Appeal, No. 60, March T., 1953, from order of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 1324, in case of Arnold Epstein, Exr., Estate of Emmanuel Epstein, deceased v. A. C. Kramer, Proprietor, A. C. Kramer Distributing Company. Appeal quashed.
Alexander Cooper, with him Leonard Boreman, for appellant.
Reuben Fingold, with him A. S. Fingold and Fingold & Fingold, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This appeal is from an order refusing the defendant's motion for judgment on the pleadings which consisted of a complaint in assumpsit, an answer to the merits also setting forth an affirmative defense under new matter and a reply to the new matter. As the order is manifestly interlocutory, its appealability was raised at bar and the ensuing discussion has since been supplemented by further briefs of the parties. The
defendant, contending that such an order is appealable, relies upon the ruling in Colonial Securities Co. v. Levy (No. 1), 301 Pa. 229, 230-231, 151 A. 811 (1930). There, a motion to quash appeals from orders of similar character was refused in a per curiam opinion. However, the present is the first instance of an appeal to this court from such an order since the ruling in the Colonial Securities case almost a quarter of a century ago and, in view of the apparent conflict injected into existing law by the decision in the Colonial Securities case, we deem it appropriate and advisable to re-examine the reasons given for the ruling in that case.
In O'Hara v. Parrish et al., 89 Pa. Superior Ct. 177, 178, the defendants moved for judgment for want of a sufficient reply to their counterclaim pursuant to Section 17 of the Practice Act of 1915, P.L. 483, which provided that "When the defendant sets up a set-off or counter-claim, he may move for judgment against the plaintiff for want of a reply, or for want of a sufficient reply to the whole or any part of the set-off or counterclaim; and the court may enter judgment in favor of the plaintiff, or the defendant, for such amount as shall be found due, with leave to proceed for the balance." The motion for judgment having been refused, the defendants appealed. In quashing the appeal, Judge (later Mr. Justice) LINN, whose scrupulous regard for the rules governing appellate jurisdiction and procedure was notable, said, in speaking for the Superior Court, -- "We know of no statute authorizing an appeal from such an interlocutory order. While section 15 of the Practice Act provides that 'The set-off or counterclaim shall be regarded as the defendant's statement of claim, and the plaintiff's reply as an affidavit of defense thereto,' 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
(under the Act of April 20, 1905, P.L. 239) for possession of premises purchased at a sheriff's sale. The appellant contended that "... the refusal of the judgment at bar is a 'final,' appealable order, because the case comes within the provisions of the Act of April 18, 1874, P.L. 64, expressly allowing an appeal where judgment for want of a sufficient affidavit of defense is refused.". In rejecting this contention, Mr. Justice MOSCHZISKER, speaking for this court, said (p. 128), -- "In the first place, the act cited has no general application to special statutory proceedings such as those before us; and, next, even when this legislation applies, it does not follow that an order appealed from thereunder is, ex necessitate, 'final.' Under the Act of 1874, supra, an appeal lies from the declination of the court to enter judgment for want of a sufficient affidavit of defense, not by reason of the refusal being a final judgment, in the technical sense of that term, for it is not, but simply because the statute expressly provides for an appeal in such case. We 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 summary judgment on the pleadings was affirmed in a brief per curiam opinion (see Colonial Securities Co. v. Levy, (No. 2), 302 ...