J-A23024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MONTOUR HEIGHTS COUNTRY CLUB,            :   IN THE SUPERIOR COURT OF
 A PENNSYLVANIA NON-PROFIT                :        PENNSYLVANIA
 CORPORATION                              :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL P. CARVELLI AND JODY L.          :   No. 344 WDA 2018
 CRISSMAN, ADULT INDIVIDUALS              :
                                          :
                    Appellants            :

            Appeal from the Judgment Entered February 12, 2018
     In the Court of Common Pleas of Allegheny County Civil Division at
                         No(s): No. AR-16-005210


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 21, 2018

      This is an appeal from the grant of judgment on the pleadings in favor

of Plaintiff-Appellee, Montour Heights Country Club (“Montour”), in a collection

action against Appellants Michael P. Carvelli and Jody L. Crissman. We affirm.

      The factual and procedural history is as follows:      Appellant Carvelli

applied for membership to Montour on May 19, 2016, and he completed a

Significant Other Registration Form naming Appellant Crissman as a significant

other.   Complaint, 12/7/16, at ¶ 4.      Montour filed a complaint against

Appellants on December 7, 2016, alleging breach of contract by Appellant

Carvelli and unjust enrichment by Appellant Crissman. Id., at counts I and

II. Appellants filed a counseled answer on January 31, 2017. On February 13,
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2017, all parties allegedly entered into a Settlement Agreement,1 and on

March 2, 2017, they signed and filed a Praecipe to Settle and Discontinue the

case without prejudice, thereby canceling the arbitration hearing scheduled

for April 4, 2017. Praecipe to Settle and Discontinue, 3/2/17.

       Montour filed a First Amended Complaint on April 26, 2017, which

included counts for breach of contract against Appellant Carvelli and unjust

enrichment against Appellant Crissman, and demanded the sum of $9,952.29

plus finance charges accruing at the rate of two percent per month.       First

Amended Complaint, 4/26/17. On May 4, 2017, the trial court entered an

order permitting Appellants’ counsel to withdraw. Appellants filed a pro se

answer on June 16, 2017. Montour then filed a praecipe for an arbitration

hearing on July 19, 2017. The hearing was held on December 6, 2017, at

which Appellants appeared pro se. The arbitration panel entered an award 1)

in Montour’s favor “against only [Appellant] Michael P. Carvelli” in the amount

of $11,372.15, and 2) in Appellant Crissman’s favor “as to Plaintiff’s claims.”




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1 The Settlement Agreement is not docketed as filed and was not attached to
the Praecipe to Settle and Discontinue filed in this case on March 2, 2017.
Thus, it was not part of the pleadings before the trial court. Appellants
included the Settlement Agreement as an attachment to their Motion for
Reconsideration and Brief in Support, filed more than one year later, on
March 12, 2018. We discuss the significance of this failing infra.



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Arbitration Award, 12/6/17. On December 29, 2017, Appellant Carvelli filed

an appeal to the Allegheny County Common Pleas Court.2

       On January 24, 2018, Montour filed a Motion for Judgment on the

Pleadings. By order filed on February 12, 2018, the trial court granted the

Motion for Judgment on the Pleadings and entered judgment in favor of

Montour and against Appellants, “jointly and severally, in the amount of

$11,226.48, plus interest until collected and all costs of suit.” Order, 2/12/18.

       Appellants, by new counsel, filed a notice of appeal to this Court on

March 7, 2018. Appellants also filed a Motion for Reconsideration and Brief in

Support on March 12, 2018.3 Montour filed an answer, and the trial court


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2 Although Appellant Crissman was not an aggrieved party who would have
appealed the Arbitration Award, the award in her favor was appealable by
Montour. Pa.R.C.P. 1309 provides, “An appeal by any party shall be deemed
an appeal by all parties as to all issues unless otherwise stipulated in writing
by all parties.” There was no such stipulation in this case; thus, the appeal
by Appellant Carvelli sufficed as an appeal by Montour, as well.

3   Pa.R.A.P. 1701 provides as follows:

       a) General rule. Except as otherwise prescribed by these rules,
       after an appeal is taken or review of a quasijudicial order is
       sought, the trial court or other government unit may no longer
       proceed further in the matter.

       (b) Authority of a trial court or agency after appeal. After
       an appeal is taken or review of a quasijudicial order is sought, the
       trial court or other government unit may:

                                          * * *




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denied the motion for reconsideration on April 2, 2018. Both Appellants and

the trial court complied with Pa.R.A.P. 1925.

       Appellants raise the following issues on appeal:

       [1.] Whether the Praecipe to Settle and Discontinue Without
       Prejudice prevented a continuance or revival of the action
       discontinued and the filing of the Amended Complaint a nullity?

       [2.] Whether the Amended Complaint was void as it was not filed
       with the consent of all parties or with leave of court?

       [3.] Did the lower court err as a matter of law in finding against
       Appellant Jody L. Crissman a claim for unjust enrichment and/or
       violation of a written contract?

Appellants’ Brief at 6.


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          (3) Grant reconsideration of the order which is the subject
          of the appeal or petition, if:

              (i) an application for reconsideration of the order is
              filed in the trial court or other government unit within
              the time provided or prescribed by law;

                                          * * *

          A timely order granting reconsideration under this
          paragraph shall render inoperative any such notice of appeal
          or petition for review of a quasijudicial order theretofore or
          thereafter filed or docketed with respect to the prior
          order. . . .

Pa.R.A.P. 1701. Thus, because the trial court did not grant reconsideration,
the appeal progressed in timely fashion; for our purposes, the reconsideration
proceedings did not impact the appeal. In addition, 42 Pa.C.S. § 5505, which
provides, “Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30 days after its
entry, notwithstanding the prior termination of any term of court, if no appeal
from such order has been taken or allowed,” also is not applicable, as it would
have been if the trial court had granted reconsideration within thirty days.

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      We examine the requirements of entry of judgment on the pleadings.

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 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). Moreover:

      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.

Rourke v. PA Nat’l Mutual, 116 A.3d 87, 91 (Pa. Super. 2015).

Furthermore, “[w]e 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.”   Century Sur Co. v.

Essington, 140 A.3d 46, 51 (Pa. Super. 2016).

      We address Appellants’ first two issues in tandem. Appellants assert

that because all parties signed a Praecipe to Settle and Discontinue without

prejudice on March 2, 2017, based upon the Settlement Agreement the

parties’ signed, Montour should not have filed an amended complaint because

a discontinuance is the exclusive voluntary termination of an action.

Appellants’ Brief at 11 (citing Pa.R.C.P. 229). Thus, they maintain that there

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no longer existed an action pending before the trial court. Appellants’ Brief at

12. Appellants contend that by discontinuing its action before the filing of the

amended complaint, the trial court lacked jurisdiction “to hear the issues set

forth in the amended complaint.” Id. at 13. Appellants’ argue that “[t]his

[C]ourt cannot remand the matter back to the trial court for further

proceedings as there is no action in the trial court.” Id.

       Appellants continue their attack on the propriety of the First Amended

Complaint in their second issue, asserting that it was filed without the “request

and consent either of the other parties or the court.” Appellants’ Brief at 15.

They contend this action “flies in the face of the clear statement” of Pa.R.C.P.

1033, which provides that “[a] party either by filed consent of the adverse

party or by leave of court may . . . amend the pleading.” Appellants’ Brief at

14–15. Appellants reiterate that Montour did not request consent from either

Appellants or the court before filing the amended complaint.         Id. at 15.

Appellants complain that “only eight[] days after the filing of the amended

complaint” they were without counsel, as prior counsel sought and obtained

leave of court to withdraw.4 Id. at 16. Thus, Appellants filed their answer

pro se.

       We consider the basis of the trial court’s grant of judgment on the

pleadings and its implication for Appellant’s first two issues on appeal.


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4 Appellants had counsel when they entered into the Settlement Agreement.
Settlement Agreement, 2/13/17; Praecipe to Settle and Discontinue, 3/2/17.

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Appellants’ answer to Montour’s First Amended Complaint indicates, in its

entirety, as follows:

              [Appellants], Michael P. Carvelli and Jody L. Crissman
       make[] this their answer to the complaint filed by [Montour] and
       set[] forth the following:

              1–12–Denied


              1- Denied
              2- Denied
              3- Denied
              4- Denied
              5- Denied
              6- Denied
              7- Denied
              8- Denied
              9- Denied
              10- Denied
              11- Denied
              12- Denied

Answer, 6/16/17. In light of the pleadings before it, the trial court noted the

following:

       I granted [Montour’s] Motion for Judgment on the Pleadings based
       upon the fact that [Appellants] did not sufficiently respond to
       [Montour’s] [First] Amended Complaint, as [Appellants’] Answer
       merely contained twelve number[ed] paragraphs, each containing
       only the word “denied.” See Pa.R.C.P. 1029(b) (“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 in
       subdivisions (c) and (e) of this rule, shall have the effect of an
       admission”).[5] Since [Appellants’] general denials have the
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5  Neither subdivision (c) (“A statement by a party that after reasonable
investigation the party is without knowledge or information sufficient to form
a belief as to the truth of an averment shall have the effect of a denial”), nor



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       effect of admissions, judgment was properly entered in favor of
       [Montour]. To the extent that [Appellants] argue I abused my
       discretion by not allowing them to amend their Answer when they
       requested to do so at argument, while I have no specific
       recollection of such a request being made, assuming that such a
       request was made, [Appellants] did not make such a request
       through a proper motion (i.e. a written motion with notice to the
       opposing party, and importantly attaching the proposed amended
       answer) at the time, and did not file a proper motion at any time
       after argument through the time of their appeal.

             All other defenses to Judgment on the Pleadings that
       [Appellants] argued in their Motion for Reconsideration were
       waived by [Appellants’] Answer to the Amended Complaint. See
       Pa.R.C.P. 1032(a) (“A party waives all defenses and objections
       which are not presented either by preliminary objection, answer
       or reply...”).

Trial Court Opinion, 4/18/18, at 2–3 (emphases added).

       Appellants’ first two issues both assume that the Settlement Agreement,

on which the Praecipe to Discontinue was based, was before the trial court. It

was not. Its absence from the pleadings, in the record before the trial court,

is fatal to Appellants’ case. Because Appellants’ general denials had the effect

of admissions pursuant to Pa.R.C.P. 1029(b), we agree that the trial court

properly granted judgment on the pleadings.

       In addition, Appellants never filed preliminary objections assailing the

sufficiency of the First Amended Complaint.      See Pa.R.C.P. 1028(a)(3), (4)

(Preliminary objections may be filed to challenge “insufficient specificity in a

pleading” and “legal insufficiency of a pleading”); In re Adoption of S.P.T.,


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subdivision (e) (“In an action seeking monetary relief for bodily injury, death
or property damage . . . .”) is applicable to this case.

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783 A.2d 779 (Pa. Super. 2001) (Preliminary objections are the appropriate

method by which to challenge allegations raised as a basis for relief); Pa.R.C.P.

1032(a)6 (“A party waives all defenses and objections which are not presented

either by preliminary objection, answer or reply . . . .”).

       As Appellants have not asserted a sufficient claim regarding the trial

court’s reasoning in granting the judgment, Appellants’ Brief at 1–17, and we

find no abuse of discretion by the trial court, we agree that the trial court did

not err.7

       Appellants’ third issue, as identified in the argument section of their brief,

asserts that the trial court erred in awarding Montour attorney’s fees against

Appellant Crissman. Appellants’ Brief at 16. Careful examination of Appellants’

brief, however, reveals that there is no argument regarding attorney’s fees.

Appellants’ Brief at 16–17. This Court will not consider an argument that has

been abandoned and is undeveloped. See Koller Concrete, Inc. v. Tube



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6  Appellants’ vagueness allegation is not one of the exceptions to the
applicability of waiver by Rule 1032. Pa.R.C.P. 1032(a).

7  To the extent Appellants’ issues rely upon the alleged Settlement Agreement
the parties purportedly entered into in February of 2017, before Montour filed
the First Amended Complaint on April 26, 2017, the claims are waived. As
noted supra, such Settlement Agreement was not filed in the trial court.
Indeed, the only place the agreement exists is in the certified record before
us is attached to Appellants’ Motion for Reconsideration and Brief in Support
filed on March 12, 2018, after the trial court had granted Judgment on the
Pleadings. Thus, there is no indication the trial court was even aware of such
an agreement, nor was it referenced in any pleading before the trial court
when it granted the judgment on the pleadings.

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City IMS, LLC, 115 A.3d 312, 320 321 (Pa. Super. 2015) (Superior Court will

not address issue presented in the statement of questions involved where no

corresponding analysis is included in the brief); Lechowicz v. Moser, 164

A.3d 1271, 1276 (Pa. Super. 2017) (Superior Court will not consider argument

that is not properly developed). Instead, Appellants maintain in the argument

section of their brief that the amended complaint at paragraph fourteen is

“vague and unclear” as to the cause of action against Appellant Crissman.

Appellants’ Brief at 16. As discussed supra, this issue is waived pursuant to

Pa.R.C.P. 1032(a).

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2018




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