Gambler v. Huyett

679 A.2d 831, 451 Pa. Super. 351, 1996 Pa. Super. LEXIS 2513
CourtSuperior Court of Pennsylvania
DecidedJuly 31, 1996
StatusPublished
Cited by4 cases

This text of 679 A.2d 831 (Gambler v. Huyett) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gambler v. Huyett, 679 A.2d 831, 451 Pa. Super. 351, 1996 Pa. Super. LEXIS 2513 (Pa. Ct. App. 1996).

Opinions

CIRILLO, President Judge Emeritus:

Plaintiff/appellant, Mildred Gambler, appeals from two orders entered in the Court of Common Pleas of Berks County.1 The first order granted appellee Fleet Mortgage Corporation’s motion for judgment on the pleadings. The second order granted Fleet’s motion to set aside a sheriff’s sale. We affirm.

Briefly, this case involves two parties vying for priority liens on real property located in Reading. The parties are Mildred Gambler, a plaintiff who recovered a default judgment in a personal injury action against the now deceased owner of the property, and Fleet Mortgage, which recovered a default judgment in a mortgage foreclosure action on the property. Gambler’s damages judgment was not recorded until after Fleet Mortgage recovered its default judgment on the mortgage. Gambler’s damages judgment, however, was recorded prior to the sheriffs sale. Fleet neglected to notify Gambler of the impending sale in violation of Pa.R.C.P. 3129.1; however, the trial court set aside the sheriffs sale and ordered the sale rescheduled with specific notice to Gambler. Despite the fact that the order places Gambler in the same position as before the original sale, Gambler has appealed the order setting aside the sale, as well as the order granting Fleet judgment on the pleadings.

Mildred Gambler initiated an underlying action in this case against Lance A. Williams, seeking damages for personal injuries sustained in an automobile accident. In that action, the court entered a default judgment against Williams on the issue of liability. That judgment was entered on October 28, 1992. Damages were to be determined at a later date by the Board of Arbitrators.

On November 16, 1992, three weeks after the entry of Gambler’s default judgment, Fleet Mortgage Corporation commenced a mortgage foreclosure action against Williams and Deborah A. Palmer. Williams and Palmer were co-owners of the property located at 411 Birch Street in Reading, Pennsylvania, holding as joint tenants with the right of survivorship. On April 21, 1993, Fleet entered a default judgment against Williams and Palmer. On that same date, Fleet filed a praecipe for a writ of execution without Pa.R.C.P. 3129.12 notice to Gambler. Thereafter, Williams died. Scott L. Huyett, Esquire, administrator of Williams’ estate, was substituted in the Gambler action.

On June 18,1993, the Board of Arbitrators awarded Gambler $7,500.00 in damages. The award was reduced to judgment on July 1, 1993.3 Eight days later, on July 9, 1993, [833]*833pursuant to the writ of execution, Fleet purchased the property at a sheriffs sale for $840.38.

Gambler filed a praecipe for the issuance of a writ of revival of (adverse) judgment against Huyett, as Administrator of Williams’ estate, Palmer, and Fleet Mortgage, as terre tenant. In so doing, Gambler sought to have the liability judgment “revived” as a priority lien against the real property, which property, at that point, was titled in Fleet’s name due to the mortgage foreclosure and sheriffs sale.

The writ of revival was served upon Huy-ett, Palmer and Fleet Mortgage.4 The pro-thonotary indexed the writ in the judgment docket against Williams, Palmer and Fleet Mortgage. Fleet filed an answer to the writ with new matter, objecting to the prothonota-ry’s indexing of the writ on the docket. Gambler filed a reply.

On March 29,1994, Fleet Mortgage filed a motion for judgment on the pleadings with a supporting brief which contained affirmative defenses not included in its new matter. Gambler filed a brief in support of the writ of revival, answering the affirmative defenses not raised in new matter.

Gambler then filed a praecipe for oral argument asking the trial court to determine that her “lien” had priority over the lien created by Fleet’s default judgment. The trial court heard argument. The court denied Gambler’s request, finding that the matter was not ripe for decision because it was still at the pleading stage, and noting that Fleet’s motion for judgment on the pleadings remained pending. Gambler appealed that order to this court. We quashed the appeal. Gambler v. Huyett, et al., 1727 Phila.1994, filed March 22, 1995, 442 Pa.Super. 684, 660 A.2d 660 (J. A08018/95, memorandum decision).

Thereafter, argument was held on Fleet’s motion for judgment on the pleadings. The Honorable Albert A. Stallone entered an order granting Fleet’s motion for judgment on the pleadings and dismissing Gambler’s writ of revival. Gambler appealed, and now raises the following claims:

1. Did the trial court erroneously grant appellee Fleet Mortgage Corporation’s motion for judgment on the pleadings since there was a disputed issue of material fact appearing on the pleadings?
2. Did the trial court err by granting appellee Fleet Mortgage Corporation’s motion for judgment on the pleadings since appellant Mildred Gambler was not notified of Fleet Mortgage Corporation’s sheriffs sale pursuant to Pa.R.C.P. 3129.1 and 3129.2, she possessed an interest in real property affected by the sheriffs sale, and she eventually possessed a lien that should have continued undischarged on the property due to the lack of notice?

Gambler’s claim in her appeal from the trial court’s order setting aside the sheriffs sale and ordering reissuance of the writ of execution and specifying notice of the sale to counsel for Gambler, is framed as follows:

Is the issuance of an order setting aside a sheriffs sale an improper remedy for Fleet Mortgage Corporation’s failure to notify appellant Mildred Gambler of the July 9, 1993 sheriffs sale affecting her interest in real property in accordance with Pa.R.C.P. 3129.1 and 3129.2?

In reviewing a trial court’s decision granting a motion for judgment on the pleadings, the appellate court’s scope of review is plenary; the appellate court will apply the same standard employed by the trial court, confining its consideration to the pleadings and relevant documents. Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 215-17, 514 A.2d 576, 578 (1986); Vogel v. Berkley, 354 Pa.Super. 291, 295-97, 511 A.2d 878, 880 (1986). The court must accept as true all well pleaded statements of fact, admissions, [834]*834and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. The court may grant judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise. Jones, supra; Vogel, supra.

We note initially that Gambler’s first issue on appeal is not appropriate on review of an order granting a motion for judgment on the pleadings. Claims regarding disputed issues of material fact are relevant to a summary judgment challenge. See Pa.R.C.P. 1035(b). See also Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). In reviewing a challenge to judgment on the pleadings, we accept the opposing party’s well pleaded facts. Thus, Gambler’s claim that the facts are disputed exceeds the objective of her argument.

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Bluebook (online)
679 A.2d 831, 451 Pa. Super. 351, 1996 Pa. Super. LEXIS 2513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gambler-v-huyett-pasuperct-1996.