Snell v. Nickles

1 Pa. D. & C. 487, 1922 Pa. Dist. & Cnty. Dec. LEXIS 84

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: April 21, 1922
• Docket: No. 7517
• Status: Published

Opinion

Bartlett, J.,

This case came on for hearing on the argument list for disposition of a question of law raised in the reply to a counterclaim set up in the defendant’s affidavit of defence; likewise raising the question as to whether this was the proper practice. No formal motion was filed.

The record in the case shows the plaintiff brought an action in assumpsit to recover on three promissory notes.

To the statement of claim defendant filed his affidavit of defence, setting up a counter-claim, to which counter-claim the plaintiff filed a reply in the nature of a demurrer.

Section 14 of the Practice Act of May 14, 1915, P. L. 483, provides: “In actions of assumpsit, a defendant may set off or set up by way of counterclaim against the claim of the plaintiff any right or claim for which an action of assumpsit would lie, and a verdict may be rendered in his favor for the amount found to be due, and judgment entered thereon. If in any case in which the defendant sets up a counter-claim the action of the plaintiff is discontinued, dismissed or a voluntary non-suit suffered, the counter-claim, nevertheless, may be proceeded with.”

Section 15 of the Practice Act of 1915 provides, inter alia: “The set-off or counter-claim shall be regarded as the defendant’s statement of claim, and the plaintiff’s reply as an affidavit of defence thereto.”

In the case at bar, therefore, the defendant’s set-off or counter-claim is to be regarded as his statement of claim, and as a statement of claim may be attacked by an affidavit of defence raising a question of law, we see no reason why a set-off or counter-claim should not be attacked in the same manner.

Defects in form may be attacked by motions to strike off; defects in substance by the plaintiff’s reply raising questions of law.

In the case at bar the set-off or counter-claim is one in the nature of a tort, setting up a fraud practiced upon the plaintiff.

The Practice Act provides that set-off or counter-claim, to be good in law, must be “any right or claim for which an action of assumpsit would lie.”

For the above reason, we regard it proper practice to attack the counterclaim, as was done by the plaintiff in this case, and the court, therefore, sustains the question of law raised by the reply filed, and the counter-claim of the defendant, as filed in his affidavit of defence, is stricken off.