Marlatt v. Fire Ass'n. of Phila.

Argued November 10, 1936. Defendant appeals from the refusal of the court below to enter judgment in its favor for want of a sufficient plaintiff's reply to the averments of new matter set up in its affidavit of defense.

The same practice will be applied in such cases as is in force with respect to rules for judgment for want of a sufficient affidavit of defense, viz., summary judgment, without a trial, will be entered only where the right to the same is clear and free from doubt. If the right to a summary judgment is, at all, in doubt the rule will be discharged, and the parties remitted to trial: Kaster v. Penna. Fuel Supply Co., 300 Pa. 52, 150 A. 153, and cases therein cited.

It is not necessary, at this time, to refer to the facts of the case, for on full consideration of the pleadings involved and the arguments of counsel, we are not satisfied that the defendant's right to a summary judgment for want of a sufficient reply to the averments of new matter contained in the affidavit of defense is so clear and free from doubt as to require us to convict the court below of error in refusing judgment at this time.

Following the usual course pursued in like cases, we shall not discuss the applicable rules of law until an opportunity is had to develop the facts fully at trial.

The order appealed from is affirmed.