J-A30028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY M. LYSAGHT                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DEBORAH A. KREKSTEIN

                         Appellant                     No. 736 MDA 2016


                Appeal from the Order Entered April 14, 2016
              In the Court of Common Pleas of Dauphin County
                  Civil Division at No(s): 2015-CV-03422-EQ


BEFORE: BOWES, OLSON and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 14, 2017

      Appellant, Deborah A. Krekstein, appeals from the order entered on

April 14, 2016. We vacate and remand.

      On April 30, 2015, Gary M. Lysaght (hereinafter “Mr. Lysaght”)

instituted the current action by filing a complaint seeking the partition of real

property.   Within Mr. Lysaght’s amended complaint, Mr. Lysaght averred

that he and Appellant married on September 13, 1986 and later purchased

their marital residence at 1350 Fishing Creek Valley Road, in Harrisburg,

Pennsylvania.   Mr. Lysaght’s Amended Complaint, 6/9/15, at ¶¶ 3-4.          The

parties divorced on July 10, 2014. Id. at ¶ 5.

      As Mr. Lysaght averred, he and Appellant “executed a Marital

Settlement Agreement [on May 9, 2014; therein, the parties] agreed to sell

the marital residence . . . and evenly divide the net proceeds.” Id. at ¶ 6.
J-A30028-16



According to Mr. Lysaght, despite being on the market for over one year, the

marital property has not sold and Appellant will not agree to a lower asking

price. Id. at ¶¶ 7-13. Therefore, Mr. Lysaght requested that the trial court

order the partition of the marital property. Id. at ¶ 19.

      Following   the     overruling   of   Appellant’s   preliminary   objections,

Appellant filed a timely answer to Mr. Lysaght’s complaint. See Appellant’s

Answer, 11/24/15, at 1-3. Within Appellant’s answer, Appellant denied that

the trial court should order the partition of the property and Appellant

requested that the trial court “dismiss [Appellant’s] amended complaint for

the partition of real property.” Id. at ¶ 19 and “Wherefore” Clause (some

internal capitalization omitted).

      On April 14, 2016, the trial court sua sponte ordered the partition of

the marital residence – based only upon the complaint and answer and

despite there not being any pending motion for a judgment on the pleadings.

See Trial Court Order, 4/14/16, at 1.

      Appellant filed a timely notice of appeal from the partition order. See

Pa.R.A.P. 311(a)(7) (“[a]n appeal may be taken as of right and without

reference to Pa.R.A.P. 341(c) from . . . [a]n order directing partition”).

Appellant raises one claim on appeal:

        Whether the trial court erred as a matter of law in granting
        [Mr. Lysaght’s] request for partition of real property where
        there was no default, admission or hearing held in
        contravention of Pa.R.C.P. 1557?

Appellant’s Brief at 2.


                                        -2-
J-A30028-16



      Within Appellant’s brief to this Court, Appellant claims that the trial

court erred when it “sua sponte entered an order for partition on the

pleadings [even though] neither party had filed a motion requesting the

same.” Id. at 4. We agree.

      Pennsylvania Rule of Civil Procedure 1551 declares:        “[e]xcept as

otherwise provided in this chapter, the procedure in an action for the

partition of real estate shall be in accordance with the rules relating to the

civil action.”    Pa.R.C.P. 1551.   Moreover, regarding judgment on the

pleadings, Pennsylvania Rule of Civil Procedure 1034 provides:

        (a) After the relevant pleadings are closed, but within such
        time as not to unreasonably delay the trial, any party may
        move for judgment on the pleadings.

        (b) The court shall enter such judgment or order as shall be
        proper on the pleadings.

Pa.R.C.P. 1034.

      As the Pennsylvania Supreme Court has held, “[a] court is without

power under . . . Rule 1034 to enter judgment [on the pleadings] on its own

motion.”   Paulish v. Bakaitis, 275 A.2d 318, 322 (Pa. 1971), limited by

Bensalem Township Sch. Dist. v. Commonwealth, 544 A.2d 1318, 1321

n.2 (Pa. 1988) (“In Paulish v. Bakaitis, [] this Court held that judgment on

the pleadings cannot be entered sua sponte.       The opinion admits of the

possible interpretation that a court cannot enter judgment in favor of a non-

moving party.     Today, we expressly disapprove of that interpretation, and

limit the Courts’ holding in Paulish to the effect that a court must at least


                                     -3-
J-A30028-16



be presented with a motion by one of the parties before it can

consider the sufficiency of the pleadings”) (emphasis added); see also

3 GOODRICH AMRAM 2d § 1034(b):19 (“A court is without power to enter a

judgment on the pleadings on its own motion.     One or both of the parties

must file a motion for judgment on the pleadings before the court can

exercise its power to grant judgment on the pleadings”) (internal footnotes

omitted).

     In the case at bar, the trial court sua sponte entered judgment on the

pleadings in favor of Mr. Lysaght, on the court’s own motion. This is clearly

erroneous and requires that we vacate the trial court’s order and remand for

further proceedings.

     Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




                                    -4-
