No. 02126 PHILADELPHIA, 1983, Appeal from an Order in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 58549 T.L.D. December Term, 1978.
Austin J. McGreal, Philadelphia, for appellant.
Andrew P. Bralow, Philadelphia, for appellee.
Tamilia, Johnson and Hester, JJ. Johnson, J., filed a dissenting opinion.
[ 334 Pa. Super. Page 85]
Appellant, Housing Improvement Corporation, had been the legal owner of property situate at 2026 Wallace Street, Philadelphia, Pennsylvania. A residential dwelling was erected thereon.
Appellee, City of Philadelphia, filed a municipal lien against the property for delinquent real estate taxes, and on February 1, 1982, the property was levied for sale by the Sheriff of Philadelphia County. Additional appellees, Albert Wachlin and Robert Laughlin, purchased the property at the Sheriff's sale. Settlement was made with the Sheriff and the Sheriff's deed bears an acknowledgement dated March 1, 1982.
On March 10, 1983, appellant filed a petition to redeem the property in accordance with the redemption requirements. 53 P.S. § 7293. On March 16, 1983, the City of Philadelphia filed its answer. On March 28, 1983, Wachlin and Laughlin filed their answer stating new matter.
On April 5, 1983, the lower court dismissed the petition before appellant filed an answer to appellees' New Matter. On June 18, 1983 appellant filed a motion to vacate the Order of Dismissal. The motion was denied on July 11, 1983. Hence, this appeal followed. We reverse and remand.
The sole issue raised is whether the court's dismissal of the Petition for Redemption was prematurely entered and as such invalid.
[ 334 Pa. Super. Page 86]
Under Pennsylvania Rule of Civil Procedure 1026, "[every] pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead."
In the present case, appellees' new matter was filed on March 28, 1983, containing no notice to plead. The court, only eight days later, filed its order dismissing appellant's petition, and effectively precluding appellant from replying to appellee's new matter. If appellees' new matter did contain a notice to plead, no Order could issue until the twenty-day period had run, or appellant had filed a reply, whichever occurred earlier. Vance v. Ferrara, 71 D & C 571 (1950). However, no notice to plead was attached to the new matter and consequently, no responsive pleading was ...