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Home My WebLink About92-0039 CivilROBERT WARNER, JR., t/d/b/a FISHERMAN'S CATCH, Plaintiff v. AERO OIL COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY : NO. 39 EQUITY 1992 IN RE: DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE SHEELY, P.J. and OLER J ORDER OF COURT AND NOW, this 23►Jday of August, 1993, upon consideration of Defendant's Motion for Judgment on the Pleadings, and for the reasons stated in the accompanying Opinion, the Motion is GRANTED as it relates to Defendant's Counterclaim for $1,516.54 and DENIED as it relates to Plaintiff's Complaint. BY THE COURT, J Wesley Ole r. J. P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Ralph Oyler, Esq. 112 Baltimore Street Gettysburg, PA 17325 Attorney for Defendant :rc ROBERT WARNER, JR., t/d/b/a FISHERMAN'S CATCH, Plaintiff V. AERO OIL COMPANY, Defendant Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY NO. 39 EQUITY 1992 IN RE: DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE SHEELY P.J. and OLER J. OPINION AND ORDER OF COURT For disposition in the present equity action, arising out of the distraint by Defendant of Plaintiff's personal property on premises leased by Plaintiff from Defendant, is Defendant's Motion for Judgment on the Pleadings.' The motion is based on Defendant's contention that the failure of Plaintiff to respond to the allegations in Defendant's new matter and counterclaim entitles Defendant to entry of judgment in its favor. For the reasons stated in this Opinion, the motion will be granted in part and denied in part. FACTS The Plaintiff is Robert Warner, Jr., an adult individual trading and doing business as Fisherman's Catch.2 The Defendant is Aero Oil Company, a corporation doing business in Pennsylvania. ' This motion by Defendant was inadvertently titled Plaintiff's Motion for Judgment on the Pleadings. 2 Plaintiffs Complaint, paragraph 1; Defendant's Answer to Plaintiff's Complaint, New Matter, and Counterclaim, paragraph 1. 3 Plaintiff's Complaint, paragraph 2; Defendant's Answer to Plaintiff's Complaint, New Matter, and Counterclaim, paragraph 2. No. 39 Equity 1992 On or about May 9, 1984, Plaintiff and Defendant entered into a lease for premises on West High Street, Carlisle, Cumberland County, Pennsylvania, whereby Plaintiff leased the premises from Defendant for the purpose of operating a seafood business.¢ Plaintiff alleges that he installed various items of personal property, including kitchen equipment, dining equipment, freezers, and other items in the furtherance of his business.' On or about August 10, 1992, Plaintiff contends, and Defendant does not deny, Defendant changed the locks on the place of business and parked a vehicle in front of the door, intentionally preventing access by Plaintiff and barring him from removing the aforementioned personal property as well as produce and seafood associated with the business.' Plaintiff alleges, and Defendant admits, that he has thus been refused access to the aforementioned property.' Defendant avers by way of new matter and counterclaim, to which Plaintiff has 4 Plaintiffs Complaint, paragraph 3-4; Defendant's Answer to Plaintiff's Complaint, New Matter, and Counterclaim, paragraph 3-4 and Exhibit A, paragraph 4. ' Plaintiffs Complaint, paragraph 5. 6 Plaintiffs Complaint, paragraphs 6-7; Defendant's Answer to Plaintiffs Complaint, New Matter, and Counterclaim, paragraphs 6-7. Defendant alleges that Plaintiff appeared to have abandoned the leasehold and Defendant locked the door so the property would not be vandalized, that someone had attempted to remove various fixtures and Defendant wished to prevent this from happening, that Defendant wished to protect its lien on the property pursuant to paragraph 8 of the lease, and that the vast majority of the seafood had spoiled by said date. Id. ' Plaintiffs Complaint, paragraph 8; Defendant's Answer to Plaintiffs Complaint, New Matter, and Counterclaim, paragraph 8. RIO No. 39 Equity 1992 not replied, that a correct copy of the lease is attached to Defendant's pleading;' that Plaintiff failed to pay rent for the months of May, June, July, and August, 1992, in the total amount of $1,516.54;9 that paragraph 9 of the lease entitles Defendant to distrain for rent due and gives Defendant a "valid [first] lien upon the property which is the subject of the within dispute";10 and that the lease provides that no property shall be removed from the leasehold until all monies due Defendant are paid." In Plaintiff s Complaint, he seeks return of his personal property and damages arising out of the closure of his business.12 In Defendant's new matter and counterclaim, it seeks judgment in its favor on Plaintiff's claim and an award in the amount of the unpaid rent, respectively." Defendant's Motion for Judgment on the Pleadings was argued on July 14, 1993, and is now ready for disposition. 11. ' Defendant's Answer to Plaintiff's Complaint, New Matter, and Counterclaim, paragraph 9 Defendant's Answer to Plaintiff"s Complaint, New Matter, and Counterclaim, paragraphs 17, 21. io Defendant's Answer to Plaintiff's Complaint, New Matter, and Counterclaim, paragraph 12-13, and Exhibit A, paragraph 9. " Defendant's Answer to Plaintiff's Complaint, New Matter, and Counterclaim, paragraph 16 and Exhibit A, paragraph 18. 12 Plaintiff's Complaint, paragraphs 9-10, claim for relief. 13 Defendant's Answer to Plaintifrs Complaint, New Matter, and Counterclaim, claims for relief. M No. 39 Equity 1992 DISCUSSION It is well settled in Pennsylvania that a motion for judgment on the pleadings should be granted only in cases where there are no issues of material fact and which are so free from doubt that a trial would clearly be a fruitless exercise. 3 Goodrich Amram 2d, §1034(b):2 (1991). Additionally, where the rules of law are not clear, the court should be "especially wary" of granting a motion for judgment on the pleadings. Id.; Jefferies v. Hoffman, 417 Pa. 1, 5 n.1, 207 A.2d 774, 776 n.1 (1965). "A motion for judgment on the pleadings is in the nature of a demurrer in which all of the opposing parties' well -pleaded allegations are viewed as true, but only those facts specifically admitted by the objecting party may be considered against him." Ithier v. City of Philadelphia, 137 Pa. Commw. 103, 105, 585 A.2d 564, 565 (1991). "In ruling on a motion for judgment on the pleadings, we must limit our review of the facts to those appearing in the pleadings themselves, keeping in mind that the moving party admits the truth of all allegations of his adversary and the untruth of his own allegations that have been denied." Kline v. Pennsylvania Mines Corp., 120 Pa. Commw. 7, 9, 547 A.2d 1276, 1277 (1988). Whether or not averments in pleadings are admitted by the failure of the opposing party to respond is governed by Pennsylvania Rule of Civil Procedure 1029. "Averments in a pleading to which a responsive pleading is required are admitted when 4 No. 39 Equity 1992 not denied specifically or by necessary implication." Pa. R.C.P. 1029(b). However, "[a]verments in a pleading to which no responsive pleading is required shall be deemed to be denied." Pa. R.C.P. 1029(d). In this regard, it has been held that "failure to file a responsive pleading where required results only in the admission of factual averments, not legal conclusions." Landis v. City of Philadelphia, 245 Pa. Super. 514, 518, 369 A.2d 746, 748 (1976). Where an allegation is not an averment of fact, a responsive pleading is not required. In Re Estate of Roart, 390 Pa. Super. 38, 45, 568 A.2d 182, 186 (1989), allocatur denied, 527 Pa. 588, 588 A.2d 510 (1990). To determine whether averments in a pleading require a response, a court must decide whether they are fact -based or conclusions of law. Gotwalt v. Dellinger, 395 Pa. Super. 439, 445, 577 A.2d 623, 626 (1990). In making this determination, the court is accorded a large degree of discretion. Id. "A motion for judgment on the pleadings will be denied ... when averments in new matter which were not denied were merely conclusions of law ...." 6 Standard Pennsylvania Practice 2d, §31.11, at 160-61 (1982). In this Commonwealth, distraint of personal property by a landlord for rent in arrears is statutorily provided for in Pennsylvania's Landlord and Tenant Act of 1951. Act of April 6, 1952, P.L. 69, as amended, 68 P.S. §§250.101 et seq. (Main Vol. & 1993 Supp.). The Act provides that "[p]ersonal property located upon premises occupied by a tenant shall ... be subject to distress for any rent reserved and due." Id., §302, 68 P.S. §250.302. It further provides that "[n]otice in writing of such distress, stating the 5 No. 39 Equity 1992 cause of such taking, specifying the date of the levy and the personal property distrained ... and the amount of rent in arrears, shall be given within five days after making the distress. Id. However, under certain circumstances courts have held distraint violative of the United States Constitution's guarantee of due process. See Friedman, Pennsylvania Landlord -Tenant Law and Practice §2.5(t) (1988); Ragin v. Schwartz, 393 F. Supp. 152 (W.D. Pa. 1975); Litton Business Systems, Inc. v. Paul L. Esperance, Inc., 387 F. Supp. 1265 (E.D. Pa. 1975).14 An application of the foregoing law to the present case results in a conclusion that Defendant's Motion for Judgment on the Pleadings must be sustained in part and denied in part. With respect to Defendant's Counterclaim for past rent, Plaintiff has, by his failure to file a reply, admitted the allegation of a debt to Defendant in the amount of $1,516.54 for such arrearage." On this subject, since no material fact is in dispute, and since the law is not in doubt, and the motion as it pertains to the counterclaim will be granted. 14 See also Grove v. Fox, 359 F. Supp. 1164, 1168 (E.D. Pa. 1972), wherein the District Court held that the distraint provisions in the Landlord -Tenant Act were facially invalid because under them a landlord was permitted "to levy on the property on a tenant's premises without prior notice or hearing in violation of the Fourteenth Amendment's due process clause." The decision in Grove was vacated on other grounds, however. Grove v. Fox, 496 F.2d 1152 (3d Cir. 1974). " This point was conceded by Plaintiff's counsel in argument. See also Brief of Plaintiff in Opposition to a Motion for Judgment on the Pleadings, at 8. D No. 39 Equity 1992 With respect to Defendant's defense, premised upon his proper exercise of distraint, to Plaintiff's Complaint, several factors militate against entering judgment on the pleadings against Plaintiff. The state of the law in the area of distraint, the legal nature of Defendant's averments pertaining to the validity of its alleged lien on Plaintiff s personalty, and the absence of facts as to surrounding circumstances, such as any post -seizure notice, result in the Court's inability to conclude at this stage that a trial would be a fruitless exercise. For this reason, Defendant's motion as it pertains to Plaintiff's Complaint will be denied. ORDER OF COURT AND NOW, this day of August, 1993, upon consideration of Defendant's Motion for Judgment on the Pleadings, and for the reasons stated in the accompanying Opinion, the Motion is GRANTED as it relates to Defendant's Counterclaim for $1,516.54 and DENIED as it relates to Plaintiff's Complaint. P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff BY THE COURT, J. Wesley Oler, Jr. J. 7 No. 39 Equity 1992 Ralph Oyler, Esq. 112 Baltimore Street Gettysburg, PA 17325 Attorney for Defendant :rc