Corbet v. Oil City Fuel Supply Co. , 1897 Pa. Super. LEXIS 184 ( 1897 )

Opinion by

Smith, J.,

Under section 37 of the equity rules, when a demurrer is overruled, the defendant shall be assigned to answer the bill within a period to be fixed by the court. In default of such answer, the bill shall be taken pro confesso and a decree made accordingly. Such decree shall also be made when the court deems the demurrer to have been for vexation and delay, and to have been frivolous or unfounded.

In Sewickley v. Gas Co., 154 Pa. 539, the court overruled a demurrer and entered a decree against the defendant. This was affirmed by the Supreme Court without discussion. The bill, indeed, exhibited a right in the plaintiff so obvious as to leave the demurrer utterly without foundation, thus justifying the decree. In R. R. Co. v. R. R. Co., 171 Pa. 284, the demurrer was sustained by the court below. On appeal it was overruled, and a decree entered against the defendants by the Supreme Court, in an opinion in which the frivolous and unfounded character of the demurrer was most cogently demonstrated by Mr. Justice Dean. A demurrer entirely groundless, as in those cases, must be regarded as intended only for vexation and delay.

In the present case, while the demurrer was properly overruled, we cannot regard it as so manifestly unfounded and frivolous as to justify a decree pro confesso as tbe penalty for what must be deemed an error of judgment in employing it. Without intimating anything as to the merits of the case, we think the defendant should have an opportunity of making a defense by answer. In such defense, all matters of law, affecting the merits of the bill, may be set up as effectually as on demurrer. Yet as no material injury can arise from preserving the status quo, the injunction, so far as necessary for this purpose, will be allowed to stand until final hearing and decree.

The decree is reversed, the demurrer is overruled and it is ordered that the defendant answer the bill within such reasonable time, after the return of the record, as shall be fixed by the court below, and. that the order made by the court below August 31, 1896, for the restoration of the status quo as it existed immediately before the service of gas was discontinued, be continued and remain in force until the final determination of the cause, the costs to await the final decree.