City of Philadelphia v. Kane
| Decision Date | 07 January 1982 |
| Citation | 438 A.2d 1051,63 Pa.Cmwlth. 643 |
| Parties | CITY OF PHILADELPHIA, Appellant, v. Lawrence R. KANE, Appellee. |
| Court | Pennsylvania Commonwealth Court |
Alan Jay Josel, Norristown, for appellant.
Timothy R. Smith, Yardley, Michael Radbill, Philadelphia, for appellee.
Before MENCER, ROGERS and BLATT, JJ.
The City of Philadelphia appeals from a refusal by the Court of Common Pleas of Bucks County to grant judgment on the pleadings in an action of assumpsit for the recovery of wage taxes, interest, and penalties as provided by its Wage and Net Profits Tax Ordinance. 1
A very narrow point of pleading is involved here. The City of Philadelphia alleged that assessments were made against Lawrence R. Kane for taxes due for the years 1972-75 and that he "was duly notified of such assessments." Kane's answer to that allegation was a denial "since the identity of such assessments is in question and (Kane) is without knowledge or information because the means of proof are within the exclusive control of the (City of Philadelphia)."
Pa.R.C.P. No. 1029(c) reads:
(c) An averment shall be deemed to be denied if proof thereof is demanded and the pleader states either (1) that after reasonable investigation he is without knowledge or information sufficient to form a belief as to the truth of the averment, or (2) that he is without such knowledge or information because the means of proof are within the exclusive control of an adverse party or hostile person. The pleader shall not be required to state what investigation he has made or to rely upon information received from an adverse party or hostile person.
The Pennsylvania system of fact pleading requires that the pleading must define the issues, and every act or performance essential to that end must be set forth in the complaint. A court has wide discretion in determining whether a particular averment is a conclusion of law or an averment of fact and in determining the amount of detail that must be averred. Here, the lower court concluded that the averment that Kane was duly notified of the assessments was insufficient to apprise him that he received notice, as contrasted to the possibility that the averred notice was constructive, deemed, or implied as a matter of law. A simple declarative averment setting forth even minimal details of the alleged notice would have sufficed.
The averment in question placed Kane in a position to plead a denial based on...
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