Stanton S. Oswald, Louis M. Cohen, Wolf, Block, Schorr, Solis-Cohen, Philadelphia, for appellant.
Robert L. Trescher, Philadelphia, John T. Acton, Bryn Athen, Montgomery, McCracken, Walker & Rhoads, Isaac S. Grossman, Philadelphia, for appellee.
Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodise and Ervin, JJ.
[ 176 Pa. Super. Page 356]
Plaintiff wife and defendant husband executed a separation agreement in 1949 which provided, inter alia, that the defendant should pay $200 per month support 'to continue until the remarriage or death of Wife or the death of Husband, whichever shall first occur and shall thereupon terminate.' The parties were subsequently divorced. The husband failed to make the
[ 176 Pa. Super. Page 357]
usual $200 payment in November, 1953, and the wife brought suit therefor. In her complaint the wife plaintiff set forth the agreement and the alleged default and further averred that she had never remarried. Defendant's answer admits the allegations in the complaint except that of plaintiff's non-remarriage, to which he answered that he was without knowledge thereof, the proof lying within plaintiff's exclusive control and demanded proof thereof. Plaintiff then filed a motion for judgment on the pleadings, which was granted by the court below. The court below reasoned that the wife's non-remarriage was a condition subsequent and not precedent to the payment of monthly support, was therefore not a necessary allegation in the complaint, and would have to be denied by defendant under new matter.
Assuming, without specifically deciding the matter, that the plaintiff's nonremarriage is a condition precedent to her right to receive each monthly installment of support, she would then be required to plead generally that such condition had been complied with. Pennsylvania Rule of Civil Procedure 1019(c), 12 P.S.Appendix. The plaintiff has complied with that requirement by pleading specifically in her complaint that she had never remarried. Rule 1019 (c) further requires that 'a denial of such performance or occurrence shall be made specifically and with particularity.' The defendant contends that he has complied with this requirement, and thereby raised an issue of fact, by including in his answer the following as to plaintiff's remarriage: 'Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that the plaintiff has never remarried, because the means of proof are within the exclusive control of an adverse party or hostile person, wherefore proof thereof is demanded. Accordingly, the averment that the plaintiff
[ 176 Pa. Super. Page 358]
has never remarried is deemed to be denied in accordance with Pennsylvania Rule of Civil Procedure No. 1029(c).'
We cannot agree that defendant's answer sets forth a proper denial or raises an issue of fact. Rule 1029(c)(2) can be invoked only when the means of proof are within the exclusive control of an adverse party or hostile person. Since marriage is a matter of public record, Rule 1029(c)(2) is inapplicable here. Defendant protests that he cannot search every court house in the land. Conversely, the plaintiff cannot get a monthly affidavit from every court house that she has not remarried. The most that she can do is what has been done, viz. declare, by sworn affidavit, that she has not remarried. If defendant has evidence to the contrary, which he admittedly has not, he must set it forth in his answer 'specifically and with particularity.' If defendant's answer were held sufficient, the jury would be presented with a plaintiff stating under oath that she had not remarried and a defendant without a scintilla of contradictory evidence. Such a vain and useless procedure shall not be encouraged.
Since the defendant has not filed a proper denial and admittedly has no evidence from which such averment can be made, judgment for plaintiff ...