STANLEY CO. OF AM. v. FORUM A. CO., 328 Pa. 307 (1938)

195 A. 874

Stanley Company of America v. Forum Amusement Company, Appellant.

Supreme Court of Pennsylvania.December 3, 1937.
January 3, 1938.

Practice — Judgment for want of a sufficient reply — Summary judgment — Clear cases.

It is only in clear cases that the appellate court will reverse for a refusal to summarily dispose of a controversy.

Argued December 3, 1937.

Before SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

Appeal, No. 233, Jan. T., 1937, from order of C. P. No. 3, Phila. Co., Sept. T., 1936, No. 4548, in case of Stanley Company of America v. Forum Amusement Company. Order affirmed.

Assumpsit.

Rule by defendant for judgment for want of a sufficient reply discharged, opinion by DAVIS, P. J. Defendant appealed.

Error assigned was discharge of rule for judgment.

Joseph K. Willing, of Sterling Willing, with him Elias Magil, for appellant.

D. Benjamin Kresch, with him Nathan Silberstein and Wolf, Block, Schorr Solis-Cohen, for appellee.

PER CURIAM, January 3, 1938:

This action is in assumpsit to recover on a promissory note given by defendant to plaintiff. Defendant counterclaimed

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upon a written lease and averred that plaintiff had failed to pay the rent in full. A reply was filed to the counterclaim in which it was set up that the defendant had voluntarily granted plaintiff a reduction in rent and had accepted as payment in full the reduced sum. Defendant filed a rule for judgment for want of a sufficient reply. The court below refused to enter judgment, stating in its opinion that the reply to the counterclaim raised questions of fact which should be submitted to a jury.

Our examination of the record shows this not to be such a clear case as warrants summary judgment. It is only in clear cases that we will reverse for a refusal to summarily dispose of a controversy: Rhodes v. Terheyden, 272 Pa. 397, 116 A. 364 Aultman v. Pittsburgh, 326 Pa. 213, 192 A. 112.

Order affirmed.