J-A08026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THOMAS C. ROY                             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 PETER CERONE AND PETERBUILT               :
 CONSTRUCTION, LLC                         :
                                           :   No. 2029 EDA 2019
                    Appellants             :


              Appeal from the Judgment Entered April 17, 2019,
            in the Court of Common Pleas of Philadelphia County,
               Civil Division at No(s): 03406 April Term, 2018.


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.:                         FILED AUGUST 11, 2020

      Defendants        Peter   Cerone   and   Peterbuilt   Construction,   LLC,

(“Contractors”) appeal from the judgment entered in favor of the plaintiff

Thomas C. Roy on Roy’s motion for judgment on the pleadings. Upon review,

we reverse and remand.

      The trial court summarized the relevant facts and procedural history of

this case as follows:

      This action commenced on April 24, 2018, when plaintiff Thomas
      C. Roy [“Roy”]), filed a complaint against defendants Peter Cerone
      and Peterbuilt Construction, LLC, ["Contractors"]. The complaint
      specifically alleged that the [Contractors] had agreed to perform
      renovation work upon an investment property owned by [Roy],
      had received from [Roy] Plaintiff an advance payment of
      $88,252.00 toward a contract amount of [$]99,000.00, and had
      reneged on their obligations without completing the work or
      offering an explanation. [Roy’s] complaint asserted against the
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     [Contractors]   two   claims:    breach-of-contract   and    unjust
     enrichment.

     The [Contractors] failed to answer [Roy’s] complaint; therefore,
     judgment by default was entered against them on July 9, 2018.
     On July 18, 2018, [Contractors] timely filed a petition to open the
     default judgment, and attached thereto a Proposed Answer to
     [Roy’s] complaint. On December 4, 2018, this Court opened the
     default judgment and instructed the [Contractors] to file their
     Answer to [Roy’s] complaint within ten days. This [c]ourt opened
     the judgment because the [Contractors] had attached to their
     Proposed Answer a verification subject to the penalties of 18 Pa.
     C.S.A. § 4904 relating to unsworn falsification to authorities. This
     Court thus reasoned that notwithstanding a lack of specific denials
     in the Proposed Answer, as required under Pa. R.C.P. 1029(b),
     [Contractors] nevertheless created the bases for the
     establishment of a "meritorious defense" by attaching a
     verification which exposed them to the penalties of 18 Pa.C.S.A.
     § 4904 relating to unsworn falsification to authorities.
     [Contractors] however filed no Answer to [Roy’s] Complaint,
     notwithstanding the [c]ourt's specific instruction that the Answer
     be timely filed.

     On December 21, 2018, [Roy] filed a motion for judgment on the
     pleadings. This motion argued that the [Contractors’] Proposed
     Answer to the Complaint had failed to specifically deny the
     allegations therein, in violation of Pa.R.C.P. 1029(b). The motion
     thus concluded that the general denials contained in the
     [Contractors’] Proposed Answer should be deemed as admissions,
     and judgment on the pleadings should be granted in favor of
     [Roy]. This [c]ourt granted the un-answered motion for judgment
     on the pleadings and entered judgment in favor of [Roy] because
     the [Contractors], by failing to file an Answer to [Roy’s]
     Complaint, had admitted the factual allegations therein. Stated
     another way, the [Contractors'] failure to deny the factual
     allegations in [Roy’s] Complaint cleared the dispute of any issues
     of material fact; therefore, the Court determined that [Roy]
     Plaintiff was entitled to judgment on the pleadings.

     On April 26, 2019, [Contractors] filed a motion for
     reconsideration; subsequently, on May 16, 2019, [Contractors
     timely] appealed the Order of this Court granting [Roy’s] motion
     for judgment on the pleadings. On July 22, 2019, this [c]ourt
     denied the motion for reconsideration as moot.


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Trial Court Opinion, 9/10/19, at 1-3 (citations and footnotes omitted). The

trial court and Contractors complied with Pennsylvania Rule of Appellate

Procedure 1925.

      On appeal, Contractors raise the following two issues:

      A. Whether the [trial court] erred in granting judgment on the
      pleadings when the pleadings and the documents attached thereto
      create material issues of fact and trial would not be a fruitless
      exercise.

      B. Whether the [trial court] erred in a breach of construction
      contract action by entering judgment on the pleadings against
      [Contractors] in the full amount paid to [them] when the
      complaint did not contain sufficient facts to support a judgment in
      that amount without an assessment of damages?

Contractor’s Brief at 3.

      Preliminarily, we note that our scope and standard of review regarding

judgment on the pleadings are well-settled:

         As our Supreme Court has explained, appellate review of a
         trial court's decision to grant or deny judgment on the
         pleadings is limited to determining whether the trial court
         committed an error of law or whether there were facts
         presented which warrant a jury trial. In conducting this
         review, we look only to the pleadings and any documents
         properly attached thereto. [We must accept as true all well
         pleaded statements of fact of the party against whom the
         motion is granted and consider against him only those facts
         that he specifically admits.] Judgment on the pleadings is
         proper only where the pleadings evidence that there are no
         material facts in dispute . . . . 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.




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John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963, 967 (Pa.

Super. 2007) (quotation marks and citations omitted).

       Contractors claim that the trial court erred in entering judgment on the

pleadings. Specifically, they claim that material issues of fact regarding their

liability existed, as did issues regarding Roy’s damages. Thus, according to

Contractors, the entry of judgment in the amount of $88,252 was improper. 1

Contractor’s Brief at 9-13.

       The trial court explained that it granted judgment on the pleadings

against Contractors because they failed to file a responsive pleading to Roy’s

complaint after the court opened the default judgment.              As a result,

Contractors admitted the factual allegations in Roy’s complaint. Trial Court

Opinion, 9/10/19, at 3.        The trial court reasoned that, by failing to file a

responsive pleading, Contractors admitted all of the facts necessary to

establish Roy’s claims against them. Consequently, with no material facts in

dispute, judgment on the pleadings was appropriate. Id. We disagree. 2

____________________________________________


1 Contractors also argue that the complaint did not have a verification attached
to it, and thus there was no factual basis upon which the court could enter
judgment. Brief at 10. Although they are correct that generally a judgment
should not be entered based upon an unverified complaint, they failed to raise
this issue before the trial court by preliminary objection. Technical defects in
an opponent’s pleading, such as a challenge to the validity of a verification,
i.e., failure to conform to law or rule of court, should be raised by filing
preliminary objections to the complaint. Pa.R.C.P. 1028. Failure to do so
results in waiver. Pa.R.C.P. 1032(a).
2 The trial court subsequently opined that it should not have opened the
default judgment based upon the proposed answer which contained only



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        In reaching its decision, the trial court relied upon Landis v. City of

Philadelphia, 369 A.2d 746 (Pa. Super. 1976), and Noel v. Puckett, 235

A.2d 380 (Pa. Super. 1967). Trial Court Opinion, 9/10/19 at 3 fn.3. Both of

these cases were based upon former Rule of Civil Procedure 1045, which

applied to trespass actions.3 Pa.R.C.P. 1045, rescinded effective July 1, 1984;

see Pa.R.C.P. 1029 cmt. Generally speaking, prior to 1984, a defendant was

not required to file a responsive pleading in a trespass action. See Pa.R.C.P
____________________________________________


general denials. Trial court Opinion, 10/11/19, at 2-3. However, there was
no appeal from this decision.

3   This rule provided:

        (a) A party who fails to file a responsive pleading shall be deemed
        to admit all averments relating to the identity of the person by
        whom a material act was committed, the agency or employment
        of such person or the ownership, possession or control of the
        property or instrumentality involved. All other averments shall be
        deemed to be denied.

        (b) All affirmative defenses, including but not limited to those
        enumerated in Rule 1030, and the defenses of consent, qualified
        privilege, fair comment, truth and justification, and, unless
        previously raised by demurrer and sustained, the defenses of
        statute of limitations and statute of frauds shall be pleaded under
        the heading “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. The defenses of contributory
        negligence and assumption of risk need not be pleaded. A plaintiff
        who fails to file a reply to averments of the defendant's new
        matter shall be deemed to admit all such averments other than
        averments relating to contributory negligence or assumption of
        risk.

Mackey v. Adamski, 429 A.2d 28, 29 (Pa. Super. 1981) (quoting Pa.R.C.P.
1045, rescinded effective July 1, 1984), overruled by, LeFlar v. Gulf Creek
Indus. Park No. 2, 515 A.2d 875 (Pa. 1986).


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1029 cmt.; Fleck v. Hugh, 361 A.2d 410 (Pa. Super. 1976). Under former

Rule 1045(a), a party in a trespass action was required only to “file a

responsive pleading to averments relating to the identity of the person by

whom a material act was committed, the agency or employment of such

person or the ownership, possession or control of the property or

instrumentality involved. . . .” Failure to do so resulted in those averments

being deemed admitted. See Pa.R.C.P. 1029 cmt. Additionally, under Rule

1045(b), a plaintiff who failed to file a reply to the averments of a defendant’s

new matter were deemed to admit all such averments of fact.            Pa.R.C.P.

1045(b), rescinded effective July 1, 1984.

      Both Noel and Landis were trespass actions, and as such, the

provisions of Pa.R.C.P. 1045 applied. In Noel, the allegations in the complaint

pertained to identity, agency, employment, ownership, possession or control,

which were addressed by Pa.R.C.P. 1045(a), and consequently, were deemed

admitted.   In Landis, the plaintiff failed to answer the City’s new matter,

which under Pa.R.C.P. 1045(b) resulted in plaintiff’s admission of the factual

averment that he had not given the requisite six-month notice to the City.

Here, the trial court’s reliance on those cases was misplaced. Those cases did

not create a general rule that where a party fails to file a responsive pleading,

any factual averments in a complaint are admitted. Instead, such a rule only

applied to trespass cases covered by former Rule 1045.

      Critically, in 1984 the Pennsylvania Supreme Court rescinded Rule 1045,

and consolidated it with Pa.R.C.P. 1029. Rule 1029(e) similarly requires a

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party in an action seeking monetary relief for bodily injury, death or property

damage to specifically deny those types of averments, otherwise they will be

admitted. Pa.R.C.P. 1029(e). However, because the instant case involves a

contract, and not a claim for bodily injury, death or property damage, Rule

1029(e) does not apply. We, therefore, conclude that the trial court erred

when it entered judgment on the pleadings for the reason it stated.

        Nonetheless, Roy argues that the trial court properly entered judgment

in his favor on other grounds. Specifically, he claims that because Contractors

generally denied the allegations set forth in Roy’s complaint, in the proposed

answer they attached to their petition to open the default judgment, those

general denials became admissions under Pa.R.C.P. 1029(b).           Thus, Roy

maintains that Contractors admitted all relevant factual averments to

establish his claims for breach of contract and unjust enrichment, and

judgment on the pleadings was proper. Roy’s Brief at 2-4.

        Pennsylvania Rule of Civil Procedure 1029 provides, in relevant part:

        Averments 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 subdivisions (c) and (e) of this rule, shall have the
        effect of an admission.

Pa.R.C.P. 1029(b) (emphasis added).4 It is well-settled that general denials

constitute admissions where specific denials are required. Bank of Am., N.A.

v. Gibson, 102 A.3d 462, 466–467 (Pa. Super. 2014).
____________________________________________


4   We note that neither subdivision (c) or (e) applies here.

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      Additionally, Rule 1034 provides that any party may move for judgment

on the pleadings “after the pleadings are closed, but within such time as not

to unreasonably delay trial. . . .” 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.” Consolidation Coal Co. v. White, 875 A.2d 318, 325–26

(Pa. Super. 2005).

      Combining these two rules, this Court has previously held that, where

the state of the record, at the close of the pleadings, is such that the

allegations of the complaint have been deemed admitted by the defendant’s

failure to specifically deny the allegations, and no effort is made to cure such

pleading defects, judgment on the pleadings may be entered.           Swift v.

Milner, 538 A.2d 28, 31 (Pa. Super. 1988).           In Swift, the defendant

answered pertinent paragraphs of the complaint with the single word,

“Denied.” This Court found that those general denials established admissions

to the facts averred in the complaint and judgment on the pleadings was

warranted. Swift, 538 A.2d at 31.

      Here, however, the Contractors never actually filed an answer to Roy’s

complaint.   They only attached a proposed answer to petition to open the

default judgment. Rule 1017 defines pleadings to include an answer to the




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complaint.     Pa.R.C.P. 1017(a)(1).       With no answer properly filed, the trial

court had no authority to grant judgment on the pleadings in this case.5

        We conclude that the entry of judgment in Roy’s favor was legal error.

Therefore, we are compelled to vacate the judgment and remand to the trial

court for further proceedings.6

        Judgment vacated and matter remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




____________________________________________


5 Instead, when a defendant fails to file an answer, the plaintiff’s remedy is to
move for a default judgment under Pa.R.C.P. 1037. See, e.g., Vogel v.
Berkley, 40 Pa. D. & C.3d 339 (Pa. Super. 1985) (citing Poliquin v. Heckler,
597 F.Supp. 1004, 1006 (D.Me. 1984) (“Since the pleadings are not closed
until after the defendant has filed an answer, the proper course for a plaintiff
in a case in which the defendant has failed to file a timely answer is a motion
for default under [Federal] Rule 55.”); General Motors Corp. v. Blevins,
144 F.Supp. 381, 389 (D.Colo. 1956). Thus, Roy could have filed another
motion for default judgment, but he could not file for judgment on the
pleadings. We express no opinion whether such a motion would be successful
on the facts of this case.
6   In light of our disposition, we need not address Contractors’ second issue.

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