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LOPEZ v. GUKENBACK. (01/16/58)

January 16, 1958

LOPEZ, APPELLANT,
v.
GUKENBACK.



Appeal, No. 230, Jan. T., 1957, from judgment of Court of Common Pleas No. 3 of Philadelphia County, in case of Paula Lopez et al. v. Edward W. Gukenback. Judgment affirmed.

COUNSEL

A. Leon Higginbotham, Jr. with him William H. Brown, III, Doris M. Harris and Norris, Schmidt, Green, Harris & Higginbotham, for appellants.

John J. Tinaglia, with him Michael A. Foley, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 391 Pa. Page 360]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

[ 391 Pa. Page 361]

This is an appeal from the refusal of the court below to take off a judgment of compulsory non-suit entered in an action for damages for personal injuries.

On this review we adhere to the rule that on an appeal from a refusal to take off a compulsory non-suit we must view the evidence and all reasonable inferences arising therefrom in the light most favorable to the plaintiffs (appellants): Auel v. White, 389 Pa. 208, 210, 132 A.2d 350; Layman v. Gearhart, 389 Pa. 187, 190, 191, 132 A.2d 228; Seng v. American Stores Co., 384 Pa. 338, 121 A.2d 123; Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A.2d 77.

In September 1953 appellants leased*fn1 a two-room - bedroom and kitchen - apartment for themselves and their six children on the second floor of a building owned by appellee. This building - three story in height and located at 1724 Wallace Street, Philadelphia - contained six apartments.

Approximately two months later - November 8, 1953 - while in the bedroom, the wife-appellant heard her husband shouting to her from the kitchen: "rush to the windows, put the windows up, that the children are being overcome with gas ..." and she rushed to the window, lifted it and the window glass fell on her right hand and wrist inflicting very serious injuries.

At the time appellants leased the apartment this window - one of two bedroom windows - was cracked; there was a one-inch hole in the center of the window glass and two cracks extending the full width of the lower pane, the cracks being in the shape of a cross. The window frame appeared old and the putty very dry. Each week as the husband-appellant paid his rent he told the appellee's agent of the condition of the window and glass; on several occasions the appellee's agent

[ 391 Pa. Page 362]

    promised to repair the defective condition. The appellants were aware of the window's condition when they rented the apartment and throughout the weeks which followed. During appellants' occupancy of the apartment prior to the accident the window was never opened.

When the court below granted the compulsory non-suit exceptions were properly and promptly filed. Thereafter the court refused appellants' motion to take off the compulsory non-suit and this appeal ensued.

Appellants' argument is twofold: (1) that the appellee, by his failure to file an answer to the complaint, admitted possession and control of the window; (2) that, under the facts of the case, appellee was shown to be in possession and control of the window and the court should have submitted that issue to the jury.

Pa. R.C.P. 1045(a) provides as follows: "(a) A party who fails to file a responsive pleading shall be deemed to admit all averments relating to the identity of the person by whom a material act was committed, the agency or employment of such person or the ownership, possession or control of the property or instrumentality involved. All other averments shall be deemed to be denied."

This rule draws a distinction between averments; it classifies the averments which do and the averments which do not require responsive pleading. The clear import of the rule is that before any responsive pleading is required there must be an averment. Failure to file a responsive pleading does not constitute an admission of an unvoiced charge; a response or answer presupposes a charge or accusation made. Absent an ...


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