Lysaght, G. v. Krekstein, D. ( 2017 )

J-A30028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GARY M. LYSAGHT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEBORAH A. KREKSTEIN
Appellant No. 736 MDA 2016
Appeal from the Order Entered April 14, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2015-CV-03422-EQ
BEFORE: BOWES, OLSON and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 14, 2017
Appellant, Deborah A. Krekstein, appeals from the order entered on
April 14, 2016. We vacate and remand.
On April 30, 2015, Gary M. Lysaght (hereinafter “Mr. Lysaght”)
instituted the current action by filing a complaint seeking the partition of real
property. Within Mr. Lysaght’s amended complaint, Mr. Lysaght averred
that he and Appellant married on September 13, 1986 and later purchased
their marital residence at 1350 Fishing Creek Valley Road, in Harrisburg,
Pennsylvania. Mr. Lysaght’s Amended Complaint, 6/9/15, at ¶¶ 3-4. The
parties divorced on July 10, 2014. Id. at ¶ 5.
As Mr. Lysaght averred, he and Appellant “executed a Marital
Settlement Agreement [on May 9, 2014; therein, the parties] agreed to sell
the marital residence . . . and evenly divide the net proceeds.” Id. at ¶ 6.
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According to Mr. Lysaght, despite being on the market for over one year, the
marital property has not sold and Appellant will not agree to a lower asking
price. Id. at ¶¶ 7-13. Therefore, Mr. Lysaght requested that the trial court
order the partition of the marital property. Id. at ¶ 19.
Following the overruling of Appellant’s preliminary objections,
Appellant filed a timely answer to Mr. Lysaght’s complaint. See Appellant’s
Answer, 11/24/15, at 1-3. Within Appellant’s answer, Appellant denied that
the trial court should order the partition of the property and Appellant
requested that the trial court “dismiss [Appellant’s] amended complaint for
the partition of real property.” Id. at ¶ 19 and “Wherefore” Clause (some
internal capitalization omitted).
On April 14, 2016, the trial court sua sponte ordered the partition of
the marital residence – based only upon the complaint and answer and
despite there not being any pending motion for a judgment on the pleadings.
See Trial Court Order, 4/14/16, at 1.
Appellant filed a timely notice of appeal from the partition order. See
Pa.R.A.P. 311(a)(7) (“[a]n appeal may be taken as of right and without
reference to Pa.R.A.P. 341(c) from . . . [a]n order directing partition”).
Appellant raises one claim on appeal:
Whether the trial court erred as a matter of law in granting
[Mr. Lysaght’s] request for partition of real property where
there was no default, admission or hearing held in
contravention of Pa.R.C.P. 1557?
Appellant’s Brief at 2.
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Within Appellant’s brief to this Court, Appellant claims that the trial
court erred when it “sua sponte entered an order for partition on the
pleadings [even though] neither party had filed a motion requesting the
same.” Id. at 4. We agree.
Pennsylvania Rule of Civil Procedure 1551 declares: “[e]xcept as
otherwise provided in this chapter, the procedure in an action for the
partition of real estate shall be in accordance with the rules relating to the
civil action.” Pa.R.C.P. 1551. Moreover, regarding judgment on the
pleadings, Pennsylvania Rule of Civil Procedure 1034 provides:
(a) After the relevant pleadings are closed, but within such
time as not to unreasonably delay the trial, any party may
move for judgment on the pleadings.
(b) The court shall enter such judgment or order as shall be
proper on the pleadings.
Pa.R.C.P. 1034.
As the Pennsylvania Supreme Court has held, “[a] court is without
power under . . . Rule 1034 to enter judgment [on the pleadings] on its own
motion.” Paulish v. Bakaitis, 275 A.2d 318, 322 (Pa. 1971), limited by
Bensalem Township Sch. Dist. v. Commonwealth, 544 A.2d 1318, 1321
n.2 (Pa. 1988) (“In Paulish v. Bakaitis, [] this Court held that judgment on
the pleadings cannot be entered sua sponte. The opinion admits of the
possible interpretation that a court cannot enter judgment in favor of a non-
moving party. Today, we expressly disapprove of that interpretation, and
limit the Courts’ holding in Paulish to the effect that a court must at least
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be presented with a motion by one of the parties before it can
consider the sufficiency of the pleadings”) (emphasis added); see also
3 GOODRICH AMRAM 2d § 1034(b):19 (“A court is without power to enter a
judgment on the pleadings on its own motion. One or both of the parties
must file a motion for judgment on the pleadings before the court can
exercise its power to grant judgment on the pleadings”) (internal footnotes
omitted).
In the case at bar, the trial court sua sponte entered judgment on the
pleadings in favor of Mr. Lysaght, on the court’s own motion. This is clearly
erroneous and requires that we vacate the trial court’s order and remand for
further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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