Ramsey v. Taylor , 447 Pa. Super. 202 ( 1995 )

HOFFMAN, Judge:

This is an appeal from a February 10,1995 order granting appellee’s motion for judgment on the pleadings, directing certain real estate owned by appellant and appellee to be partitioned. Appellant, Pamela Taylor, now raises the following issue for our review:

DOES A COURT COMMIT AN ERROR OF LAW IN GRANTING A MOTION FOR JUDGMENT ON THE PLEADINGS WHEN SUFFICIENT MATERIAL FACTS WERE PLEADED TO SUPPORT DEFENSES TO THE CLAIM AND WHERE THE COURT APPLIED THE STANDARD FOR MOTION FOR SUMMARY JUDGMENT INSTEAD OF THE STANDARD FOR MOTION FOR JUDGMENT ON THE PLEADINGS?

Appellant’s Brief at 3. For the following reasons, we vacate the order and remand for continuation of the proceedings.

In 1991, appellant and appellee, James Ramsey, entered into an agreement to form The Milk House, Inc., a retail grocery store corporation. Appellant advanced money to purchase the real estate and inventory for the store, and appellee was expected to contribute his time, know-how, and expertise to the business. Appellant received 51% ownership of the corporation and appellee received 49% ownership. After several months, appellant became dissatisfied with appellee’s performance on behalf of the corporation, and caused appellee to be terminated as president, secretary, and employee of the corporation at a special meeting of the board of directors on November 26, 1991.

As a result of his dismissal, appellee filed a six count eivil complaint on March 18, 1992, seeking various forms of relief. Thereafter, on December 28, 1994, after both sides had filed amended pleadings, appellee filed a motion for judgment on the pleadings¹ for one of the counts, seeking a partition of the real estate in question. On February 10, 1995, the trial judge granted appellee’s motion and directed the partition. With the remainder of the counts still pending, appellant filed this timely interlocutory appeal.²

Appellant now argues that the trial court erred in granting appellee’s motion because the trial judge mistakenly treated appellee’s motion for judgment on the pleadings as a motion for summary judgment. Moreover, appellant argues that she pleaded material facts sufficient to support defenses to appel-lee’s motion on the pleadings.

Preliminarily, we note that our review of a trial court judgment on the pleadings is plenary, and we are to apply the same standard as employed by the trial court. McAl-lister v. Millville Mut. Ins. Co., 438 Pa.Super. 330, 334, 640 A.2d 1283, 1285 (1994), appeal denied, 539 Pa. 653, 651 A.2d 540 (1994). That standard requires us to ascertain that no genuine issues of fact exist in the pleadings alone and that trial would be a fruitless exercise before we can affirm a judgment on the pleadings. In re Estate of Blom, 434 Pa.Super. Ill, 117, 642 A.2d 498, 501 (1994), appeal denied, McCrorie v. Lucas, 539 Pa. 694, 653 A.2d 1232 (1994). See Harvey v. Hansen, 299 Pa.Super. 474, 481 n. 7, 445 A.2d 1228,1231 n. 7 (1982) (disposition of motion for judgment on pleadings limited exclusively to pleadings themselves). Therefore, even if the trial judge mistakenly believed appellee filed a motion for summary judgment, such mistake is inconsequential, as we are able to apply the trial court standard and review the pleadings for ourselves.

In the instant case, the trial judge could only properly order a partition on the pleadings if he found appellant to have defaulted or admitted to appellee’s right to partition. Pa.R.Civ.P. 1557 (partition can only be granted after default, admission, hearing, or trial). Although appellant essentially admitted that she and appellee were listed on the deed for the property as tenants in common, she qualified that admission in her answer by raising equitable defenses to appellee’s right to partition the property. Specifically, appellant alleged that she and appellee had agreed that she would retain all rights in the property until she was reimbursed for all monies advanced, and that appellee’s failure to perform under this agreement precluded appellee from claiming rights in the property. Defendant’s Answers, ¶ 7, ¶ 10(b). We do not find that appellant’s answers amount to a “default” or “admission” for purposes of the partition rules of the Rules of Civil Procedure. Pa. R.Civ.P. 1557. See Cercone v. Cercone, 254 Pa.Super. 381, 391, 386 A.2d 1, 6 (1978) (court should examine pleadings as a whole to determine whether defendant has admitted material facts of complaint). Moreover, without the benefit of a recorded hearing or trial, we cannot determine whether appellant’s equitable defenses have any merit.³ See Lombardo v. DeMarco, 350 Pa.Super. 490, 501 n. 5, 504 A.2d 1256, 1261 n. 5 (1985) (in a partition action, court examined appellant’s equitable defenses, and explained that entire record must be examined in deciding whether to grant partition). Thus, because appellant has raised material issues in its answer that cannot be resolved from the pleadings alone, we are constrained to vacate the order for partition at this stage of the proceedings.

Accordingly, we vacate the order of the trial judge and remand for proceedings consistent with this opinion.

Vacated and remanded. Jurisdiction relinquished.

CIRILLO, J., filed a dissenting opinion.

1 . Pursuant to Pa.R.Civ.P. 1034.

2 . This appeal is properly before us pursuant to Pa.R.A.P. § 311 (a)(6), which allows interlocutory appeals as of right from orders directing partition. See Doppler v. Doppler, 393 Pa.Super. 600, 605-07, 574 A.2d 1101, 1105 (1990) (trial court order appealable when legal entitlement to one-half interest in realty in dispute).

3 . Although the trial judge noted that an oral hearing was held on February 9, 1995 before he issued his order, these proceedings were not recorded and therefore not available for our review.