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HOFFMAN v. BOZITSKO (06/13/62)

June 13, 1962

HOFFMAN
v.
BOZITSKO, APPELLANT.



Appeal, No. 3, Feb. T., 1962, from decree of Court of Common Pleas of Luzerne County, Oct. T., 1960, No. 1914, in case of Rolland A. Hoffman et al. v. Chester Bozitsko et al. Decree vacated and record remitted.

COUNSEL

George I. Puhak, with him Andrew I. Puhak, for appellant.

George L. Fenner, Jr., with him Arnold Steinhardt, for appellees.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Flood

[ 198 Pa. Super. Page 554]

OPINION BY FLOOD, J.

This is an appeal from a decree granting the plaintiffs' motion for judgment on the pleadings in an action to quiet title.

The complaint avers that the plaintiffs hold title to a tract of land in Luzerne County, part of which lies in Butler Township and part in Dennison Township; that a part of the tract, lying in Dennison Township, was assessed for taxes in 1954 and 1955 in that

[ 198 Pa. Super. Page 555]

    township; that the taxes based upon this assessment were not paid; that on September 5, 1956, the land so assessed was sold at public sale to the defendant; that a deed from the Tax Claim Bureau was executed on January 16, 1957, duly recorded and delivered to him; that the land in question was properly assessed with the rest of the tract in Butler Township and taxes were properly paid there; that the defendant acquired no title at the judicial sale and that the plaintiffs and their grantees are in possession and the defendant is not in possession.

The answer denied in haec verba the plaintiffs' allegation that they were in possession, denied that they were the owners of the land purchased by the defendant and did not admit or deny the averment that the defendant was not in possession. The court held that these insufficient denials constituted an admission that plaintiffs were in possession and defendant was not. From this it concluded that judgment on the pleadings must be granted, leaving all questions of title and right to possession to be determined in an ejectment suit which the defendant was required to bring. The court thereupon decreed that unless the defendant commenced an action of ejectment within thirty days of the date of the decree, he would be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest or claim of the plaintiffs set forth in the complaint.

The defendant appeals upon the grounds that (1) his rights in property purchased at a judicial sale cannot or should not be determined in an action of ejectment but in an action to quiet title under Pa. R.C.P. No. 1061(b)(4); and therefore (2) all questions as to ...


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