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We think the plaintiff's statement plaintiff upon information and belief, it must be stricken from the records, be-does not conclude or include also the cause of the defendant's motion and the averment of an expectation to be able to reasons given in support of said motion. prove the facts alleged.”
And now, April 7th, 1924: Plaintiff's On April 2nd, 1923, this court filed statement of claim is stricken off, with an opinion by President Judge Reno, in leave to the plaintiff to file a supplemen- the case of Henry Schleicher v. Norman tal or amended statement within fifteen J. Hunsicker, No. 189, January Term, days from this date, in accordance with | 1922, on motion to strike off a statement the requirements of the Practice Act in an appeal case, inte alia, as follows: I915.
"The legislative mandate subjecting ap
peals to the court of common pleas from C. P. of
Lehigh Co. judgments of justices of the peace to the
provisions of the Practice Act of 1915, Kurey v. Koczenocz is, at best, an unscientific extension of
the principles of pleading to proceedings
which immemorially have been Practice, C. P.-- Appeals from justice ducted ore tenus. Therefore, we are not
disposed to be astute or assiduous in dis- Pleading Plaintiff's statement covering defects in the statements and
affidavits of defense. Unless a party can Striking off - Affidavit-Acts of April affirmatively show that he is actually in14, 1921, P. L. 144, and May 14, 1915, jured or prejudiced by the pleading, or
that the preparation of his case for trial P. L. 483
is thereby made more difficult, we will The Act of April 14, 1921, P. L. 144, amend- not encourage in limine examination of ing the Practice Act of May 14, 1915, P. L. such pleadings. This disposition does 483, so as to include appeals from justices not arise from any desire to shirk the of the peace, and thereby providing for a plaintiff's statement and affidavit of defense labors incident thereto, but results from on such appeals, will be liberally construed. an ambition to save parties the expense
A plaintiff's statement of claim, on an ape and delay involved by such procedure. peal from a justice of the peace, will not be stricken from the record, because the affida- Litigants are entitled to an easy, cheap vit is made upon information and belief and effective system of judicature without an averment of an expectation to be able to prove the facts alleged.
whereby controversies involving comSchleicher v Hunsicker, 10 Leh. C. L. J. paratively small amounts may be speed181, followed.
ily adjudicated. That system the people Appeal from justice. Motion to strike provided through constitutional provisoff plaintiff's statement. Motion dis-ions creating justice' courts, and almissed.
though the legislature has now placed an
onerous obstacle in the way of the comWilliam H. Schneller, for plaintiff.
plete realization of that aim, we shall not Daniel M. Garrahan, for defendant lend our assistance to thwart it entirely motion.
by applying to these pleadings the strict
rules of technical common law pleading. Iobst, J., March 3, 1924. This pro- | The reasons which support this concluceeding is an appeal from a justice of sion would support a like determination
concerning motions to strike off pleadThe plaintiff filed his statement of ings in actions originally instituted here. claim on July 5th, 1923.
The Practice Act of 1915 was designed On July 21st, 1923, the defendant filed to simplify, not complicate, the process a motion to strike plaintiff's statement of pleadings; and the motion to strike from the record, alleging the following off should be employed only when the reason, "Plaintiff's statement of claim is form of the pleading under attack is so in violation of the Practice Act, nineteen flagrant a violation of the provisions of fifteen, in that the affidavit in and to said the act that an adversary is actually instatement of claim is insufficient in law jured and prejudiced thereby. Unless for the reason that being made by the that factor appears, the questions raised
by the motion are likely to be merely was filed against Donald M. Stewart, academic, and, to that extent, tempt lit-owner or reputed owner, and was for the igants to indulge in a vain pursuit of the payment of a debt due to the plaintiff as shadow instead of the substance of their contractor in the repair, erection and claims. That court best serves the law construction of said building. The whole which, while affording parties every fa- amount of the work done and the macility for securing even and exact jus- terials furnished aggregated $7,283.19, tice, also discourages anything that tends and the credit admitted to have been reto obstruct and delay its proceedings ceived was $6,063.21. On October 13, without promoting the great end of all 1923, the defendant presented his petilitigation. However, while we have thus tion, asking that the lien be stricken off, indicated our views upon motions to and thereupon this rule was granted, strike off pleadings generally, the pres- The sole ground upon which the deent determination applied only to the fendant rests his case is "that the mepleadings on appeals from justices of the chanic's lien does not set forth with sufpeace.”
ficient clearness and detail the kind of The court will not now deviate from labor and material furnished, but only this opinion.
sets forth the name to whom the amount Now, March 3rd, 1924, the motion to is due, and the amount, neglecting, in all strike plaintiff's statement of claim from cases, to set forth the kind of labor, the record is dismissed and the defend- hours, etc., and the nature and character ant is directed to file his affidavit of de- !of the material furnished.” If this is fense within fifteen days.
necessary, the lien must be stricken off,
because, while he sets forth certain bills C. P, of
as having been paid for labor and materBair v. Stewart
ials, he does not indicate the kind of labor or materials. I am convinced that
he was not bound to do this. Mechanic's lien - When sufficiently Palmerton v. Lesko, 277 Pa. 174 (Ad
In the recent case of Citizens Bank of specific.
vance Reports), Mr. Justice Simpson
said: "The objection to the 'lumped A mechanic's lien filed by a contractor for items' in them is of no avail, because the labor and materials furnished will not stricken off because it only sets forth the claimants were not sub-contractors, but amount and the name to whom due and not did their work under contracts with the the kind of labor, and number of hours, and the nature and character of the materials owners or their agent. Russell v. Bell, furnished where the contracts were with the
Pa. 47; Murphy v. Bear, 240 Pa. owner. Rule to strike off mechanic's lien.
In a late case clecided in this court Discharged.
(Steinback's Sons v. Keystone Oil SerHarry I.. Raub, Jr., for rule.
vice Company, 38 Lanc. Law Review
547) it was also held that “a mechanic's Chas. II. Eaby, contra.
lien will not be stricken off because no Landis, P. J., January 19, 1924.-On dates when the labor was done or mater
ials furnished are set out, and the hours August 23, 1923, the plaintiff filed a mechanic's lien for $1,219,98, against all of labor and materials furnished are
“ that certain tract of land, on which is lumped, where the contract was with the
To erected a three and one-half story brick owner of the premises
, dwelling house, situated on the west side the same effect is Brennan v. Kennedy, of and known as No. 318 North Duke 69 Pa. Superior Ct. 77. It seems to me Street, in the City of Lancaster, Penn- that, in view of these authorities, it is sylvania. Containing in front on said needless to discuss this question at furNorth Duke Street thirty-two and two
ther length. and one-quarter inches, and extend- The rule to strike off the mechanic's ing in depth of that
that width two lien is now discharged. hundred and forty-five feet.” The lien Rule discharged.
C. P. of
York Co. Axle & Spring Co., 270 Pa. 476. It folFalker v. American Chain Co.
lows that the referee did not err in awarding compensation. His findings of fact are supported by proof, and his
conclusions of law follow as of course.' Workmen's compensation-Power of (c) 'The findings of fact, conclusions court on appeal-Evidence to sustain of law and award of the referee are af
firmed, and the appeal is dismissed.'” findings-Res gestae—Compensable in- The referee selected by the Workjury.
men's Compensation Board heard the
witnesses in the case and, from the eviOn appeals from the Workmen's Compen-dence produced, found the facts upon sation Board, the revisory powers of the which compensation was awarded to the courts are limited to a determination of the question whether there is evidence to sup-grandchildren of the decedent whose port the findings, and whether the law has death was the subject of the claim and been properly applied to them. Where the findings of fact by the referee
inquiry. and the Compensation Board are based on L'pon appeal from the finding and evidence which leads to a reasonable infer- award of the referee, the Workmen's ence supporting the findings, they will be sustained.
Compensation Board heard the case de Statements made by the injured person novo, and, by an opinion rendered while his injuries were being dressed were properly admitted as part of the res gestae.
through one of their number, CommisAn injury, to be compensable, need not sioner Paul W. Houck, discussed and arise out of the employment, it need only oc- affirmed the referee's findings of fact cur in the course of it.
and conclusions of law, and confirmed C. Donald Swartz and Niles & Neff the award of compensation. with him, for appellant.
As we now view the law, our duties, Robert S. Frey, for appellee.
not so conclusive, are similar to the dut
ies of the appellate courts, as proRoss, J., April 14th, 1924.—This is an nounced in the recent case of Rodman appeal from a decision of the Work- vs. Smedley, 276 Pa. 296, in the opinion men's Compensation Board taken by the by Mr. Justice Walling, on page 298: defendant, The American Chain Com- "Our revisory powers are limited to a pany. It was arguel at the regular term determination of the question whether of Argument Court, March 18, 1924.
there is evidence to support the finding, The allegations of error upon which and whether the law has been properly the defendant (The American Chain applied to them, and does not enable us Company) bases its appeal, are as fol- to weigh conflicting evidence or decide lows:
what inferences should be drawn there"1. The learned board erred in find form." ing the following facts: (a) “That the Under that rule, we have reviewed all decedent met with an accidental injury the evidence in the light of the foregoin the course of his employment.' (b) ing exceptions or allegations of error,
( "That a causal connection between the and find that the evidence was sufficient injury and the decedent's death was upon which to base the facts found by proven.'
the referee and affirmed by the Work"2. The learned board erred in its men's Compensation Board. conclusions of law in awarding compen- "That the decedent met with an accisation to the claimant, which are as fol- dental injury in the course of his emlows: (a) 'We are satisfied that there ployment," as found by the Compensais sufficient evidence in the case to war- tion Board, is an entirely reasonable conrant the finding that the decedent met clusion under the testimony produced. with an accidental injury while in the It is not necessary for us to go into a course of his employment.' (b) 'In detailed discussion of the evidence, but our opinion the medical testimony in the to quote from the typewritten brief filed case meets the requirement laid down by by defendant's counsel, there is no doubt the Supreme Court in Fink v. Sheldon that the defendant's first complaint of
C. P. of
injury was at or immediately after the jury, to be compensable, must arise imtime he was performing, as a regular mediately out of the employment. That employee of the defendant, some work is the law in some states, but, as was which had evidently caused an abrasion said by Mr. Justice Schaffer, in the opinon one of his fingers, which caused the ion rendered for the Supreme Court, in application of remedies by the first aid Laraio v. Pennsylvania R. R., 277 Pa. nurse of the defendant.
382, 385, “The injury, to be compenThere was some evidence which would sable, does not have to arise out of the lead to the reasonable inference that the employment; it need only occur in course abrasion was caused by the contact of of it. Statutes containing the double reiron against an old or former "scratch" quirement, that the accident must arise on his finger, but, "an accident sustained out of and in course of employment, in the course of employment from an necessarily limit the field of recovery to unexplained cause is compensable": a smaller area than we have provided." Laraio v. Pennsylvania R. R., 277 Pa. April 14th, 1924: We affirm the find382; Balch v. Budd Mfg. Co., 277 Pa. ings and awards made by the Work548.
men's Compensation Board, and direct What he told the foreman as to the that judgment be entered accordingly. accident, showing him the injured finger, and what the foreman told him, to apply at once to the “First Aid department, and what he told the nurse at the First
Erie Co. Aid department when she examined his injury and applied salve and dressed it, McMasters v. Majewski
were not statements that could be considered admissible as conclusive evidence, but we think, under the circumstances developed under all the
Attachment — Requirements must be evidence in this case, these statements strictly complied with—Bond must be were a part of the res gestae: Guyer v. Equitable Gas Co., 279 Pa. 5.
approved by a judge-Cannot be substiWe also agree with the referee and the tuted. Compensation Board in concluding, as a matter of law, that the evidence of Dr. thorizing the issuing of writs of attachment
The language of the acts of assembly auGemmill, the attending physician, who against fraudulent debtors is imperative, and testified that, in his opinion, he, the de- must receive a strict construction. A party, cedent, died as a result of septicaemia acts, must strictly comply with all the re
in order to be entitled to the benefits of these following the injury to his finger. This quirements. was competent testimony which was evi- The bond, under the Act of 1887, must be dently believed by the referee and the approved by a judge of the court of common
pleas, before the attachment can be issued, Compensation Board, and we think with-hiling the bond which, or the approval of it in the rule as illustrated by the opinion by, the prothonotary, will not be sufficient. of Mr. Justice Walling rendered for the It is too late after the writ has been issued
or executed to ask for such approval; neither Supreme Court in Guyer v. Equitable can a new or sufficient bond be filed or apGas Co., 279 Pa. 5, and the authorities proved as a substitute for a bond already
filed and found to be defective. cited in that opinion on page 7.
We think this review of our examina- Rules to dissolve attachment. tion of the evidence taken before the referee and the Compensation Board is suf- Henry C. Baur, for plaintiff. ficient to demonstrate, together with the
F. B. Hosbach, for defendant. reports of the referee and Commissioner Houck, that the findings are well sus- Hirt, J., March 31, 1924.-A fraudutained by the evidence and that the con- lent debtor's attachment issued on the clusions of law are supported by estab- affidavit of plaintiff, alleging that delished rules.
fendant is attempting to secrete his propThe brief of the defendant's counsel erty with intent to cheat and defraud indicates that they believe that the in- plaintiff. A bond was filed in accordance with the act of assembly as to form, The bend, under the Act of 1887, except that the bond is not drawn to the must be approved by a judge of the Commonwealth for the use of defendant, court of common pleas, before the atbut directly to the defendant. The bond tachment can be issued; filing the bond was not approved by the court, however, with, or the approval of it by, the probut was filed in the office of the prothon- thonotary, will not be sufficient. It is otary without any approval.
too late after the writ has been issued or Defendant presented his petition to ther can a new and sufficient bond be
executed to ask for such approval; neidissolve the attachment, alleging that he filed or approved as a substitute for a
, is not indebted to plaintiff in any sum bond already filed and found to be dewhatever, and further, that he has not fective”: Elliott v. Plukart, 6 C. C. R. concealed nor attempted to conceal his property with the intent to defraud 51. plaintiff. On February nith defendant And now, March 31, 1924, the rule asked leave to file additional reasons for granted December 6, 1923, on defendthe dissolving of the attachment, alleg- ant's motion to dissolve the attachment, ing that the affidavit and bond are insuf- is made absolute, and it is ordered that ficient and not in accordance with the defendant file an affidavit of defense to act of assembly.
plaintiff's statement of claim within 15
days. In this case personal service was had and a motion to dissolve rather than to quash is the proper practice, and the general appearance of the defendant is
Allegheny Co. not a waiver of the defects in the affi- C. P. of davit or the bond, for even though the Deidrick v. Russell & Co. et al. attachment be dissolved, the suit goes on: Biddle v. Black, 99 Pa. 380.
The subject of a motion to dissolve
Pleading and practice - Replevin either may be allegations of defects in the affidavit and bond, or may consist in Statement of claim-Anticipation-Dea denial of the facts alleged in the affidavit. In the latter event depositions murrer-Damages-Oath-Act of 1901 must be taken in order to determine the issue of fact, but not in the former, for --Practice Act of 1915. such defects, if any, will appear from
An affidavit of defense in the nature of a the record. In our opinion, it is proper demurrer under the Practice Act of 1915 has to combine the allegations as to form and plevin are governed by the Act of 1901 and
no place in replevin. The pleadings in resubstance in a motion to dissolve, as in its amendments. A common law demurrer Hall v. Kintz, 13 C. C. R. 24, and for may yet be filed in such cases, but this is a
dilatory plea and must be supported by a this reason the rule granted on the mo- proper affidavit as provided for in Amended tion of February II, 1924, should be Court Rule No. 137.' made absolute.
A statement of claim in replevin shall be verified by oath and shall consist of a con
cise statement of plaintiff's demand setting We are of the opinion that on the forth the facts upon which his title to the
goods and chattels is based. The lease forms amended motion the attachment must
no part of plaintiff's statement, and the he dissolved for technical defects in the matter of damages claimed for the violation bond.
of planitiff's rights under it may only be set up in his reply to defendant's affidavit of de
fense. Amended Court Rule No. 139 must be "The language of the acts of assembly adhered to. Demurrer sustained with leave
to amend. authorizing the issuing of writs of attachment against fraudulent debtors is Statutory demurrer to declaration in imperative, and must receive a strict con- replevin. Overruled. struction. A party, in order to be entitled to the benefits of these acts, must
Raymond D. Evans, for plaintiff. comply with all the requirements.
Leonard S. Levin, for defendants.