decided: September 15, 1966.
Appeal from judgment of Court of Common Pleas No. 1 of Philadelphia County, June T., 1962, No. 1368, in case of Edward Lewandowski v. Raymond Crawford.
Joseph Patrick Gorham, for appellant.
Joseph G. Manta, with him James M. Marsh, and LaBrum and Doak, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 208 Pa. Super. Page 365]
This is an appeal by the plaintiff from a judgment entered in defendant's favor on the pleadings.
[ 208 Pa. Super. Page 366]
The action in trespass was commenced by summons. Subsequently a complaint duly endorsed with notice to defendant to answer within twenty days was filed and served. The defendant answered and under new matter set forth a release but did not endorse his pleading with notice to plaintiff to answer the new matter. Within twenty days after this pleading was filed the plaintiff ordered the case on the trial list without filing an answer to the new matter. Three years later defendant moved for judgment on the pleadings because of plaintiff's failure to deny the release which had been pleaded in the new matter of the answer. After argument the lower court granted the motion. This was error. Failure to endorse a pleading with notice to answer relieves the opposite party of the obligation to file a responsive pleading, and in consequence, no default judgment can be entered against him, R. C. P. 1026; Phillips v. Evans, 164 Pa. Superior Ct. 410, 65 A.2d 423 (1949).
Judgment reversed with a procedendo to trial.
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