Koutroulelis, E. v. Chelentis, M.

• Court: Superior Court of Pennsylvania
• Decided: July 25, 2019
• Docket: 2054 MDA 2018
• Status: Unpublished

Opinion

J-S25034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EVANGELINE KOUTROULELIS, : IN THE SUPERIOR COURT OF VASILIA HRONAS AND : PENNSYLVANIA CHRISTOPHER M. CHARYSOVERGIA : : : v. : : : MICHAEL J. CHELENTIS A/K/A : MICHAEL J. CHENLENTIS, : : Appellant : No. 2054 MDA 2018

Appeal from the Order Entered November 26, 2018 in the Court of Common Pleas of Lycoming County Civil Division at No(s): 17-0883

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: JULY 25, 2019

In this quiet title action, Michael J. Chelentis (“Chelentis”), a/k/a Michael

J. Chenlentis, appeals from the Order granting the Motion for judgment on the

pleadings filed by Evangeline Koutroulelis, Vasilia Hronas, and Christopher M.

Charysovergia (collectively “Plaintiffs”). We affirm.

In its Opinion and Order granting Plaintiffs’ Motion for judgment on the

pleadings, the trial court set forth the relevant facts and procedural history,

which we incorporate as though fully stated herein. See Trial Court Opinion

and Order, 11/26/18, at 1-5.

At the close of its Opinion and Order, the trial court found that Chelentis

had failed to properly plead the mental incapacity of Hariklia Hiras (hereinafter

“Mrs. Hiras”), Chelentis’s grandmother, to execute a legally enforceable power J-S25034-19

of attorney (“POA”) agreement in September 1991, and thus entry of

judgment on the pleadings is proper:

[Chelentis] has failed to properly plead the incapacity of M[r]s. Hiras. Pennsylvania Rule of Civil Procedure 1030 requires that affirmative defenses be pled in a responsive pleading under the heading of “New Matter.” Pa.R.C.P. 1030(a) [(providing, in relevant part, that “all affirmative defenses … shall be pleaded in a responsive pleading under the heading of ‘New Matter.’ A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.” (emphasis added))1]. If the affirmative defense [(with exceptions not applicable here)] is not raised as New Matter, then it is waived. Pa.R.C.P. 1032[(a)]; see also Iorfida v. Mary Robert Realty Co., 539 A.2d 383, 386 (Pa. Super. 1988)[; Bender’s Floor Covering Co. v. Gardner, 564 A.2d 518, 521 (Pa. Super. 1989) (stating that “affirmative defenses are compulsory and therefore must be timely pleaded or they are forever lost.” (emphasis in original))]. While Rule 1030 does not enumerate incapacity as an affirmative defense, the list is not exhaustive – new matter has been described as “anything other than a denial, setoff, or counterclaim.” Iorfida, 539 A.2d at 386. Here, [Chelentis] included the allegation of incapacity with a few denials in his Answer.[2] [Chelentis] failed to raise any affirmative defenses under the heading of “New Matter,” or allege sufficient facts to support his claim that M[r]s. Hiras’[s] [alleged] dementia resulted in her incapacity.[3] Hence, Plaintiffs were not allowed the ____________________________________________

1 Additionally, this Court has stated that “[t]he purpose of new matter pleading is to compel a plaintiff to answer the defendant’s affirmative defenses during the pleading stage to avoid an unnecessary trial.” Enoch v. Food Fair Stores, Inc., 331 A.2d 912, 914 (Pa. Super. 1974) (citation and quotation omitted).

2 Particularly, Chelentis alleged that Mrs. Hiras was suffering from dementia or incapacity at the time that she executed the POA to her son, George M. Hiras (“George”), in September 1991.

3In this regard, we note that affirmative defenses must be read in pari materia with Pa.R.C.P. 1019(a), and “[a]verments in a new matter must be as detailed and specific as the averments in a complaint.” 3 Goodrich Amram 2d § 1030(a)(2).

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opportunity to respond properly through the pleading process. If [Chelentis] had pled sufficient information as New Matter, then the [] [M]otion [for judgment on the pleadings] would likely be premature. However, as there is no properly[-]pled dispute regarding the recording priority in this matter, [i.e., concerning the recording order of the respective deeds to the real property at issue in this litigation, 280 Woodland Avenue, Williamsport, Pennsylvania (“the Property”),] Plaintiffs are entitled to judgment on the pleadings.

Trial Court Opinion and Order, 11/26/18, at 7-8 (footnotes and italicized

emphasis added; bold emphasis in original; footnote citations moved to body).

Chelentis filed a timely Notice of Appeal, followed by a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.

Chelentis now presents the following issues for our review:

I. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO ACCEPT AS TRUE THE FACTS THAT MRS. [] HIRAS WAS SUFFERING FROM DEMENTIA OR INCAPACITY AT THE TIME THAT SHE SIGNED THE [POA] GRANTING GEORGE … THE RIGHT TO CONVEY THE PROPERTY FROM MRS. HIRAS TO HIMSELF AND HIS BROTHERS[?]

II. WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT [CHELENTIS] NEEDED TO PLEAD THE ALLEGATION OF MRS. HIRAS’S INCAPACITY AS AN AFFIRMATIVE DEFENSE UNDER NEW MATTER IN ORDER TO ACCEPT THAT FACTUAL ALLEGATION AS TRUE AND WELL[-]PLE[]D?

III. WHETHER THE TRIAL COURT ERRED WHEN IT FOUND THAT A FACTUAL ALLEGATION ALLEGING INCAPACITY MUST BE PLE[]D AS AN AFFIRMATIVE DEFENSE UNDER PA.R.C.P. 1030 IN ORDER TO BE ACCEPTED AS TRUE AND WELL[-] PLE[]D[?]

IV. WHETHER THE TRIAL COURT ERRED IN GRANTING [] PLAINTIFF[S’] MOTION FOR JUDGMENT ON THE PLEADINGS[?]

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Brief for Appellant at 5. We will address these issues together due to their

relatedness.

The standard we apply when reviewing the grant of a motion for

judgment on the pleadings is as follows:

Entry of judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034, which provides that “after the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law.

Appellate review of an order granting a motion for judgment on the pleadings is plenary. The appellate court will apply the same standard employed by the trial court. A trial court must confine its consideration to the pleadings and relevant documents. The court must accept as true all well[-]pleaded statements of fact, admissions, and 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.

We will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise.

Kote v. Bank of N.Y. Mellon, 169 A.3d 1103, 1107 (Pa. Super. 2017)

(citation omitted).

Here, Chelentis argues that the trial court incorrectly failed to accept as

true the well-pled averment in his Answer concerning Mrs. Hiras’s mental

incapacity, which was sufficient to have created a disputed issue of material

fact, so as to make judgment on the pleadings improper. Brief for Appellant

at 11; see also id. at 12 (asserting that “[t]he May 20, 1993 deed [executed

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by Mrs. Hiras to George and his brothers] would be void if it were found by

the judge or jury that … [Mrs.] Hiras did not have capacity at the time that

she signed the [POA to George] in September 1991.”). Chelentis further

contends that the trial court erred in determining that he needed to plead the

issue of Mrs. Hiras’s mental incapacity, a purported affirmative defense under

Pa.R.C.P. 1030, in new matter, or the issue is waived. See id. at 12-15.

It is undisputed that Rule 1030 does not specifically enumerate

incapacity as an affirmative defense; however, the Rule clearly indicates that

the enumerated list of defenses is not exhaustive. See Pa.R.C.P. 1030(a).

“An affirmative defense is distinguished from a denial of facts which make up

the plaintiff’s cause of action[,] in that a defense will require the averment of

facts extrinsic to the plaintiff’s claim for relief.” Falcione v. Cornell Sch.

Dist., 557 A.2d 425, 428 (Pa. Super. 1989) (citing Lewis v. Spitler, 403 A.2d

994 (Pa. Super. 1979)).

In this case, Chelentis’s averment of Mrs. Hiras’s alleged mental

incapacity, in September 1991, is more than a mere denial of fact, and

required him to prove facts extrinsic to Plaintiffs’ quiet title cause of action,

which are unrelated to Mrs. Hiras’s capacity to contract. See Falcione,

supra. In light of the recording order of the respective deeds to the Property

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(see Trial Court Opinion and Order, 11/27/18, at 2, 5, and 6),4 Plaintiffs’ quiet

title cause of action was complete without reference to Chelentis’s averments

of Mrs. Hiras’s incapacity. See Lewis, 403 A.2d at 998 (where defendant in

a contract action introduced at trial – but failed to allege same in his pleadings

– evidence of his oral agreement with plaintiff as well as a down payment

made by defendant, holding that “plaintiff’s cause of action was complete

without reference to [defendant’s oral] agreement to purchase from the estate

and his $1,000 down payment. Those averments tend to avoid, rather than

destroy, plaintiff’s cause of action. As such, those averments constituted an

affirmative defense[,] which was waived by the defendant [] for failure to

plead it as new matter.”). Therefore, we conclude that the trial court did not

err in determining that the allegation of Mrs. Hiras’s incapacity constituted an

affirmative defense, which Chelentis waived for his failure to “properly plead”

it as new matter. See Pa.R.C.P. 1030(a) and 1032(a); see also, e.g.,

Falcione, 557 A.2d at 428 (rescission, though not specifically enumerated in

Pa.R.C.P. 1030, is an affirmative defense that is waived if not pled in new

matter); Iorfida, 539 A.2d at 386-87 (abandonment, though not

enumerated, is an affirmative defense in an easement action); Lezzer Cash

____________________________________________

4 Therein, the trial court noted that (1) the deed to the Property that Mrs. Hiras gave to George and his brothers was recorded on May 25, 1993, and George’s POA was recorded on the same day; (2) Chelentis’s mother, acting as purported POA for Mrs. Hiras, recorded her deed to the Property on June 14, 1993, twenty days after the recording of the deed to George and his brothers; and (3) Pennsylvania is a “race-notice” jurisdiction.

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& Carry, Inc. v. Aetna Ins. Co., 537 A.2d 857, 859 n.2 (Pa. Super. 1988)

(payment, though not enumerated, is an affirmative defense to an action

against surety to recover costs of materials supplied for a housing construction

project); accord Hous. Auth. of the City of Pittsburgh v. Green, 552 A.2d

748, 749, 750 (Pa. Cmwlth. 1989) (landlord’s failure to comply with federal

regulations, though not enumerated, was an affirmative defense to an

ejectment action). To have permitted Chelentis to proceed to trial on his

improperly-pled, bald allegation of Mrs. Hiras’s incapacity in 19915 would have

been a fruitless exercise. See Kote, supra.

Accordingly, we affirm the trial court’s Order granting Plaintiffs’ Motion

for judgment on the pleadings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/25/2019

5 In this regard, we note Plaintiffs’ emphasizing the fact that Chelentis alleged Mrs. Hiras’s incapacity, for the first time in his Answer, over 26 years after Mrs. Hiras executed the September 1991 POA to George. See Brief for Plaintiffs at 11; see also id. at 17 (quoting Williams v. McCarroll, 97 A.2d 14, 19 (Pa. 1953), and stating that “where mental capacity is at issue, the real question is the condition … at the very time [s]he executed the [POA].”).

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OPINION AND ORDER

Pre ently before the Court is Plaintiffs Evangeline Koutroulelis ("Plaintiff

Koutrouleli "), Vasilia Hronas ("Plaintiff Hronas"), and Christopher Charysovergia's

arysovergia") (collectively "Plaintiffs") Motion for Judgment on the Pleadings

("Plaintiffs' otion"). After briefing was completed, a hearing was held on November 2,

ourt reserved decision. This is the Court's Opinion and Order on Plaintiffs'

Motion.

resent dispute concerns title to real property located at 280 Woodland

Avenue, liamsport, PA 17701 (the "Property").1 On June 12, 2017, Plaintiffs filed a

gainst Defendant Micheal Chelentis ("Defendant'') seeking a declaration tha

sole and rightful owners of the Property, and an order directing the

I I 1 Plaintiffs Cof plaint, ,rs. Plaintiffs' supportive exhibits are attached to the Complain� however, the orde appears to ha e been disturbed. EXHIBIT . Page 2A I A. ounty Office of Recorder of Deeds to invalidate and nullify Defendant's May

1 o, 1993 ed and May 5, 1995 deed. 2 Plaintiffs aver the following in their Complaint:

1) On September 4, 1991, George M. Hiras as Power of Attorney ("POA'')

for Hariklia Hiras, also known as Helen Hiras ("Ms. Hiras"); now

deceased, is appointed. 3

2) Unbeknownst to Plaintiff Koutroulelis, by Deed dated May 10, 1993,

Mary Chelentis (hereinafter "Ms. Chelentis"), alleging to be POA for Ms.

Hiras, deeded the property to herself. 4

3) By deed dated May 20, 1993, Ms. Hiras conveys title of the Property to

Plaintiff Koutroulelis' brothers: Michael Hiras, Harry Hiras, and George

Hiras ("the brothers").5

4) On May 25, 1993, tfle brothers' May 20, 1993 Deed is recorded.6

5) On June 14, 1993, Ms. Chelentis' May 10, 1993 Deed is recorded.7

6) On November 23, 1993, Ms. Chelentis' POA is recorded.8

7) By deed dated May 5, 1995, Ms. Chelentis conveys her interest to her

son, Defendant.9 This deed was recorded the same day."

2ld. . 3 Id., ,I9. 4 Id., ffl115-16 Ex. H (5/10/93 deed). Plaintiffs aver that Ms. Chelentis' Power of Attorney ("POA•) was dated May 1 1993, but was not recorded until November 1993. Id., fflf16, 18. Plaintiffs further allege that her POA s called into question by statements in George M. Hiras' POA, which explained that Ms. Hiras' demen la had advanced to such a stage in May of 1993 that "she would not have understood the document or anything that she would have been asked to sign in that time frame: Id., 1J17, Ex. r. 5 Id., ,rs, Ex.�- This deed was executed by George M. Hiras as POA; the POA was also recorded on May 20, 1993. Id., 1J9. · 6 Id., ,TS. 1 1.

7 /d., 1115. 8 9 Id., 1J16. I 10 /d. Plainti � aver that the actual conveyance from Ms. Chelentis to the Defendant did not occur until Id., ,I19, Ex F. sometime aft r March 13, 1996. Id., ,r20, Ex. C. 2 I 8) By deed dated February 12, 1996, Plaintiff Koutroulelis was conveyed

title to the Property.11 This deed was conveyed to her by a settlement

agreement whereby the settling parties agreed that shewould receive

title to the Property in exchange for the care of her mother who had

originally owned the Property.12 In accordance with the settlement

agreement, Plaintiff Koutroulelis executed a quit claim deed which

noted that the Property would be returned to her brothers in the event

she did not honor her obligations under the agreement.13

I 9) On March 13, 1996, Plaintiff Koutroulelis' February 12, 1996 Deed is

I recorded," I l 10) By deed dated March 11, 1998, Plaintiffs Hronas and Charysovergia,

as well as lgnatios John Koutroulelis, were conveyed title to the

Property as joint tenants with rights of survivorship subject to a life I estate in Plaintiff Koutroulelis; the deed was recorded the same day.15 Ko�roulelis Plaintiff claims that she has, with the consent of the other Plaintiffs, been l -� attempting �o sell her interest in the Property, but the cloud on her title created by the I deeds of M+. Chelentis is preventing such a sale.16 Indeed, she claims that she has i .

already lostia "potential sale" because of this cloud." Plaintiffs claim that because I . . PennsylvaniaI is a rac�-notice jurisdiction, the recording of George M. Hiras' POA on iI i Id., 1f7, Ex. �- 11 · 12 Id., 1J11, Ex.]'E . · 13 · /d., ,r12 •. Ex.[B. Plaintiffs allege that the prior quit claim deed was returned to Plaintiff Koutroulelis marked void. fd., Ex. G. · 14 Plaintiffs Compliant, 1f7, Ex. C. 15 ki., 116, Ex. ,4. Plaintiffs Hronas and Charysovergia's rights under. the deed are based on the passing of linatious John. Koutroulelis. Id., ,I6. 1 Id., ffll21-22j 17 Id. ,I23. I

I l May 20, 1�93 and the brothers' recording of their May 20,· 1993 deed on May 25, 1993 . I

control. T�erefore, the chain of title resulting from the May 20, 1993 deed favor

Plaintiffs' dlaims in the present case. 18

On �ovember 3, 2017, Defendant filed an Answer denying Plaintiffs' substantive

allegation�.19 In his response to paragraph nine (9), Defendant denies Plaintiffs' claims

regarding �he May 20, 1993 deed.20 Defendant asserts that he denied the allegations

because G,eorge Hiras' POA was invalid due to it not possessing "sufficient language to i ' empower ft1r. George Hiras to make a gift of real estate to a limited class of donees

such as hi�self and his two brothers.21 In the same response, Defendant also claims I

. that Ms. Hlras was "suffering from dementia : as early as late 1980s; thereby calling into

question a�y execution of a [POA] in 1991."22 In paragraph seventeen (17) of his

Answer, D$fendant admits that Ms. Chelentis' POA was signed on May 10, 1993,

notarized on May 18, 1993, and recorded on November 23, 1993.23 However, in the I . . :

same paragraph, he denies Plaintiffs' remaining assertions, claiming that Ms. Kiras was

suffering from dementia at that time.24 In his response to paragraph twenty-four (24) in I

Plaintiffs' qomplaint, Defendant also claims that George Hiras' POA was invalid

"because t�e language in the [POA] from Hariklia M. Harris a/kla Helen M. Hiras to

George M. /Hiars on September 4, 1991 did not contain sufficiently specific language to

show Ms. Helen M. Hiras' intent to empower Goerge M. Hiras to make a gift of real I

: � 18 Alternatively, Plaintiff Koutroulelis alleges she has resided at the Property continuously since February 12, 1993, pay;ing all costs associated with upkeep and taxes, and, thus, has title by adverse possession. Id., fflT 14, 28� 19 See genera/ly Defendant's Answer. 20 Defendant'$ Answer, 'IJ9. 21 Id. ; 22 Id. ' 23 Id., 1[17. 24 Id.

4 estate to lirr1ited class of donees, namely George M. Hira_s, Michael M. Hiras and Harry '

M. Hiras."25 Defendant also reiterated in response to paragraph twenty-four (24) that 26 Ms. Hiras' granting of the POA was invalid due to her "suffering from dementia. "

Defendantalso raised the claim of Ms. Hiras' alleged dementia in his response to

paragraph thirty (30) in Plaintiffs' Complaint. Defendant did not raise any affirmative

defenses under the heading of "New Matter."

On July 3, 2018, Plaintiffs filed the instant Motion for Judgment on the Pleadings, I arguing that judgment on the pleadings is appropriate as the chain of title resulting from

the May 2q, 1993 Deed controls because it was recorded first. 27 Likewise, Ms.

Chelentis' �ay 10, 1993 Deed is invalid because she failed to record the deed until

June 14, 1�93, and her POA was not recorded until November 23, 1993.28_ Therefore,

Plaintiffs argue that they are entitled to all rights, title, and interest in the Property. 29

On October 26·, 2018, Defendant filed his Reply to Plaintiffs' Motion for Judgment

on the Plea'dings, as well as his Brief In Support. Defendant disputes that entry of 30 judgment oh the pleadings is proper. Defendant argues that such action is premature

because he: properly pied in his Answer "on several occasions" that Ms. Hiras lacked

the capacity to execute a power of attorney in 1991.31

25 Id., 1124. 26 Id. 27 Plaintiffs' Motion for Judgment on the Pleadings, fflJS-12. On October 19, 2018, Plaintiffs filed their Brief in Support of their motion. · 28 Id., fflf14-15. . 29 Id., 1J33. 30 Defendant's Brief in Support of Reply to Plaintiffs' Motion for Judgment on the Pleadings at 3. (Oct 26, 2018). 31 Id. at 3-4. Defendant relies on Wilhelm v. Wilhelm to support this proposition. Id. at 4 (citing Wilhelm v. Wilhelm, 657 A.2d 34 (Pa. Super. Cl 1995)). Plaintiffs filed a Reply to Defendant's Brief, arguing that Wilhelm is notapplicable, Plaintiffs' Reply to Defendant's Brief in Opposition to Plaintiffs' Motion for Judgment on the Pleadings at 1-4 (Nov. 1, 2018). Wilhelm is not analogous as the procedural posture involved a peti�on for a preliminary injunction and a fact-finding hearing by the trial court See Wilhel� v. 5 Discussion

Pennsylvania is a "race-notice" jurisdiction.32 Pennsylvania law provides:

All deeds, conveyances, contracts, and other instruments of writing. wherein it shall be the intention of the parties executing the same to grant, bargain, sell, and convey any lands, tenements, or hereditaments situate in this Commonwealth, upon being acknowledged by the parties executing the same or proved in the manner provided by the laws of this Commonwealth, shall be recorded in the office for the recording of deeds in the county where such lands, tenements, and hereditaments are situate. Every such deed, conveyance, contract, or other instrument of writing which shall not be acknowledged or proved and recorded, as aforesaid, shall be adjudged fraudulent and void as to any subsequent bona fide purchaser or mortgagee or holder of any judgment, duly entered in the prothonotary's office of the county in which the lands, tenements, or hereditaments are situate, without actual or constructive notice unless such deed, conveyance, contract, or instrument of writing shall be recorded, as aforesaid, before the recording of the deed or conveyance or the entry of the judgment under which such subsequent purchaser, mortgagee, or fudgment creditor shall claim. Nothing contained in this act shall be construed to repeal or modify any law providing for the lien of purchase money mortgages.33 .

Pennsylvania law further provides,

The .legal effect of the recording of such agreements shall be to give . constructive notice to subsequent purchasers, mortgagees, and/or · judgment creditors of the parties to said agreements of the fact of the granting of such rights or privileges and/or of the execution of said releases, and .the rights of the subsequent purchasers, mortgagees, and/or judgment creditors of the parties to said agreements shall be limited thereby with the same force and effect as if said subsequent purchasers, mortgagees, and/or judgment creditors had actually joined in the execution of the agreement or agreements aforesaid. 34

Regarding the standard of review for a motion for judgment on the pleadings, the

Pennsylvania Superior Court has stated:

Wilhelm, 657 A.2d 34, 36 (Pa. Super. Ct 1995). The current adjudication does not allow for such fact finding by thisCourt, 32 US Bank Nari Ass'n v. PNC Bank N.A., 2015 WL 5771823, at "3 (E.D. Pa. Oct. 2, 2015). 33 21 P.S. § 351; accord Poffenbergerv. Goldstein, 776 A.2d 1037, 1042 (Pa. Commw. Ct. 2001): 34 21 P.S. § 357; accord In re Best, 417 B.R. 259, 282 (Bankr. E.D. Pa. 2009). 6: Pennsylvania Rule of Civil Procedure 1034{a) states that "[a]fter the· relevant pleadings ate closed, ·but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings." "The motion for judgment on the pleadings is ineffect a demurrer and, in considering the motion, the court should be guided by the same principles as would be applicable if it were disposing of a preliminary objection in the nature of a demurrer." Judgment on the pleadings may be entered where there are no disputed issues of fact and the rnovinq-party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must contine its consideration to the pleadings and relevant documents. The court must accept as true all well pleaded statements of fact, admissions, and: any documents properly attached to the pleadings presented by the party against Whom the motion is filed. All averments of fact properly pleaded in the adverse party's pleadings, and every reasonable inference that:the Court can draw therefrom, must be taken as true, or as . admitted, unless their falsity is apparent from the record. "Averments of fact which are material and relevant are accepted as true even though den,ed."35 .

Based on the current procedural posture, the Court finds that Defendant has

failed to properly plead the incapacity of Ms. Hiras. Pennsylvania Rule of Civil

Procedure _1030 requires that affirmative defenses be pied in a responsive

pleading under the heading of "New Matter."36 If ttie affirmative defense is not

raised as New Matter, then it is waived.37 While Rule 1030 does not enumerate

incapacity as an affirmative defense, the list is not exhaustive-new matter has

been described as "anything other than a denial, setoff, or counterclaim. n38 Here,

Defendant included the allegation of incapacity with a few denials in his Answer.

Defendant failed to raise any affirmative defenses under the heading of "New

Matter," or allege sufficient facts to support his .claim that Ms. Hiras' dementia

35 Pocono Summit Realty, LLC v. Ahmad Amer, LLC, 52 A.3d 261, 267 (Pa. Super. Ct 2012) (internal citations omitted). 36 Pa.R.C.P. No. 1030(a). 37 Pa.R.C.P. No. 1032; see also lorfida v. Mary Robert Realty Co., 539 A.2d 383, 386 (Pa. Super. Ct. 1988). 38 lorfida, 539· A.2d at 386. resulted in her incapacity. Hence, Plaintiffs were not allowed the opportunity to the pleading process. If Defendant had pied sufficient respond properly through

information as New Matter, then the current motion would likely be premature.

However, as there is no properly pied dispute regarding the recording priority in

this matter, Plaintiffs are entitled to judgment on the pleadings. Therefore,

Plaintiffs' Motion is GRANTED.

IT IS 50 ORDERED this 26th day of November 2018.

BY THE COURT,

cc: _J. Michael Wiley, Esq. 835 West Fourth Street Williamsport, PA 17701 Gregory A.. Stapp, Esq. 153 West Fourth Street, Ste. 6 Williamsport, PA 17701 Gary Weber, Esq. (Lycoming Reporter)