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LOCAL NO. 163 v. WATKINS (03/16/65)

decided: March 16, 1965.

LOCAL NO. 163, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, APPELLANT,
v.
WATKINS



Appeals from order of Court of Common Pleas of Luzerne County, Jan. T., 1962, No. 524, in case of Local No. 163, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, by Charles Quinton and William Zionce, trustees ad litem, v. Stuart Watkins, Thomas Pasternak, Harold Egroff et al.

COUNSEL

Martin D. Cohn, with him Laputka, Bayless, Ecker & Cohn, for appellant.

Thomas F. Burke, with him Thomas C. Moore, Nelson A. Bryan and Joseph V. Kasper, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Jones and Mr. Justice Eagen dissent.

Author: Cohen

[ 417 Pa. Page 121]

This is an appeal from an order of the lower court, en banc, sustaining defendants' preliminary objection in the nature of a motion for a more specific pleading and giving leave to file an amended complaint within twenty days.

[ 417 Pa. Page 122]

An order which merely sustains such a preliminary objection, without dismissing the complaint or entering judgment or otherwise terminating the action between the parties, is interlocutory, unless it "so restricts the pleader in respect of further amendments as, virtually, to put him out of court on the cause of action which he seeks to litigate." Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). Here, plaintiff has let the 20 day amendment period elapse and has admitted that it cannot further amend so as to satisfy the lower court's requirement of more particularity in respect to "the time, manner, and amounts of defendants' defalcations."

Because, in these circumstances, the lower court would have no alternative to entering a judgment against plaintiff, see Barnett v. Ross, 333 Pa. 510, 3 A.2d 923 (1939), Rhodes v. Terheyden, 272 Pa. 397, 401, 116 Atl. 364, 365 (1922), 2 Anderson Pennsylvania Civil Practice § 1017.41, p. 496 (1960 ed.), the order puts plaintiff out of court and, accordingly, is appealable.

A motion for a more specific complaint, under Pa. R.C.P. 1017(b) (3), is available so that a defendant's right and ability to answer and defend will not be unduly impaired by a plaintiff's vagueness in stating the grounds of his suit. Cf. 1 Goodrich-Amram § 1017(b) (9); Tarner v. Chambersburg Borough School District, 338 Pa. 417, 420-421, 12 A.2d 106, 108 (1940). The Rule that "[a]verments of fraud . . . shall be averred with particularity," Pa. R.C.P. 1019(b), is one of the express bases for the motion for specificity, its object being to dispel "the alluring generality of the term 'fraud,'"*fn1 when it appears without basic factual allegations. However, the motion for specificity cannot

[ 417 Pa. Page 123]

    be used to make a party plead purely evidentiary matters; and the requirements of precision and detail are more easily met where the matters involved are equally or more in the knowledge of the objecting party. Of course, the motion must be distinguished from a demurrer, under Pa. R.C.P. 1017(b) (4), which challenges the legal adequacy of the grounds rather than their specificity. Bradly v. Potts, 155 Pa. 418, 26 Atl. 734 (1893). See 1 Goodrich-Amram §§ 1017(b)-10, 1028(b)-1. With the nature and purpose of defendants' preliminary objection thus stated we may now test the propriety of the lower court's ordering of plaintiff to file a more specific complaint.

The plaintiff, an unincorporated association, is Local No. 163 of the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America. The defendants are former officers and agents of the Local. Plaintiff's action is in assumpsit and it seeks judgments against and accountings by the defendants, individually and jointly, for specified and other unknown amounts of losses arising out of the alleged unlawful diversion and conversion of union funds while defendants were officers or agents of the ...


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