J-A23024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MONTOUR HEIGHTS COUNTRY CLUB, : IN THE SUPERIOR COURT OF
A PENNSYLVANIA NON-PROFIT : PENNSYLVANIA
CORPORATION :
:
:
v. :
:
:
MICHAEL P. CARVELLI AND JODY L. : No. 344 WDA 2018
CRISSMAN, ADULT INDIVIDUALS :
:
Appellants :
Appeal from the Judgment Entered February 12, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. AR-16-005210
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 21, 2018
This is an appeal from the grant of judgment on the pleadings in favor
of Plaintiff-Appellee, Montour Heights Country Club (“Montour”), in a collection
action against Appellants Michael P. Carvelli and Jody L. Crissman. We affirm.
The factual and procedural history is as follows: Appellant Carvelli
applied for membership to Montour on May 19, 2016, and he completed a
Significant Other Registration Form naming Appellant Crissman as a significant
other. Complaint, 12/7/16, at ¶ 4. Montour filed a complaint against
Appellants on December 7, 2016, alleging breach of contract by Appellant
Carvelli and unjust enrichment by Appellant Crissman. Id., at counts I and
II. Appellants filed a counseled answer on January 31, 2017. On February 13,
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2017, all parties allegedly entered into a Settlement Agreement,1 and on
March 2, 2017, they signed and filed a Praecipe to Settle and Discontinue the
case without prejudice, thereby canceling the arbitration hearing scheduled
for April 4, 2017. Praecipe to Settle and Discontinue, 3/2/17.
Montour filed a First Amended Complaint on April 26, 2017, which
included counts for breach of contract against Appellant Carvelli and unjust
enrichment against Appellant Crissman, and demanded the sum of $9,952.29
plus finance charges accruing at the rate of two percent per month. First
Amended Complaint, 4/26/17. On May 4, 2017, the trial court entered an
order permitting Appellants’ counsel to withdraw. Appellants filed a pro se
answer on June 16, 2017. Montour then filed a praecipe for an arbitration
hearing on July 19, 2017. The hearing was held on December 6, 2017, at
which Appellants appeared pro se. The arbitration panel entered an award 1)
in Montour’s favor “against only [Appellant] Michael P. Carvelli” in the amount
of $11,372.15, and 2) in Appellant Crissman’s favor “as to Plaintiff’s claims.”
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1 The Settlement Agreement is not docketed as filed and was not attached to
the Praecipe to Settle and Discontinue filed in this case on March 2, 2017.
Thus, it was not part of the pleadings before the trial court. Appellants
included the Settlement Agreement as an attachment to their Motion for
Reconsideration and Brief in Support, filed more than one year later, on
March 12, 2018. We discuss the significance of this failing infra.
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Arbitration Award, 12/6/17. On December 29, 2017, Appellant Carvelli filed
an appeal to the Allegheny County Common Pleas Court.2
On January 24, 2018, Montour filed a Motion for Judgment on the
Pleadings. By order filed on February 12, 2018, the trial court granted the
Motion for Judgment on the Pleadings and entered judgment in favor of
Montour and against Appellants, “jointly and severally, in the amount of
$11,226.48, plus interest until collected and all costs of suit.” Order, 2/12/18.
Appellants, by new counsel, filed a notice of appeal to this Court on
March 7, 2018. Appellants also filed a Motion for Reconsideration and Brief in
Support on March 12, 2018.3 Montour filed an answer, and the trial court
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2 Although Appellant Crissman was not an aggrieved party who would have
appealed the Arbitration Award, the award in her favor was appealable by
Montour. Pa.R.C.P. 1309 provides, “An appeal by any party shall be deemed
an appeal by all parties as to all issues unless otherwise stipulated in writing
by all parties.” There was no such stipulation in this case; thus, the appeal
by Appellant Carvelli sufficed as an appeal by Montour, as well.
3 Pa.R.A.P. 1701 provides as follows:
a) General rule. Except as otherwise prescribed by these rules,
after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer
proceed further in the matter.
(b) Authority of a trial court or agency after appeal. After
an appeal is taken or review of a quasijudicial order is sought, the
trial court or other government unit may:
* * *
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denied the motion for reconsideration on April 2, 2018. Both Appellants and
the trial court complied with Pa.R.A.P. 1925.
Appellants raise the following issues on appeal:
[1.] Whether the Praecipe to Settle and Discontinue Without
Prejudice prevented a continuance or revival of the action
discontinued and the filing of the Amended Complaint a nullity?
[2.] Whether the Amended Complaint was void as it was not filed
with the consent of all parties or with leave of court?
[3.] Did the lower court err as a matter of law in finding against
Appellant Jody L. Crissman a claim for unjust enrichment and/or
violation of a written contract?
Appellants’ Brief at 6.
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(3) Grant reconsideration of the order which is the subject
of the appeal or petition, if:
(i) an application for reconsideration of the order is
filed in the trial court or other government unit within
the time provided or prescribed by law;
* * *
A timely order granting reconsideration under this
paragraph shall render inoperative any such notice of appeal
or petition for review of a quasijudicial order theretofore or
thereafter filed or docketed with respect to the prior
order. . . .
Pa.R.A.P. 1701. Thus, because the trial court did not grant reconsideration,
the appeal progressed in timely fashion; for our purposes, the reconsideration
proceedings did not impact the appeal. In addition, 42 Pa.C.S. § 5505, which
provides, “Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30 days after its
entry, notwithstanding the prior termination of any term of court, if no appeal
from such order has been taken or allowed,” also is not applicable, as it would
have been if the trial court had granted reconsideration within thirty days.
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We examine the requirements of entry of judgment on the pleadings.
Entry of judgment on the pleadings is permitted under Pa.R.C.P. 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). Moreover:
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.
Rourke v. PA Nat’l Mutual, 116 A.3d 87, 91 (Pa. Super. 2015).
Furthermore, “[w]e will affirm the grant of such a motion 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.” Century Sur Co. v.
Essington, 140 A.3d 46, 51 (Pa. Super. 2016).
We address Appellants’ first two issues in tandem. Appellants assert
that because all parties signed a Praecipe to Settle and Discontinue without
prejudice on March 2, 2017, based upon the Settlement Agreement the
parties’ signed, Montour should not have filed an amended complaint because
a discontinuance is the exclusive voluntary termination of an action.
Appellants’ Brief at 11 (citing Pa.R.C.P. 229). Thus, they maintain that there
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no longer existed an action pending before the trial court. Appellants’ Brief at
12. Appellants contend that by discontinuing its action before the filing of the
amended complaint, the trial court lacked jurisdiction “to hear the issues set
forth in the amended complaint.” Id. at 13. Appellants’ argue that “[t]his
[C]ourt cannot remand the matter back to the trial court for further
proceedings as there is no action in the trial court.” Id.
Appellants continue their attack on the propriety of the First Amended
Complaint in their second issue, asserting that it was filed without the “request
and consent either of the other parties or the court.” Appellants’ Brief at 15.
They contend this action “flies in the face of the clear statement” of Pa.R.C.P.
1033, which provides that “[a] party either by filed consent of the adverse
party or by leave of court may . . . amend the pleading.” Appellants’ Brief at
14–15. Appellants reiterate that Montour did not request consent from either
Appellants or the court before filing the amended complaint. Id. at 15.
Appellants complain that “only eight[] days after the filing of the amended
complaint” they were without counsel, as prior counsel sought and obtained
leave of court to withdraw.4 Id. at 16. Thus, Appellants filed their answer
pro se.
We consider the basis of the trial court’s grant of judgment on the
pleadings and its implication for Appellant’s first two issues on appeal.
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4 Appellants had counsel when they entered into the Settlement Agreement.
Settlement Agreement, 2/13/17; Praecipe to Settle and Discontinue, 3/2/17.
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Appellants’ answer to Montour’s First Amended Complaint indicates, in its
entirety, as follows:
[Appellants], Michael P. Carvelli and Jody L. Crissman
make[] this their answer to the complaint filed by [Montour] and
set[] forth the following:
1–12–Denied
1- Denied
2- Denied
3- Denied
4- Denied
5- Denied
6- Denied
7- Denied
8- Denied
9- Denied
10- Denied
11- Denied
12- Denied
Answer, 6/16/17. In light of the pleadings before it, the trial court noted the
following:
I granted [Montour’s] Motion for Judgment on the Pleadings based
upon the fact that [Appellants] did not sufficiently respond to
[Montour’s] [First] Amended Complaint, as [Appellants’] Answer
merely contained twelve number[ed] paragraphs, each containing
only the word “denied.” See Pa.R.C.P. 1029(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 in
subdivisions (c) and (e) of this rule, shall have the effect of an
admission”).[5] Since [Appellants’] general denials have the
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5 Neither subdivision (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”), nor
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effect of admissions, judgment was properly entered in favor of
[Montour]. To the extent that [Appellants] argue I abused my
discretion by not allowing them to amend their Answer when they
requested to do so at argument, while I have no specific
recollection of such a request being made, assuming that such a
request was made, [Appellants] did not make such a request
through a proper motion (i.e. a written motion with notice to the
opposing party, and importantly attaching the proposed amended
answer) at the time, and did not file a proper motion at any time
after argument through the time of their appeal.
All other defenses to Judgment on the Pleadings that
[Appellants] argued in their Motion for Reconsideration were
waived by [Appellants’] Answer to the Amended Complaint. See
Pa.R.C.P. 1032(a) (“A party waives all defenses and objections
which are not presented either by preliminary objection, answer
or reply...”).
Trial Court Opinion, 4/18/18, at 2–3 (emphases added).
Appellants’ first two issues both assume that the Settlement Agreement,
on which the Praecipe to Discontinue was based, was before the trial court. It
was not. Its absence from the pleadings, in the record before the trial court,
is fatal to Appellants’ case. Because Appellants’ general denials had the effect
of admissions pursuant to Pa.R.C.P. 1029(b), we agree that the trial court
properly granted judgment on the pleadings.
In addition, Appellants never filed preliminary objections assailing the
sufficiency of the First Amended Complaint. See Pa.R.C.P. 1028(a)(3), (4)
(Preliminary objections may be filed to challenge “insufficient specificity in a
pleading” and “legal insufficiency of a pleading”); In re Adoption of S.P.T.,
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subdivision (e) (“In an action seeking monetary relief for bodily injury, death
or property damage . . . .”) is applicable to this case.
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783 A.2d 779 (Pa. Super. 2001) (Preliminary objections are the appropriate
method by which to challenge allegations raised as a basis for relief); Pa.R.C.P.
1032(a)6 (“A party waives all defenses and objections which are not presented
either by preliminary objection, answer or reply . . . .”).
As Appellants have not asserted a sufficient claim regarding the trial
court’s reasoning in granting the judgment, Appellants’ Brief at 1–17, and we
find no abuse of discretion by the trial court, we agree that the trial court did
not err.7
Appellants’ third issue, as identified in the argument section of their brief,
asserts that the trial court erred in awarding Montour attorney’s fees against
Appellant Crissman. Appellants’ Brief at 16. Careful examination of Appellants’
brief, however, reveals that there is no argument regarding attorney’s fees.
Appellants’ Brief at 16–17. This Court will not consider an argument that has
been abandoned and is undeveloped. See Koller Concrete, Inc. v. Tube
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6 Appellants’ vagueness allegation is not one of the exceptions to the
applicability of waiver by Rule 1032. Pa.R.C.P. 1032(a).
7 To the extent Appellants’ issues rely upon the alleged Settlement Agreement
the parties purportedly entered into in February of 2017, before Montour filed
the First Amended Complaint on April 26, 2017, the claims are waived. As
noted supra, such Settlement Agreement was not filed in the trial court.
Indeed, the only place the agreement exists is in the certified record before
us is attached to Appellants’ Motion for Reconsideration and Brief in Support
filed on March 12, 2018, after the trial court had granted Judgment on the
Pleadings. Thus, there is no indication the trial court was even aware of such
an agreement, nor was it referenced in any pleading before the trial court
when it granted the judgment on the pleadings.
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City IMS, LLC, 115 A.3d 312, 320 321 (Pa. Super. 2015) (Superior Court will
not address issue presented in the statement of questions involved where no
corresponding analysis is included in the brief); Lechowicz v. Moser, 164
A.3d 1271, 1276 (Pa. Super. 2017) (Superior Court will not consider argument
that is not properly developed). Instead, Appellants maintain in the argument
section of their brief that the amended complaint at paragraph fourteen is
“vague and unclear” as to the cause of action against Appellant Crissman.
Appellants’ Brief at 16. As discussed supra, this issue is waived pursuant to
Pa.R.C.P. 1032(a).
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2018
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