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06/10/97 ALAN FOX v. POCONO SPRINGS CIVIC

COMMONWEALTH COURT OF PENNSYLVANIA


June 10, 1997

ALAN FOX, APPELLANT
v.
POCONO SPRINGS CIVIC ASSOCIATION, INC.

Appealed From No. 1 Civil 1996. Common Pleas Court of the County of Wayne. CONWAY, President Judge.

Before: Honorable James Gardner Colins, President Judge, Honorable Doris A. Smith, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY President Judge Colins.

The opinion of the court was delivered by: Colins

OPINION BY PRESIDENT JUDGE COLINS

FILED: June 10, 1997

The matter before the Court is limited to the pleadings and the procedural rules by which they are governed. It comes to this Court by way of an appeal filed by Alan Fox (Fox or appellant). Fox appeals the order of the Court of Common Pleas of the 22nd Judicial District, Wayne County, granting the Motion of Pocono Springs Civic Association (appellee) for Judgment on the Pleadings or in the alternative a Motion for Summary Judgment. Appellant's complaint sought to have the trial court declare that appellant was not the owner of certain real property located within the Pocono Springs Development. We affirm.

The pleadings filed with the court of common pleas are as follows:

January 2, 1996

Fox filed Complaint

February 14, 1996

Pocono Springs filed an Answer & New Matter with a Notice to Plead

May 24, 1996

Pocono Springs filed Motion for Judgment on the Pleadings or in the alternative Summary Judgment

June 28, 1996

Fox filed an Answer in Opposition to the Motions with Brief in Support thereof

June 28, 1996

Pocono Springs filed a Brief in Support of its Motion for Judgment on the Pleadings or in the alternative Summary Judgment

After the submission of briefs and oral argument, common pleas court, relying on Edmond v. Southeastern Pennsylvania Transportation Authority, 651 A.2d 645 (Pa. Commw. 1994), deemed admitted the averments set forth in appellee's new matter. Finding the averments were affirmative defenses authorizing judgment on the pleadings, *fn1 common pleas court granted the motion filed by appellee. *fn2 This appeal followed.

In an appeal from a motion for judgment on pleadings, this Court's scope of review is limited to determining whether the lower court committed an error of law or an abuse of discretion. Brelish v. Clarks Green Borough, 146 Pa. Commw. 232, 604 A.2d 1235 (Pa. Commw.), petition for allowance of appeal denied, 531 Pa. 656, 613 A.2d 561 (1992). In conducting its inquiry, the court should confine itself to the pleadings themselves and any documents or exhibits properly attached thereto.

Appellant's sole argument is that the entry of judgment on pleadings was improper because appellee failed to file a notice of intention to take a default judgment. After reviewing appellant's argument in support of that position, and noting the absence of any authority for the position adopted, we conclude that appellant misconstrued the nature of the proceedings in common pleas court.

Default judgment is proper where a party fails to answer a pleading. Pa. R.C.P. No. 237.1. However, notice serves no purpose when a judgment is entered by the court. See Comments to Pa. R.C.P. No. 237.1. When considering a motion for judgment on pleadings, Pa. R.C.P. No. 1034 (Rule 1034) must be consulted. Rule 1034 provides that upon the close of the pleadings any party may move for judgment on the pleadings; the court shall enter such judgment or order as shall be proper on the pleadings. Appellant received notice of the motion for judgment on pleadings, filed a brief in opposition to said motion, and was given opportunity to present oral argument on his opposition to the motion. Before this Court, appellant's only challenge to common pleas court's order was based on appellee's failure to file notice of entry of default judgment pursuant to Pa. R.C.P. No. 237.1. Said notice is not required; therefore, appellant's challenge has no merit.

Accordingly, the order of the Court of Common Pleas of the 22nd Judicial District, Wayne County, is affirmed.

JAMES GARDNER COLINS, President Judge

ORDER

AND NOW, this 10th day of June, 1997, the order of the Court of Common Pleas of Wayne County in the above-captioned matter is affirmed.


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