King, T. v. Altman, J. ( 2021 )

J-A01020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TIFFANY KING : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN F. ALTMAN, ESQUIRE : No. 491 EDA 2020
AND THE ALTMAN LAW FIRM, LLC :
Appeal from the Order Entered January 9, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 181203109
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY OLSON, J.: FILED: MAY 28, 2021
Appellant, Tiffany King, appeals from the order entered on January 9,
2020 in the Civil Division of the Court of Common Pleas of Philadelphia County
that granted a motion for judgment on the pleadings filed on behalf of
Appellees, Jonathan F. Alman, Esq. and the Altman Law Firm, LLC and
dismissed her claims with prejudice. After careful review, we affirm.
The trial court summarized the relevant procedural facts as follows.
[Appellant commenced] this action on December 27, 2018[] by
filing a complaint against [Appellees]. Following a series of
preliminary objections and revisions of the complaint, Appellant
filed a second amended complaint against Appellees on April 22,
2019. Appellees filed preliminary objections to [Appellant’s]
second amended complaint. On July 30, 2019, [the trial court]
overruled Appellees’ preliminary objections and ordered them to
file an answer to Appellant’s second amended complaint.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellees filed an answer to Appellant’s second amended
complaint, with new matter, on August 23, 2019. On September
11, 2019, Appellant filed a reply to Appellees’ new matter.
[Appellant stated the following in paragraph 203 of her answer to
Appellees’ new matter:
203. Denied. Answering plaintiff hereby incorporates by
reference all of the (factual) allegations of her second
amended complaint, set forth in paragraphs 1 through and
including 202, as though the same were more fully set forth
herein at length.
Appellant’s Reply to Appellees’ New Matter, 9/11/19.
Thereafter, Appellant’s reply purported to answer paragraphs
204-271 of Appellees’ new matter using the exact same language
in each response and changing only the paragraph number for
each of the 67 paragraphs. Appellant’s reply stated as follows:]
204-271. Denied. The allegations contained in paragraphs
204-271 of Appellees’ new matter constitute conclusions and
conclusions of law, to which no responsive pleading is
required, pursuant to the Pennsylvania Rules of Civil
Procedure. Strict proof thereof is demanded at the time of
trial, if relevant.
Appellant’s Reply to Appellees’ New Matter, 9/11/19.
On December 16, 2019, Appellees filed a motion for judgment on
the pleadings. [The trial court] granted Appellees’ motion and
dismissed Appellant’s claims with prejudice by order [entered
January 9, 2020]. On January 16, 2020, Appellant filed a motion
for reconsideration[.] On January 17, 2020, [the trial court]
issued an order denying Appellant’s motion for reconsideration
and stating that Appellant failed to file a proper reply to Appellees’
[motion for judgment on the pleadings].
On January 30, 2020, Appellant filed a notice of appeal [from the
order entered on January 9, 2020]. On February 4, 2020, [the
trial court] ordered Appellant to file a concise statement of [errors]
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed a timely [concise statement] on February 24, 2020. [The
trial court issued its Rule 1925(a) opinion on August 6, 2020].
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Trial Court Opinion, 8/6/20, at 1-2 (certain capitalization omitted).
Appellant raises the following claims in her brief:
Whether the trial [court] erred and abused [its] discretion in
determining that [Appellant] did not respond to nor answer all of
the factual averments of [Appellees’] new matter pursuant to
Pa.R.C.P. 1029(a) and (b)[?]
Whether the trial [court] erred and abused [its] discretion in
determining that [Appellant] did not provide specific denials to
disputed factual allegations in [Appellees’] new matter, when in
fact [Appellant] did so in paragraph 203 of her answer to
[Appellees’] new matter, in conformance with Pa.R.C.P.
1019(g)[?]
Whether the trial [court] erred and abused [its] discretion in
failing to consider that [Appellant], in paragraph 203 of her
answer to Appellees’ new matter provided specific denials to
disputed factual allegations in [Appellees’] new matter by
specifically incorporating by reference all of the factual allegations
set forth in paragraphs 1 through and including 202 of
[Appellant’s] second amended complaint as though the same were
more fully set forth in [Appellant’s] answer to [Appellees’] new
matter pursuant to Pa.C.P. 1019(g)[?]
Whether the trial [court] erred and abused [its] discretion by
violating Pa.R.C.P. 126 in granting [Appellees’] motion for
judgment on the pleadings pursuant to Pa.R.C.P. 1034 merely
because [Appellant] voluntarily chose not to respond to the
motion [rather than] the trial [court] deciding [the] motion on the
merits[?]
Whether the trial [court] erred and abused [its] discretion,
pursuant to Pa.R.C.P. 126, in failing to consider the prejudice to
[Appellant] in granting [Appellees’] motion for judgment on the
pleadings, pursuant to Pa.R.C.P. 1034, as [Appellant’s] second
amended complaint was dismissed with prejudice[?]
Whether the trial [court] erred and abused [its] discretion in
granting [Appellees’] motion for judgment on the pleadings,
pursuant to [the order entered on January 9, 2020?]
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Appellant’s Brief at 7-9 (some capitalization omitted).1
The standard we apply when reviewing an order granting a motion for
judgment on the pleadings is as follows:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides that
“after the pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for judgment on
the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the
pleadings is similar to a demurrer. It may be entered when there
are no disputed issues of fact and the moving party is entitled to
judgment as a matter of law.
Appellate review of an order granting a motion for judgment on
the pleadings is plenary. The appellate court will apply the same
standard employed by the trial court. A trial court must confine
its consideration to the pleadings and relevant documents. The
court must accept as true all well pleaded statements of fact,
admissions, and any documents properly attached to the
pleadings presented by the party against whom the motion is filed,
considering only those facts which were specifically admitted.
We will affirm [an order granting judgment on the pleadings] only
when the moving party's right to succeed is certain and the case
is so free from doubt that the trial would clearly be a fruitless
exercise.
Kote v. Bank of New York f/k/a The Bank of New York, 169 A.3d 1103,
1107 (Pa. Super. 2017), appeal denied, 182 A.3d 434 (Pa. 2018).
To recount the relevant background, in response to Appellant’s second
amended complaint, Appellees filed an answer and new matter on August 28,
2019. On September 11, 2019, Appellant filed her reply to Appellees’ answer
____________________________________________
1 We have re-ordered the sequence of Appellant’s claims to facilitate our
review.
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and new matter. Paragraph 203 of Appellant’s reply incorporated by reference
all factual allegations set forth in paragraphs one through 202 of Appellant’s
second amended complaint. In addition, Appellant’s reply answered
paragraphs 204 through 271 of Appellees’ new matter by averring, with the
exact same text repeated 67 times, that each corresponding numbered
paragraph in Appellees’ new matter “constitute[d] conclusions and conclusions
of law to which no responsive pleading [was] required pursuant to the
Pennsylvania Rules of Civil Procedure. Strict proof is demanded at the time
of trial, if relevant.” Appellant’s Brief at 14.
Appellees moved for judgment on the pleadings on December 16, 2019
and Appellant did not respond. The trial court determined that the factual
averments and defenses asserted in Appellees’ new matter called for specific
denials under Pa.R.C.P. 1029. The court also determined that Appellant’s
reply only denied Appellees’ allegations generally and that her general denials
should be deemed admissions in the absence of a specific responsive pleading.
As such, the trial court granted Appellees’ motion for judgment on the
pleadings and, subsequently, denied Appellant’s motion for reconsideration.
Because Appellant’s first three claims are closely related, we shall
address them in the same discussion. On appeal, Appellant argues that the
trial court erred and abused its discretion in granting Appellees’ motion for
judgment on the pleadings. Specifically, Appellant contends the trial court
wrongly determined that she failed to respond to the factual averments
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leveled in Appellees’ answer and new matter in accordance with Rule 1029.
Appellant claims the trial court should have “considered and weighed” all
factual allegations set forth at paragraphs one through 202 of her second
amended complaint, which Appellant incorporated by reference into her reply
to Appellees’ answer and new matter. See Appellant’s Brief at 20. Appellant
maintains that her incorporation of the factual allegations of her second
complaint “constituted a proper, specific and valid responsive denial with
sufficient specificity commensurate with the dictates and requirements of
Pa.R.C.P. 1029(a) and (b).” Id. at 21. We disagree.
Rule 1029 of our Rules of Civil Procedure address denials and the effect
of a denial in a responsive pleading. It provides:
(a) A responsive pleading shall admit or deny each averment of
fact in the preceding pleading or any part thereof to which it is
responsive. A party denying only a part of an averment shall
specify so much of it as is admitted and shall deny the remainder.
Admissions and denials in a responsive pleading shall refer
specifically to the paragraph in which the averment admitted or
denied is set forth.
(b) Averments in a pleading to which a responsive pleading is
required are admitted when not denied specifically or by
necessary implication. A general denial or a demand for proof,
except as provided by subdivisions (c) and (e) of this rule, shall
have the effect of an admission.
(c) A statement by a party that after reasonable investigation the
party is without knowledge or information sufficient to form a
belief as to the truth of an averment shall have the effect of a
denial.
Note: Reliance on subdivision (c) does not excuse a failure to
admit or deny a factual allegation when it is clear that the
pleader must know whether a particular allegation is true or
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false. [See Cercone v. Cercone, 386 A.2d 1 (Pa. Super.
1978)].
(d) Averments in a pleading to which no responsive pleading is
required shall be deemed to be denied.
(e) In an action seeking monetary relief for bodily injury, death or
property damage, averments in a pleading to which a responsive
pleading is required may be denied generally except the following
averments of fact which must be denied specifically:
(1) averments relating to the identity of the person by whom
a material act was committed, the agency or employment of
such person and the ownership, possession or control of the
property or instrumentality involved;
(2) if a pleading seeks additional relief, averments in support
of such other relief; and
(3) averments in preliminary objections.
Pa.R.C.P. 1029.
Here, the trial court concluded that Appellees’ answer and new matter
set forth factual averments and detailed defenses that called for specific
denials under Pa.R.C.P. 1029(e). The court explained:
[Appellees’ answer and new matter set forth factual averments
and specific defenses that pertained to the agency or employment
of a person and the ownership, possession or control of the
property or instrumentality involved in the underlying action. As
such, the allegations called for a specific responsive pleading
under Rule 1029]. Appellant, however, only denied these
allegations generally and labeled the averments “conclusions and
conclusions of law to which no responsive pleading was required.”
[Appellant’s Reply to Answer and New Matter, 9/11/19, at para.
2014-270. Rule 1029(c) does] not excuse a failure to admit or
deny a factual allegation when it is clear that the pleader must
know whether a particular allegation is true[. See Pa.R.C.P. 1029;
Cercone v. Cercone, 386 A.2d 1 (Pa. Super. 1978)]. Such
responses by Appellant were not sufficient, and at best only
constituted a general denial of Appellees’ averments. These
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improper denials were deemed admitted because a specific
responsive pleading was required. [See Pa.R.C.P. 1029(b).] As
such, th[e trial c]ourt found it appropriate to grant Appellees’
motion for judgment on the pleadings. Accordingly, Appellant’s
claim should be dismissed.
Trial Court Opinion, 8/6/20, at 7-8.
The trial court not only determined that Appellees’ answer and new
matter warranted specific denials under Pa.R.C.P. 1029, it also concluded that
Appellant’s response to Appellee’s answer and new matter was insufficient,
notwithstanding her effort to incorporate portions of her second amended
complaint by reference. Here, the court observed:
On appeal, Appellant claims that th[e trial c]ourt erred because
Appellant provided specific denials to disputed factual allegations
[in her reply to Appellees’ answer and new matter] in conformance
with Pa.R.C.P. 1019(g). Appellant also claims she incorporated by
reference all factual allegations set forth in paragraphs [one]
through and including 202 of Appellant’s second amended
complaint pursuant to Pa.R.C.P. 1019(g). Appellant’s claim must
fail. [] Appellant did not properly respond to Appellees’ [answer]
and new matter, and while she may have incorporated portions of
her second amended complaint by reference, her [r]eply to
Appellees’ [answer] and new matter did not contain sufficient
denials of disputed factual allegations or Appellees’ claimed
defenses. Accordingly, Appellant’s claims should be dismissed.
Under Pennsylvania Rule of Civil Procedure 1019(g):
(g) Any part of a pleading may be incorporated by reference
in another part of the same pleading or in another pleading
in the same action. A party may incorporate by reference any
matter of record in any State or Federal court of record whose
records are within the county in which the action is pending,
or any matter which is recorded or transcribed verbatim in
the office of the prothonotary, clerk of any court of record,
recorder of deeds or register of wills of such county.
Pa.R.C.P. 1019(g).
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Here, while it is true Appellant successfully complied with
Pa.R.C.P. 1019(g), and successfully incorporated by reference
specific portions of her complaint, Appellant still failed to
specifically deny or otherwise sufficiently respond to the
averments raised in Appellees’ new matter. [G]iven the nature of
the averments raised in Appellees’ new matter and defenses
therein specific denials or admissions were required by Pa.R.C.P.
1029(a), (b), and (e). These denials could not be found in
Appellant’s [r]eply to Appellees’ [answer] and new matter or in
[Appellant’s] second amended complaint. As such, consistent
with Pa.R.C.P. 1029 and other applicable court rules, [the trial
c]ourt found it appropriate to grant Appellees’ motion for
judgment on the pleadings. Accordingly, Appellant’s claim should
be dismissed.
Trial Court Opinion, 8/6/20, at 8-9 (certain footnotes omitted).
Based upon our own review of the pleadings submitted by the parties,
we concur with the trial court’s assessment. Appellees’ answer and new
matter alleged facts and raised defenses that called for specific denials.
Rather than come forward with a detailed response which met and countered
Appellees’ averments, Appellant incorporated voluminous portions of her
second amended complaint. Although Appellant is correct that the rules
permit incorporation of pleadings by reference, they do not permit a party to
shift her burden of proffering specific denials onto the trial court and claim
that the court had an obligation to sift through voluminous prior pleadings to
determine whether, in the court’s view, specific averments raised by way of
new matter were met with specific denials set forth in previous filings.
Instead, the rules contemplate that a pleading party is entitled to notice of
what facts, in his opponent’s view, counter the averments set forth in new
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matter. For these reasons, we conclude that Appellant’s first three claims lack
merit.
In her fourth claim, Appellant argues the trial court erred and abused
its discretion by granting Appellees’ motion for judgment on the pleadings
because Appellant chose not to respond to the motion and not because the
court considered the motion on its merits. This claim fails.
The trial court offered the following explanation in response to
Appellant’s claim, which we agree with in its entirety.
Here, [the court] reviewed [all of] Appellant’s [responsive
pleadings in their entirety], including both Appellant’s [successful
incorporation of her] second amended complaint [into her reply to
new matter], despite Appellant[‘s failure to] file an answer to
Appellees’ motion for judgment on the pleadings, as required by
[the local rules]. After comprehensive review of all relevant
pleadings and also the factual record in this case, [the trial c]ourt
was unable to find sufficient information such that it could
coherently ascertain the basis or grounds for Appellant’s general
denials contained in her reply to new matter. As noted previously,
Appellees raised complete defenses and specific factual averments
in their new matter and motion for judgment on the pleadings.
Appellant is trying to use this appeal to get a second bite at the
apple, after failing to sufficiently reply to Appellees’ new matter,
and then failing to file an answer to Appellees’ motion for
judgment on the pleadings. Appellant had [20] days to respond
to Appellees’ motion but chose not [to do so]. Now Appellant
seeks to use this Appeal to argue what [she failed to raise
previously]. After careful consideration of Appellees’ contentions,
the factual record, as well as the relevant pleadings, [the trial
c]ourt granted Appellees’ motion for judgment on the pleadings.
[The trial c]ourt did so after reviewing the entire record[, including
the pleadings,] on the merits, not simply to penalize Appellant for
failing to respond to Appellees’ motion for judgment. Accordingly,
Appellant’s claim should be dismissed.
Trial Court Opinion, 8/6/20, at 10-11.
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Our own review of the certified record, including the pleadings
introduced by the parties, leads us to conclude that the trial court did not
grant Appellees’ motion for judgment on the pleadings simply to penalize
Appellant for her failure to respond to Appellant’s motion. Because the trial
court neither erred nor abused its discretion, we conclude that Appellant’s
claim merits no relief.
In her fifth claim, Appellant asserts that the trial court abused its
discretion in granting Appellees’ motion for judgment on the pleadings
because the court failed to consider potential prejudice to Appellant. This
claim also merits no relief. The record reflects that the trial court granted
Appellees’ motion for judgment on the pleadings only after it conducted a
thorough review of the factual record and the relevant pleadings in this
matter. Because the entry of judgment on the pleadings was supported by
the record and entirely consistent with Pa.R.C.P. 1034, we perceive no error
or abuse of discretion that entitles Appellant to relief.
In her sixth and final claim, Appellant alleges generally that the trial
court erred and abused its discretion in granting Appellees’ motion for
judgment on the pleadings. For each of the reasons set forth above, we find
no merit in this contention. Accordingly, we hold that Appellant is not entitled
to relief.
Judgment affirmed.
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Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/21
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