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BOGOJAVLENSKY v. LOGAN (07/17/56)

July 17, 1956

BOGOJAVLENSKY
v.
LOGAN, APPELLANT.



Appeal, No. 118, Oct. T., 1956, from judgment of Municipal Court of Philadelphia County, Oct. T., 1955, No. 979, in case of Victor Bogojavlensky et al. v. Beatrice C. Logan. Judgment reversed.

COUNSEL

Lewis Tanner Moore, for appellant.

C. Laurence Cushmore, Jr., with him Wayland H. Elsbree and White, Williams & Scott, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Rhodes

[ 181 Pa. Super. Page 315]

OPINION BY RHODES, P.J.

This is an appeal by defendant from a judgment entered on plaintiffs' motion for judgment on the pleadings which consist of the complaint in assumpsit and answer. The action was for the return of the payment made by plaintiffs to defendant under a contract for the purchase of land and the construction of a dwelling thereon. The question involved is whether the court below erred in entering judgment without granting leave to defendant to amend her answer.

Plaintiffs in their complaint alleged that defendant breached the contract in failing to perform on the date set forth therein, and that therefore they were entitled to the return of the $2,000 paid under the contract. The contract was executed by the parties on July 11, 1955, and provided that defendant would sell a certain piece of ground to plaintiffs and construct thereon a new split-level house in accordance with the plans and specifications attached to the contract. After the execution of the contract the parties further agreed that for an additional consideration plaintiffs would purchase from defendant an adjacent piece of ground. The complaint further set forth that a provision in the contract to the effect that a $2,000 ground settlement was to be paid before starting construction on the house was added by defendant after the signing of the contract. It was also averred that possession was to be delivered on October 1, 1955, and that as of the date of the preparation of the complaint (October 17, 1955) no substantial construction had been commenced. Defendant answered that the provision of the contract relative to the payment of $2,000 was added subsequent to the signing thereof by understanding of the parties,

[ 181 Pa. Super. Page 316]

    and that the delay in delivering possession was caused by plaintiffs' failure to make timely payment of the $2,000 before the starting of construction on the house. The $2,000 was not paid until August 16, 1955, after which, according to defendant's answer, defendant "immediately started to fulfill the terms of the contract." Plaintiffs thereupon took the deposition of defendant's agent concerning a letter to which reference was made in the answer. Plaintiffs then moved for judgment on the pleadings which the court below granted. Defendant's subsequent petition to open the judgment and for leave to file an amended answer was refused. Defendant has appealed from the final judgment.

We recently had a similar situation before us in Lehner v. Montgomery, 180 Pa. Superior Ct. 493, 119 A.2d 626, wherein our late colleague Judge ROSS, reviewing the function of the court in passing upon a motion for judgment upon the pleadings, said (pages 500, 501 of 180 Pa. Superior Ct., page 630 of 119 A.2d): "Where the essential facts of a plaintiff's case are clearly admitted by the defendants, who set up no additional defense, then there is warrant to enter a final judgment on the pleadings, but where the admissions are at most technical, and strained at that, the judgment is most certainly improper. Under the circumstances, here a summary judgment should not have been entered. While Pa. R.C.P. 1034 allows a motion for judgment on the pleadings just before trial and gives the court the power to enter any order which is 'proper on the pleadings,' a final judgment should not be entered unless the case is clear and free from doubt. Vrabel v. Scholler, 369 Pa. 235, 239, 85 A.2d 858. Since the motion is in the nature of a demurrer, the averments in the answer and every reasonable inference arising therefrom must be accepted as true, Cary v. Lower Merion School District, 362 Pa. 310, 66 A.2d 762; provided,

[ 181 Pa. Super. Page 317]

    of course, the facts are properly pleaded. In this respect though, if there is a defect in the pleading which could be cured by amendment, the judgment should not be entered without affording an opportunity to amend. Holladay v. Fidler, 158 Pa. Superior Ct. 100, 102, 43 A.2d 919. If the lower court felt that defendants had not set forth sufficient details of their defense on the question of the statute of frauds, it should have first given them an opportunity to correct the technical defects and then if they failed, enter the judgment. Philadelphia v. Pachelli, 168 Pa. Superior Ct. ...


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