195 A. 912 | Pa. | 1937
Plaintiff, employed by the defendant, the Pennsylvania Railroad Company, was injured and for a time received benefits from a Relief Fund under the general administration of what, in Exhibit No. 1, is designated as The Pennsylvania Railroad Voluntary Relief Department. He avers that he received "relief benefits due up to May 11, 1932" but none thereafter, and seeks to recover them from the railroad company in this action of assumpsit.1
Defendant, desiring to challenge the legal sufficiency of the statement of claim, filed what it entitled "Affidavit of Defense" purporting to set forth "in compliance with Section 20" of the Practice Act, certain reasons why the statement was insufficient. After hearing, judgment for defendant was entered. Plaintiff has appealed.
Appellant's first point is that the so-called Affidavit of Defense is ineffective because it was not sworn to, and *158
therefore was not an affidavit of defense. Certainly the pleading, unverified by oath, did not comply with the statute which requires an affidavit.2 The plaintiff did not move to strike off the pleading for want of conformity with the statute, nor did he ask for judgment for want of a sufficient affidavit. Defendant's pleading was defective as plaintiff now points out, but the defect does not help him. It is settled that judgment will not be entered in favor of a plaintiff for want of a sufficient affidavit of defense, if, in his statement of claim, he has not averred a good cause of action: Parry v.Bank,
The statement of claim contains many exhibits bearing on plaintiff's relationship to the Relief Fund and the obligations of the railroad companies associated, as the statement shows, in the administration of The Pennsylvania Railroad Voluntary Relief Department. It is unnecessary to quote these; some of them may be seen in a recent opinion of the Superior Court(Cimprich v. Pennsylvania Railroad Co.,
The statement of claim shows that the employer assumed certain obligations but the plaintiff has averred no breach of any obligation assumed by defendant. It agreed to make up any deficit in the contributions to the Relief Fund and agreed to take general charge of the Department and guaranteed the fulfillment of the obligations assumed by it in conformity with the regulations. It agreed to supply the necessary facilities for conducting the business of the department, to pay the operating expenses, to take charge of the funds and to be responsible for their safe-keeping. No facts are averred which establish an unsatisfied default of the beneficial association and consequent failure by the defendant to comply with its guaranty; there is nothing to show a breach of trust in the safe-keeping of the funds of the Department, or other omission to do what defendant had agreed to do.
The learned court below was of opinion that plaintiff's statement disclosed that, in seeking redress, he had failed to comply with regulations of the Relief Fund, and that he had failed to appeal to the Advisory Committee from the conclusion of the Superintendent of the Relief Department excluding him from the receipt of further benefits. The regulations quoted in Exhibit No. 32 made provision for such appeal. If plaintiff has not exhausted the remedy provided by the regulations which he agreed to accept as final, he is barred from further proceeding: Maloney v. U. M. W. A.,
Judgment affirmed.