Swift v. Milner

538 A.2d 28, 371 Pa. Super. 302, 1988 Pa. Super. LEXIS 285
CourtSuperior Court of Pennsylvania
DecidedFebruary 12, 1988
DocketNo. 1396
StatusPublished
Cited by19 cases

This text of 538 A.2d 28 (Swift v. Milner) 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
Swift v. Milner, 538 A.2d 28, 371 Pa. Super. 302, 1988 Pa. Super. LEXIS 285 (Pa. Ct. App. 1988).

Opinions

DEL SOLE, Judge:

Appellee filed an action in assumpsit against Appellant alleging that the parties were among several joint venturers who had entered into an oral agreement by which certain [306]*306property to be purchased at an impending tax sale would be owned equally by each member of the group. It was alleged in Appellee’s Complaint that the parties had agreed that the property could be purchased in one of the partner’s names; however, the joint venturers would still be equal owners. Appellee further contended that Appellant purchased the property in his own name and denied the remaining partners any use or interest therein. Thereafter, the instant breach of contract suit was brought against Appellant.

Preliminary motions were filed by Appellant, and were later denied by the trial court. Subsequently, Appellee filed a Motion for Judgment on the Pleadings. By its Order dated February 3, 1981, the trial court entered a partial judgment on the pleadings in Appellee’s favor but ordered a trial “limited to the question of the value of the real estate to determine the value of [Appellee’s] one-fifth interest.” (Order, 2/3/81, 3). The trial court’s disposition of the case was based on the fact that Appellant had failed to respond properly to the Complaint or file an opposing brief within ten days after service of Appellee’s brief pursuant to Rule 31(B) of the Lancaster Rules of Court. Rule 31 provides in part:

[a]ny respondent who fails to comply with this rule shall be deemed not to oppose the listed matter, and upon the expiration of such ten day period, the moving party may present the same to the court for the entry of an appropriate order.

In reviewing Appellant’s Answer to the Complaint, the trial court found that Appellant effectively admitted to all of Appellee’s allegations by virtue of the fact that each charge was answered with a general denial. See Pa.R.C.P. 1029(b), infra.

Appellant later filed a direct appeal with this Court from the Order. However, we held that the appeal was from an interlocutory order inasmuch as the trial on the issue of damages had yet to be conducted. Swift v. Milner, 296 Pa.Super. 463, 442 A.2d 1144 (1982). Following a trial on [307]*307the issue of the value of Appellee’s interest in the land, a judgment was entered in Appellee’s favor in the amount $18,100. This timely appeal follows.

In Argument I of his brief, Appellant contends that Rule 31 of the Lancaster Rules of Court is unconstitutional on its face. Likewise, in Argument II Appellant states that Rule 31 is unconstitutional as applied. However, in neither of these arguments has Appellant articulated whether or not the rule is in dereliction of the Pennsylvania or United States Constitutions, or both. Moreover, Appellant does not posit which provisions of either Constitution are offended by the rule. Appellant simply states that the rule is unconstitutional and unreasonable. We remind Appellant that it is not the function of this Court to become Appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, we shall not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982). See also In Re Estate of Smith, 492 Pa. 178, 181, 423 A.2d 331, 332 (1980); Pa.R.A.P. 2116.

Contained within Argument II of Appellant’s brief is the assertion that the partial judgment on the pleadings should not have been entered since Appellee failed to give Appellant the proper notice of his Motion for Entry of Judgment. Rule 31 of the Lancaster Rules of Court provides that notice must be sent to all parties, or their counsel, within five business days after a matter is listed for disposition on the pre-trial proceedings lists. However, we shall not consider this claim insofar as it was not set forth in the statement of questions involved. Geyer v. Steinbronn, 351 Pa.Super. 536, 558, 506 A.2d 901, 913 (1986). See Pa.R.A.P. 2116(a).

Appellant raises as his third argument that the partial judgment on the pleadings should not have been granted since the pleading defects in his Answer to Appellee’s Complaint, which precipitated Appellee’s Motion for [308]*308Judgment on the Pleadings, could have been easily remedied by amendment. We disagree.

Preliminarily, we must analyze the true effect of the trial court’s February 3, 1981 Order. Contrary to Appellant’s interpretation of that Order, the trial court did not grant the partial judgment on the pleadings solely on Appellant’s failure to comply with Rule 31. The trial court noted Appellant’s deviation from Rule 31 and commented that, pursuant to Rule 31’s language, Appellant was deemed not to have opposed Appellee’s motion. However, the trial court’s disposition of the case did not end at this juncture. Rather, the trial judge proceeded, as required, to conduct an independent evaluation of the pleadings. This review resulted in the correct determination that Appellant's Answer to the Complaint was insufficient to warrant further consideration of the case with respect to the issue of liability. In addition, the trial judge found that a trial on damages was necessary, given the Complaint’s insufficiency to support the alleged damages.

The determinant factor in the trial court’s decision to grant the partial judgment on the pleadings was the fact that Appellant did not respond to the Complaint’s allegations in the manner prescribed by Pa.R.C.P. 1029(b). Rule 1029(b) provides:

[ajverments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivision (c) of this rule, shall have the effect of an admission.

Instantly, paragraphs three through ten of Appellant’s Answer merely contain the single word “Denied”. We agree with the trial court’s conclusion that these general denials effectively manifested Appellant’s admission to the facts averred in paragraphs three through ten of Appellee’s Complaint.

We note that in determining the propriety of the trial court’s award of a judgment on the pleadings, we must accept as true all well-pleaded statements of fact of the [309]*309party against whom the motion is granted and consider against that party only those facts that are specifically admitted. The grant of a motion for judgment on the pleadings will be affirmed by an appellate court only when the moving party’s right to succeed is certain and the case is so free from doubt that a trial would clearly be a fruitless exercise. Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986). In the case at bar, paragraphs three through ten of the Complaint encompassed all of the allegations on which Appellee based his claim. By failing to comply with Rule 1029(b), the admission of all allegations and averments resulted in the absence of material issues of fact on the issue of liability.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wells Fargo Bank v. Steinour, A.
Superior Court of Pennsylvania, 2025
T. Washington v. The PA DOC
Commonwealth Court of Pennsylvania, 2025
Reverse Mortgage Fund. v. Russo, R.
Superior Court of Pennsylvania, 2020
Roy, T. v. Cerone, P.
Superior Court of Pennsylvania, 2020
Kennedy, T. v. McClarin Properties, LLC
Superior Court of Pennsylvania, 2019
Yanakos, C. v. UPMC, University of Pittsburgh
Superior Court of Pennsylvania, 2017
Bartow, M. v. Tri-Star Motors, Inc.
Superior Court of Pennsylvania, 2016
Dollar Bank v. Hawkins, C.
Superior Court of Pennsylvania, 2016
Stevens & Lee, P.C. v. Cresswell, T.
Superior Court of Pennsylvania, 2016
Jacobs Bros. d/b/a Kings Kids Camp v. Knoll, J.
Superior Court of Pennsylvania, 2016
Broderson, H. v. Galderma Lab
Superior Court of Pennsylvania, 2015
Marusco, D. v. Wilkerson, R.
Superior Court of Pennsylvania, 2015
LSF8 Master Participation Trust v. Tanana
37 Pa. D. & C.5th 414 (Lackawanna County Court of Common Pleas, 2014)
BK Ex Rel. SK v. Chambersburg Hosp.
834 A.2d 1178 (Superior Court of Pennsylvania, 2003)
B.K. ex rel. S.K. v. Chambersburg Hospital
834 A.2d 1178 (Superior Court of Pennsylvania, 2003)
Gwinn v. Empire State Chair Co.
48 Pa. D. & C.4th 176 (Lawrence County Court of Common Pleas, 2000)
Safeguard v. Standard Machine & Equipment Co.
34 Pa. D. & C.4th 1 (Fayette County Court, 1996)
Michener v. Montgomery County Tax Claim Bureau
671 A.2d 285 (Commonwealth Court of Pennsylvania, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
538 A.2d 28, 371 Pa. Super. 302, 1988 Pa. Super. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swift-v-milner-pasuperct-1988.