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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOMENIC MARUSCO                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RICHARD WILKERSON, SHARON
WILKERSON, AND DOUGLAS STILLMAN

                         Appellants                 No. 2101 EDA 2014


              Appeal from the Judgment Entered June 25, 2014
              In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 14-002731


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED MARCH 18, 2015

      Richard   Wilkerson,    Sharon   Wilkerson,   and    Douglas   Stillman

(collectively “the Defendants”) appeal from the judgment in the amount of

$4,300.00, entered June 25, 2014, in the Delaware County Court of

Common Pleas.     Domenic Marusco initiated this landlord tenant action to

recover unpaid rents. Judgment was entered against the Defendants after

the trial court granted Marusco’s motion for judgment on the pleadings. On

appeal, the Defendants argue the trial court erred in granting judgment on

the pleadings because their answer and new matter established issues of

material fact regarding the habitability of the property in question. Based on

the following, we affirm.

      The facts underlying this appeal are gleaned from Marusco’s complaint.

Sometime during the 1990’s, Richard Wilkerson entered into a verbal
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agreement with Marusco to lease a property located at 26 Morton Avenue in

Linwood, Pennsylvania.         After Wilkerson took possession of the property,

Sharon Wilkerson and Douglas Stillman moved in, and the three made

timely, monthly rental payments to Marusco until the fall of 2013.            On

November 14, 2013, Marusco served the Defendants with written notice to

vacate the property no later than February 28, 2014.1 The notice stated the

Defendants were in arrears in the amount of $800.00 for past due rental

payments, and that they would still be responsible for the $750.00 monthly

rent due for December 2013, January 2014, and February 2014.                 See

Complaint, 4/9/2014, at Exhibit A, Notice, 11/14/2013.            The Defendants

failed to pay the arrears, or any rent due in the ensuing three months. The

Defendants remained at the property until they were removed on March 24,

2014. See Id. at ¶¶ 6-17.

       Marusco initiated a suit in the magisterial district court and received a

judgment on February 27, 2014.                 Thereafter, on March 26, 2014, the

Defendants filed an appeal to the Delaware County Court of Common Pleas.

Marusco subsequently filed a breach of contract complaint on April 9, 2014,

asserting the Defendants owed him $4,300.00 for past due rents and repair

costs. The Defendants filed an Answer and New Matter on April 28, 2014,


____________________________________________


1
 Marusco averred the written notice was provided “in accordance with the
agreement between the parties.” Complaint, 4/9/2014, at ¶ 12.




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which contained general denials to most of Marusco’s allegations, and

asserted that the property was “substantially damaged and made not

habitable” as a result of Hurricane Sandy in October of 2012. Answer and

New Matter, 4/28/2014, at ¶ 29. Marusco filed a Reply to New Matter on

April 29, 2014, followed by a Motion for Judgment on the Pleadings on May

16, 2014. Marusco argued the Defendants’ general denials to the allegations

in his complaint constituted admissions, and, accordingly, he was entitled to

judgment in the amount of $4,300.00. The Defendants failed to respond to

Marusco’s motion, and, on June 25, 2014, the trial court entered judgment

against the Defendants in the amount of $4,300.00.           Thereafter, the

Defendants filed a motion for reconsideration nunc pro tunc on July 14,

2014, followed by a timely appeal on July 21, 2014.2

       On appeal, the Defendants argue the trial court erred in granting

judgment on the pleadings when material facts were in dispute. Specifically,

they claim their answers to paragraphs 24 through 28 of the complaint were

not general denials, but rather specific denials asserting that (1) an

agreement between the parties did not exist and (2) the Defendants were

not obligated to pay rent while the property was not habitable. Further, the

Defendants assert their New Matter raised an affirmative defense, namely,


____________________________________________


2
  The trial court did not order the Defendants to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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“that conditions in the premises, the alleged leasehold, were in such

disrepair and damaged that they were rendered not habitable breaching

[Marusco’s] Covenant of Habitability and releasing [D]efendants from their

covenant to pay rent during the pendency of the breach.” Defendants’ Brief

at 6.    The Defendants also assert their failure to answer the motion for

judgment on the pleadings was the result of their ill-fated attempts to obtain

legal aid.

        A party may move for judgment on the pleadings “after the relevant

pleadings are closed, but within such time as not to unreasonably delay the

trial[.]” Pa.R.C.P. 1034(a). When considering the propriety of a trial court’s

ruling granting judgment on the pleadings, we are guided by the following:

        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. In
        determining if there is a dispute as to facts, the court must
        confine its consideration to the pleadings and relevant
        documents. The scope of review on an appeal from the grant of
        judgment on the pleadings is plenary. We must determine if the
        action of the court below was based on a clear error of law or
        whether there were facts disclosed by the pleadings which
        should properly go to the jury.

Miller v. Nelson, 768 A.2d 858, 860-861 (Pa. Super. 2001) (citation

omitted), appeal denied, 782 A.2d 547 (Pa. 2001).

        Here, the trial court granted judgment on the pleadings after

concluding that the Defendants admitted all the relevant factual averments

in Marusco’s complaint. See Trial Court Opinion, 9/24/2014, at 1-2.

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


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       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 supplied).3               Indeed, it is well-settled that

“[g]eneral denials constitute admissions where—like here—specific denials

are required.” Bank of Am., N.A. v. Gibson, 102 A.3d 462, 466-467 (Pa.

Super. 2014).

       In the     present case, the            Defendants admitted the    first eight

paragraphs of Marusco’s complaint, and provided the following answer to

paragraphs 9 through 22, and 28: “Denied. Strict proof of this assertion is

demanded at time of trial.” Answer and New Matter, 4/28/2014, at ¶¶ 1-22.

Such denials are deemed admissions pursuant to Rule 1029(b). As the trial

court opined:

       [T]he Defendants effectively admitted that [they] entered into a
       lease contract with [Marusco], [they] fell behind on rent in the
       amount of $3,800.00 and [Maruso] incurred costs of $500.00 to
       clean the property.[4] … Based upon the fact that the Defendants
____________________________________________


3
  Neither Subsections (c) nor (e) is not relevant to the facts in the present
case.    See Pa.R.C.P. 1029(c) (providing that party’s statement “after
reasonable investigation the party is without knowledge or information
sufficient to form a belief as to the truth of an averment” has the effect of a
denial); (e) (relating to actions seeking “monetary relief for bodily injury,
death or property damage”).
4
  See Complaint, 4/9/2014, at ¶¶ 9 (averring “[a]ll Defendants resided in
the Property, entered into verbal lease agreements with [Marusco], and
made rent payments in accordance with verbal lease agreement for many
years”); 10 (averring “[d]uring the year 2013, Defendants began to fall
behind on rent”); 18 (calculating “rent due and owing” as $3,800.00); 19
(explaining Defendants left house in “deploable condition”); 20 (averring
(Footnote Continued Next Page)


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      made general denials, this Court properly accepted such as
      admissions. Furthermore, the Defendants failed to even respond
      to [Marusco’s] Motion for Judgment on the [P]leadings.
      Therefore, this Court properly deemed the general denials as
      admissions and entered judgment in the amount of $4,300
      against all Defendants[.]

Trial Court Opinion, 9/24/2014, at 2.

      We agree with the ruling of the trial court. While we acknowledge that

the Defendants now claim they raised material issues of fact in their specific

denials to paragraphs 24 through 27 of the complaint and their affirmative

defense pled in new matter, we find this argument belated. Indeed, as the

trial court pointed out in its opinion, “Defendants failed to even respond to

[Marusco’s] Motion for Judgment on the [P]leadings.” Id. Accordingly, the

Defendants have waived the right to provide an explanation for their general

denials to the substantive facts supporting Marusco’s right to relief.5   See

Swift v. Milner, 538 A.2d 28, 31 (Pa. Super. 1988) (rejecting appellant’s

claim that counsel could have corrected pleading defects by filing amended

answer; “[o]nce having notice by the trial court that the presentment to the

court was defective, Appellant's counsel had the opportunity to cure the



                       _______________________
(Footnote Continued)

“[Marusco] has incurred costs of approximately $500.00 associated with
cleaning and repair of Property as a result of Defendants’ actions”).
5
  We also reject the Defendants’ attempt to place blame for their failure to
respond on their ill-fated attempt to obtain legal aid. The Defendants do not
claim that they failed to receive Marusco’s motion. Thus, it was incumbent
upon the Defendants to file a timely reply.



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flaw” but never filed motion for leave to amend, and “effectively abandoned”

efforts to cure defect).

      Accordingly, because we find no error on the part of the trial court in

granting the motion for judgment on the pleadings, we affirm the judgment

entered in favor of Marusco.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2015




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