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ENOCH ET UX. v. FOOD FAIR STORES (12/11/74)

decided: December 11, 1974.

ENOCH ET UX.
v.
FOOD FAIR STORES, INC. (ET AL., APPELLANTS)



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1973, No. 4470, in case of C. Robert Enoch and Betty Enoch, his wife v. Food Fair Stores, Inc., Robert L. Frazier, Philadelphia Refining and Packaging Corporation and Norman Gaffney, Defendants, and Delaware River Port Authority and C. Robert Enoch, Additional Defendants.

COUNSEL

Joel Paul Fishbein, with him Albert L. Bricklin, and Bennett, Bricklin & Saltzburg, for appellants.

Elizabeth M. McKenna, with her John J. O'Brien, Jr., for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P. J., dissents.

Author: Hoffman

[ 232 Pa. Super. Page 3]

Appellant contends that the lower court erred in granting appellee's Motion for Judgment on the Pleadings.

The plaintiffs below, C. Robert Enoch and Betty Enoch, instituted an action in trespass against Food Fair Stores, Inc., Robert L. Frazier, Philadelphia Refining and Packaging Corporation and Norman Gaffney, for injuries arising out of a motor vehicle accident on August 24, 1972. The accident occurred on the Walt Whitman Bridge, just beyond the Philadelphia toll booths on the Pennsylvania side of the bridge. Appellants, Philadelphia Refining and Packaging Corporation and Norman Gaffney, filed a complaint joining the appellee, Delaware River Port Authority, as an additional defendant. The Port Authority filed an answer to appellants' complaint. In addition, the Authority filed new matter raising the defense of sovereign immunity. The appellants failed to respond to the Authority's new matter. Thereafter, the Authority filed a Motion for Judgment on the Pleadings over the objection of the appellants which was granted by the court below on April 18, 1974.

Under Rule 1030 of the Rules of Civil Procedure, "immunity from suit" is an affirmative defense.*fn1 Rule

[ 232 Pa. Super. Page 41045]

(b) provides that all affirmative defenses shall be pleaded under the heading "New Matter" and that "[a] plaintiff who fails to file a reply to averments of the defendant's new matter shall be deemed to admit all such averments. . . ." Under Rule 2255, a party joining an additional defendant is treated as a plaintiff, and the additional defendant is treated as a defendant.

The new matter filed by the Authority pursuant to Rule 1045 is as follows: "Additional defendant avers that at all times material, it was a corporate instrumentality and/or agent of the Commonwealth of Pennsylvania entitled to sovereign immunity and thus additional defendant is immune from liability and immune from suit." The lower court ruled that appellants' failure to reply resulted in an admission by appellants of everything contained in the new matter. The court, therefore, held that the Authority was immune from suit and consequently granted its motion for judgment on the pleadings.

A motion for judgment on the pleadings under Rule 1034 is in the nature of a demurrer and thus "all of the opposing party's well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him. . . ." Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174 (1966) (emphasis added). See also, Karns v. Tony Vitale Fireworks Corp., 436 Pa. 181, 259 A.2d 687 (1969); Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968). The purpose of new matter pleading is "to compel a plaintiff to answer the defendant's affirmative defenses during the pleading stage to ...


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