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JOSEPH E. BALUSH v. BOROUGH NORRISTOWN (11/20/81)

filed: November 20, 1981.

JOSEPH E. BALUSH, APPELLANT
v.
BOROUGH OF NORRISTOWN



No. 1837 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 79-9586.

COUNSEL

Harold Rehfuss, Philadelphia, for appellant.

John O'Rourke, Norristown, for appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 292 Pa. Super. Page 418]

Appellant contends that the lower court erred in dismissing his complaint upon appellee's motion for judgment on the pleadings. We agree and, accordingly, reverse the order of the court below and remand for proceedings consistent with this opinion.

On May 24, 1979, appellant filed a complaint in trespass alleging that he suffered injuries while driving his automobile along a roadway which had been negligently maintained by appellee. Appellee subsequently moved for judgment on the pleadings on the ground that appellant's complaint failed to state a cause of action because it contained no allegation that appellant had sustained medical expenses exceeding $750 as required by section 301(a)(5)(B) of the Pennsylvania No-fault Motor Vehicle Insurance Act,*fn1 40 Pa.C.S.A. § 1009.301(a)(5)(B) (the Act). The lower court granted appellee's motion and dismissed the complaint. This appeal followed.*fn2

[ 292 Pa. Super. Page 419]

Appellant argues first that the lower court should not have granted judgment on the pleadings because facts revealed in discovery showed that he had, indeed, incurred the requisite amount of medical expenses under the Act. We disagree. While it is true that a judgment on the pleadings may be entered "in cases which are so free from doubt that trial would clearly be a fruitless exercise," Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967), a court's consideration of such a motion is inherently limited to the well-pleaded facts, admissions, and documents properly attached to the pleadings.

[A motion for judgment on the pleadings] is in the nature of a demurrer; 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. . . . Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is further circumscribed by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto.

Id., 423 Pa. at 378, 224 A.2d at 178 (emphasis added; footnote and citations omitted). See also Puleo v. Broad Street Hospital, 267 Pa. Superior Ct. 581, 584, 407 A.2d 394, 396 (1979); Bogojavlensky v. Logan, 181 Pa. Superior Ct. 312, 320, 124 A.2d 412, 416 (1956). "The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection, and an answer thereto." Pa.R.Civ.P. 1017(a) (made applicable to actions in trespass through Pa.R.Civ.P. 1041, 2 Goodrich-Amram 2d § 1041:4 (1976)). Consequently, appellant cannot rely upon facts revealed in his

[ 292 Pa. Super. Page 420]

    deposition or answers to interrogatories nor upon documents produced during discovery to defeat a motion for judgment on the pleadings. Bogojavlensky v. Logan, supra, 181 Pa. Super. at 320-21, 124 A.2d at 416-417 (cannot rely upon depositions); 2 Goodrich-Amram 2d, supra § 1034(a):1. As the lower court properly observed in its opinion, appellant's "[c]omplaint does not allege that he has [met] or will meet the minimum ...


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