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THOMAS C. SWIFT v. ROBERT MILNER (02/12/88)

filed: February 12, 1988.

THOMAS C. SWIFT, APPELLEE,
v.
ROBERT MILNER, APPELLANT



Appeal from the Order dated April 29, 1987 in the Court of Common Pleas of Lancaster County, Civil Division, at No. 84 October Term, 1978.

COUNSEL

Heywood E. Becker, New Hope, for appellant.

John Mongiovi, Lancaster, for appellee.

Brosky, Del Sole and Hoffman, JJ. Brosky, J., files a dissenting opinion.

Author: Del Sole

[ 371 Pa. Super. Page 305]

Appellee filed an action in assumpsit against Appellant alleging that the parties were among several joint venturers who had entered into an oral agreement by which certain

[ 371 Pa. Super. Page 306]

    property to be purchased at an impending tax sale would be owned equally by each member of the group. It was alleged in Appellee's Complaint that the parties had agreed that the property could be purchased in one of the partner's names; however, the joint venturers would still be equal owners. Appellee further contended that Appellant purchased the property in his own name and denied the remaining partners any use or interest therein. Thereafter, the instant breach of contract suit was brought against Appellant.

Preliminary motions were filed by Appellant, and were later denied by the trial court. Subsequently, Appellee filed a Motion for Judgment on the Pleadings. By its Order dated February 3, 1981, the trial court entered a partial judgment on the pleadings in Appellee's favor but ordered a trial "limited to the question of the value of the real estate to determine the value of [Appellee's] one-fifth interest." (Order, 2/3/81, 3). The trial court's disposition of the case was based on the fact that Appellant had failed to respond properly to the Complaint or file an opposing brief within ten days after service of Appellee's brief pursuant to Rule 31(B) of the Lancaster Rules of Court. Rule 31 provides in part:

[a]ny respondent who fails to comply with this rule shall be deemed not to oppose the listed matter, and upon the expiration of such ten day period, the moving party may present the same to the court for the entry of an appropriate order.

In reviewing Appellant's Answer to the Complaint, the trial court found that Appellant effectively admitted to all of Appellee's allegations by virtue of the fact that each charge was answered with a general denial. See Pa.R.C.P. 1029(b), infra.

Appellant later filed a direct appeal with this Court from the Order. However, we held that the appeal was from an interlocutory order inasmuch as the trial on the issue of damages had yet to be conducted. Swift v. Milner, 296 Pa. Super. 463, 442 A.2d 1144 (1982). Following a trial on

[ 371 Pa. Super. Page 307]

    the issue of the value of Appellee's interest in the land, a judgment was entered in Appellee's favor in the amount $18,100. This timely appeal follows.

In Argument I of his brief, Appellant contends that Rule 31 of the Lancaster Rules of Court is unconstitutional on its face. Likewise, in Argument II Appellant states that Rule 31 is unconstitutional as applied. However, in neither of these arguments has Appellant articulated whether or not the rule is in dereliction of the Pennsylvania or United States Constitutions, or both. Moreover, Appellant does not posit which provisions of either Constitution are offended by the rule. Appellant simply states that the rule is unconstitutional and unreasonable. We remind Appellant that it is not the function of this Court to become Appellant's counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, we ...


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