Appeals, Nos. 37 and 38, March T., 1963, from judgment of Court of Common Pleas of Westmoreland County, April T., 1960, Nos. 687 and 688, in case of John Edward Schmeltz, Sr., trustee ad litem, v. Christian Youth Camp of the Synod of Pittsburgh of the United Presbyterian Church of North America, William Knab, David Wallace et al. Judgment reversed.
Robert Engel, with him Coleman Harrison, for appellant.
Robert W. Smith, Jr., with him Edward S. Stiteler, and Smith, Best and Horn, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
The sole question raised on these appeals is whether, prior to the effective date of Rule 1045(b) of the Pennsylvania Rules of Civil Procedure, as amended,*fn1 judgment on the pleadings may be entered against a party for failure to file a reply to new matter.
A complaint in trespass was filed on July 1, 1960, by John Edward Schmeltz, Sr., against Christian Youth Camp of the Synod of Pittsburgh of the United Presbyterian Church of North America and against its employees to recover damages in both survival and death actions as a result of the drowning of plaintiff's minor son, alleging negligence in the operation and supervision of defendant's summer camp swimming pool. The Christian Youth Camp filed an answer on September 16, 1960, and alleged, under new matter,
that it is a Pennsylvania nonprofit corporation and, as a charitable nonprofit corporation, it is not liable for the negligence of its employees.
Although the answer was endorsed with a notice to plead, no reply was filed by plaintiff. On May 26, 1961, corporate defendant filed a motion for judgment on the pleadings. This was granted on August 10, 1962, and hence these appeals.
Prior to the 1962 amendment to Rule 1045(b), it provided: "(b) All affirmative defenses, including but not limited to those enumerated in Rule 1030, and the defenses of consent, privilege, qualified privilege, fair comment, truth, justification, immunity from suit and impossibility of performance shall be pleaded under the heading 'New Matter'. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. The defense of contributory negligence need not be pleaded."
The 1962 amendment of this rule, effective April 2, 1962, added a new sentence at the end of the rule above quoted, which reads as follows: "A plaintiff who fails to file a reply to averments of the defendant's new matter shall be deemed to admit all such ...