresponding paragraph of the plaintiff's facts as may constitute a proper defense, statement. Such an answering paragraph in answer to the corresponding para

may, 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 busi

ness 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.

Paragraphs which set forth lump charges

the defense set up thereto. Where, as in 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 tions which resulted in changed business

was stricken off.

Motion to strike off defendant's affida-relations, and financial obligations, from vit of defense and counter claim in John those set forth in the plaintiff's stateF. Reichard against Benjamin Paris, No. 28 August Term, 1924, in the Court of Common Pleas of York Co., Pa. Motion allowed.

Stewart & Gerber, for motion.
Niles & Neff, contra.

ment, some latitude must be allowed, in setting the same forth in the pleadings.

Giving due consideration to these matters, we do not find that the paragraphs of this affidavit of defense, which are 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 SO 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.

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