Dalton v. Finkel

86 Pa. Super. 528, 1925 Pa. Super. LEXIS 173

• Court: Superior Court of Pennsylvania
• Decided: October 21, 1925
• Docket: Appeal 182
• Status: Published

Opinion

Per Curiam,

The question raised by the appeal is ruled by the decision of this court in Bovaird v. Barrett & Son, 78 Pa. Superior Ct. 68. “Section 20 of the Practice Act of 1915, P. L. 483, authorizes the entry of judgment by the court in favor of the defendant where the affidavit of defense raises a question of law, without answering the averments of fact in the plaintiff’s statement, but only where the questions of law arise out of facts averred in the plaintiff’s statement.......The Practice Act makes no provision for a reply by the plaintiff to the averments of fact contained in the affidavit of defense, unless they set up a set-off or counter-claim”. The statement filed by the plaintiff in the present case was sufficient to support the action. The defendant filed an ¡affidavit denying the averments of fact in the plaintiff’s statement, and later filed a supplemental affidavit of defense averring that he (defendant) was informed and believed and expected to be able to prove, that the plaintiff was not entitled to recover for the reason that he (plaintiff) is engaged in the practice of architecture in the city of Philadelphia without* securing from the State Board of Examiners of Architects a certificate of his qualification to practice and without registering with the said Board of Examiners. The court below held that the plaintiff was required to answer and deny this allegation of alleged new matter ■and entered judgment in favor of the defendant. This allegation of defense to plaintiff’s action was purely a matter of defense, not an averment of set-off or counterclaim, and the plaintiff was not obliged to answer it.

The judgment is reversed and the record remitted for further proceedings.