J-A17016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JESSICA TAYLOR                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

PAULINE HARRIS

                            Appellee                   No. 1979 EDA 2015


                   Appeal from the Order Entered June 2, 2015
              In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 0034 March Term, 2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 25, 2016

        Jessica Taylor appeals from the trial court’s order denying her post-

trial motion after the court granted a compulsory nonsuit1 in favor of

Appellee, Pauline Harris. After careful review, we reverse and remand for a

new trial.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  A trial court may enter a compulsory nonsuit on any and all causes of
action if, at the close of a plaintiff's case against all defendants on liability,
the court finds that the plaintiff has failed to establish a right to relief.
Pa.R.C.P. 230.1(a), (c); Portside Investors, L.P. v. N. Ins. Co. of New
York, 41 A.3d 1, 13 (Pa. Super. 2011). On appeal, entry of a compulsory
nonsuit is affirmed only if no liability exists based on the relevant facts and
circumstances, with appellant receiving the benefit of every reasonable
inference and resolving all evidentiary conflicts in appellant’s favor. The
compulsory nonsuit is otherwise properly removed and the matter remanded
for a new trial. Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582
(Pa. 2012).
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       This matter arises from an automobile accident that occurred on July

28, 2012, in the area of 15th and Clearview Streets in Philadelphia.        On

March 3, 2014, Taylor filed a personal injury complaint against Harris

alleging that Harris “suddenly and without warning . . . negligently,

carelessly and/or recklessly operated [her] vehicle in such a manner as to

cause a collision.” Plaintiff’s Complaint, 3/3/14, at ¶ 5. As a result of the

collision, Taylor alleged that she suffered “permanent bodily injuries,” id. at

¶ 6, and “property damage to [her] vehicle and other related damages.” Id.

at ¶ 15.    In response to the complaint, on April 15, 2014, Harris filed an

answer with new matter. A jury trial commenced on May 4, 2015. On the

second day of trial, at the close of Taylor’s case, Harris moved for a nonsuit

based on Taylor’s failure to file a reply to her new matter.

       On May 5, 2015, at 11:23 a.m., Taylor filed a reply to Harris’ new

matter, generally denying all averments in the new matter and concluding

that “the averments were stating conclusions of law to which no response is

mandated pursuant to the Pennsylvania Rules of Civil Procedure.” Plaintiff’s

Reply to New Matter, 5/5/15.2 The court, thereafter, granted Harris’ motion

for nonsuit and entered judgment in favor of Harris. Taylor filed timely post-
____________________________________________


2
   At the conclusion of argument on the motion for non-suit, Taylor’s counsel
stated that they had prepared a reply to Harris’ new matter; however, the
reply had not yet been time-stamped and entered on the docket. N.T. Trial
(Waiver), 5/5/15, at 18.      Immediately following Taylor’s case-in-chief,
Harris’ attorney acknowledged that Taylor’s reply to new matter was just
filed with the court. Id. at 20.



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trial motions claiming that because Harris did not plead any facts in her new

matter, she did not need to file a reply. On June 2, 2015, the court denied

the post-trial motions. This timely appeal follows.

         On appeal, Taylor presents the following issue for our review: Did the

trial court err in granting appellee’s Motion for a Non-Suit based upon the

fact that plaintiff did not file a Reply to New Matter before trial had begun?

         Instantly, Taylor takes issue with the fact that the court granted a

nonsuit at the close of her case when Harris’ new matter did not contain

facts supporting an affirmative defense to require an affirmative denial via a

reply.    Rather, in such cases, Taylor contends that Harris’ averments are

automatically deemed denied.

         Pursuant to Pa.R.C.P. 1029(b), “[a]verments in a pleading to which a

responsive pleading is required are admitted when not denied specifically or

by necessary implication.”     Moreover, “[a]verments in a pleading to which

no responsive pleading is required shall be deemed to be denied.” Pa.R.C.P.

1029(d). A responsive pleading shall admit or deny each “averment of fact

in the preceding pleading or any part thereof to which it is responsive.”

Pa.R.C.P. 1029(a) (emphasis added).

         In Gotwalt v. Dellinger, 577 A.2d 623 (Pa. Super. 1990), our Court

stated:

         Pennsylvania Rule of Civil Procedure 1029(d) governs when a
         party must file a responsive pleading to an averment contained
         in a new matter or other pleading. Rule 1029(d) provides that
         averments in a pleading to which no responsive pleading is
         required shall be deemed to be denied. If a party’s new

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     matter does not contain facts supporting an affirmative
     defense, but rather contains merely conclusions of law, no
     denial is required because such averments are deemed to
     be denied. Because such averments are deemed to be denied,
     they are, therefore, in issue, and no judgment may be entered
     based upon a party’s failure to respond to those averments.

     In evaluating whether an averment contained in a new
     matter requires a response pursuant to Pa.R.Civ.P.
     1029(d), trial courts must consider whether the
     averments are fact-based or are merely conclusions of
     law.

Id. at 626 (emphasis added). See Goodrich-Amram, Standard Pennsylvania

Practice (1972 Supplement), § 1030-1 at 308 (purpose of new matter

pleading is “to compel a plaintiff to answer the defendant’s affirmative

defenses during the pleading stage to avoid an unnecessary trial.”).

     Moreover, in Sechler v. Ensign-Bickford Co., 469 A.2d 233 (Pa.

Super. 1983), our Court further defined new matter:

     The term “New Matter,” under which heading Pa. R. Civ. P. 1030
     requires affirmative defenses to be pleaded, embraces matters
     of confession and avoidance as understood at common law, and
     has been defined as matter which, taking all the allegations of
     the complaint to be true, is nevertheless a defense to the action.
     New matter ignores what the adverse party has averred
     and adds new facts to the legal dispute on the theory that
     such new facts dispose of any claim or claims which the
     adverse party had asserted in his pleading. Pleaders often
     confuse specific denials with new matter. A specific denial in
     contrast to new matter, merely tells what happened in place of
     the averment of the adverse party which is denied.             For
     example, a denial of the contract pleaded by the plaintiff and the
     assertion of a different contract or the denial that the defendant
     is in control of premises and that a third person is in control is
     fundamentally a traverse and not an avoidance and may not be
     pleaded as new matter.

Id. at 233 (emphasis added).


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      Thus, if Harris’ new matter only averred conclusions of law, Taylor was

not compelled to file a reply. Enoch et ux. v. Food Fair Stores, Inc., 331

A.2d 771 (Pa. Super. 1974); see Watson v. Green, 331 A.2d 790, 792 (Pa.

Super. 1974) (court will not grant judgment in favor of defendant when

plaintiff does not reply or improperly responds to new matter when

allegations in new matter simply restate what has already been placed into

issue in complaint and answer); see also Pa.R.C.P. 1045(b) (all affirmative

defenses shall be pleaded under heading “New Matter” and plaintiff who fails

to file reply to averments of defendant’s new matter shall be deemed to

admit all such averments).

      Instantly, Harris averred the following in her new matter/answer:

     Pursuant to the applicable provisions of the PMVFRL, plaintiff is
      precluded from pleading, introducing into evidence, proving or
      recovering the amount of benefits paid or payable under said Law up
      to and including the limit of required benefits under said Law.

     Plaintiff’s claims are barred by the applicable Statute of Limitations.

     If any adult plaintiff is the owner or resident of an owner of a currently
      registered motor vehicle which does not have financial responsibility as
      defined by the PMVFRL, and if said plaintiff’s alleged injuries are not
      serious as defined by that Law; consequently, that plaintiff may be
      precluded from recovering damages for pain and suffering by the
      applicable provisions of that Law.

     In the event that the plaintiff’s request damages for delay pursuant to
      Pa. R.C.P. 238, answering defendant challenges the applicability and
      constitutionality of said rule, and places same at issue.

     Plaintiff’s Complaint fails to state a cause of action upon which relief
      may be granted for all or part of the causes of action claimed therein.




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     Plaintiff’s claims may be barred in whole or part by the provisions of
      the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.
      C.S.A. Section 1701 et seq. as amended (hereinafter PMVFRL);
      Further, the answering defendant hereby asserts all of the defenses,
      limitations and immunities available pursuant to the said Law.

     It is further averred that if the plaintiff suffered any injuries and/or
      damages as alleged, they may have been caused solely and primarily
      by plaintiff's own conduct of carelessness or negligence, or in the
      alternative, plaintiff may have assumed the risk of any and all injuries
      and/or damages which plaintiff alleges to have suffered, all of which is
      to be determined during the course and scope of discovery or trial.

     If there is a legal responsibility for the damages set forth in
      plaintiff’s Complaint, then the responsibility is that of other
      individuals and/or entities over whom the answering
      defendant had no control as plaintiff s injuries and damages as
      alleged were not caused in any manner whatsoever by the
      answering defendant.

Pauline Harris New Matter, 4/15/14, at ¶¶ 16-23 (emphasis added).

      The first seven averments in Harris’ new matter are legal conclusions

which do not warrant a reply; Harris included no facts to support the

conclusions.   See Gotwalt, supra at 626 (“If a party’s new matter does

not contain facts supporting an affirmative defense, but rather contains

merely conclusions of law, no denial is required because such averments are

deemed to be denied.”); see also Enoch, supra at 914 (legal conclusion of

sovereign immunity averred in new matter does not require denial from

plaintiff); Watson, supra (where defendant averred Dead Man’s Rule in

new matter, court considered it legal conclusion requiring no responsive

pleading); Bowman v. Mattei, 455 A.2d 714 (Pa. Super. 1983), citing The

United Fund of the Philadelphia Area, 207 A.2d 847, 850 (Pa. 1965).




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      Instantly, the trial court granted nonsuit based on Harris’ final

averment, ¶ 23, which states:

      If there is a legal responsibility for the damages set forth in
      plaintiff’s Complaint, then the responsibility is that of other
      individuals and/or entities over whom the answering defendant
      has no control as plaintiff’s injuries and damages as alleged were
      not caused in any manner whatsoever by the answering
      defendant.

Pauline Harris New Matter, 4/15/14, at ¶23.       The court determined that

Taylor “had an affirmative duty to respond to Defendant’s answer as the

averment directly related to the identity of the person responsible for the

material act (i.e., the motor vehicle accident).”        Trial Court Opinion,

11/25/15, at 2-3. We disagree.

      The trial court mischaracterizes the averment found in paragraph 23 of

Harris’ new matter. This averment was simply a denial that Harris was the

factual cause of the injuries and damages alleged in Taylor’s complaint. See

Plaintiff’s Complaint, 3/3/14, at ¶¶ 9, 15; see also Defendant’s Points for

Charge (4. Factual Cause) (“In order for the plaintiff to recover in this case,

the defendant’s negligent conduct must have been a factual cause in

bringing about harm.”).   Because Harris did not aver any facts to support

this legal theory, Taylor was not required to file a reply under Rule 1029(d).

Accordingly, because Harris’ averment should have been deemed denied, the

court improperly found that Taylor failed to establish a right to relief.

Scampone, supra.        Therefore, the nonsuit must be removed and the

matter remanded for a new trial.     Id.; Gotwalt, supra at 626 (“Because


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such averments are deemed to be denied, they are, therefore, in issue, and

no judgment may be entered based upon a party’s failure to respond to

those averments.”).

       Order    reversed.3       Case    remanded   for   new   trial.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2016




____________________________________________


3
   We also recognize our Supreme Court’s decision, Cagnoli v. Bonnell, 611
A.2d 1194 (Pa. 1992), reversing an order granting judgment on the
pleadings based upon plaintiff’s failure to file a reply to defendant’s new
matter. In that case, the Court based its holding on the fact that the
defendant “had the opportunity over a period of almost two years to file his
Motion for Judgment on the Pleadings in compliance with the procedure
required by the local rules in conjunction with Pa.R.[C.]P. 1024 for timely
filings” and, consequently, the plaintiff “was deprived of the opportunity to
fully and fairly argue against . . . [defendant’s] motions.” Id. at 1196.
Similarly, we note that Harris did not move for judgment in her favor (at
trial), based upon Taylor’s failure to reply to new matter, for more than one
year after she filed her answer.



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