Taylor, J. v. Harris, P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JESSICA TAYLOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PAULINE HARRIS
Appellee No. 1979 EDA 2015
Appeal from the Order Entered June 2, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 0034 March Term, 2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 25, 2016
Jessica Taylor appeals from the trial court’s order denying her post-
trial motion after the court granted a compulsory nonsuit1 in favor of
Appellee, Pauline Harris. After careful review, we reverse and remand for a
new trial.
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*
Retired Senior Judge assigned to the Superior Court.
1
A trial court may enter a compulsory nonsuit on any and all causes of
action if, at the close of a plaintiff's case against all defendants on liability,
the court finds that the plaintiff has failed to establish a right to relief.
Pa.R.C.P. 230.1(a), (c); Portside Investors, L.P. v. N. Ins. Co. of New
York, 41 A.3d 1, 13 (Pa. Super. 2011). On appeal, entry of a compulsory
nonsuit is affirmed only if no liability exists based on the relevant facts and
circumstances, with appellant receiving the benefit of every reasonable
inference and resolving all evidentiary conflicts in appellant’s favor. The
compulsory nonsuit is otherwise properly removed and the matter remanded
for a new trial. Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582
(Pa. 2012).
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This matter arises from an automobile accident that occurred on July
28, 2012, in the area of 15th and Clearview Streets in Philadelphia. On
March 3, 2014, Taylor filed a personal injury complaint against Harris
alleging that Harris “suddenly and without warning . . . negligently,
carelessly and/or recklessly operated [her] vehicle in such a manner as to
cause a collision.” Plaintiff’s Complaint, 3/3/14, at ¶ 5. As a result of the
collision, Taylor alleged that she suffered “permanent bodily injuries,” id. at
¶ 6, and “property damage to [her] vehicle and other related damages.” Id.
at ¶ 15. In response to the complaint, on April 15, 2014, Harris filed an
answer with new matter. A jury trial commenced on May 4, 2015. On the
second day of trial, at the close of Taylor’s case, Harris moved for a nonsuit
based on Taylor’s failure to file a reply to her new matter.
On May 5, 2015, at 11:23 a.m., Taylor filed a reply to Harris’ new
matter, generally denying all averments in the new matter and concluding
that “the averments were stating conclusions of law to which no response is
mandated pursuant to the Pennsylvania Rules of Civil Procedure.” Plaintiff’s
Reply to New Matter, 5/5/15.2 The court, thereafter, granted Harris’ motion
for nonsuit and entered judgment in favor of Harris. Taylor filed timely post-
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2
At the conclusion of argument on the motion for non-suit, Taylor’s counsel
stated that they had prepared a reply to Harris’ new matter; however, the
reply had not yet been time-stamped and entered on the docket. N.T. Trial
(Waiver), 5/5/15, at 18. Immediately following Taylor’s case-in-chief,
Harris’ attorney acknowledged that Taylor’s reply to new matter was just
filed with the court. Id. at 20.
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trial motions claiming that because Harris did not plead any facts in her new
matter, she did not need to file a reply. On June 2, 2015, the court denied
the post-trial motions. This timely appeal follows.
On appeal, Taylor presents the following issue for our review: Did the
trial court err in granting appellee’s Motion for a Non-Suit based upon the
fact that plaintiff did not file a Reply to New Matter before trial had begun?
Instantly, Taylor takes issue with the fact that the court granted a
nonsuit at the close of her case when Harris’ new matter did not contain
facts supporting an affirmative defense to require an affirmative denial via a
reply. Rather, in such cases, Taylor contends that Harris’ averments are
automatically deemed denied.
Pursuant to Pa.R.C.P. 1029(b), “[a]verments in a pleading to which a
responsive pleading is required are admitted when not denied specifically or
by necessary implication.” Moreover, “[a]verments in a pleading to which
no responsive pleading is required shall be deemed to be denied.” Pa.R.C.P.
1029(d). A responsive pleading shall admit or deny each “averment of fact
in the preceding pleading or any part thereof to which it is responsive.”
Pa.R.C.P. 1029(a) (emphasis added).
In Gotwalt v. Dellinger, 577 A.2d 623 (Pa. Super. 1990), our Court
stated:
Pennsylvania Rule of Civil Procedure 1029(d) governs when a
party must file a responsive pleading to an averment contained
in a new matter or other pleading. Rule 1029(d) provides that
averments in a pleading to which no responsive pleading is
required shall be deemed to be denied. If a party’s new
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matter does not contain facts supporting an affirmative
defense, but rather contains merely conclusions of law, no
denial is required because such averments are deemed to
be denied. Because such averments are deemed to be denied,
they are, therefore, in issue, and no judgment may be entered
based upon a party’s failure to respond to those averments.
In evaluating whether an averment contained in a new
matter requires a response pursuant to Pa.R.Civ.P.
1029(d), trial courts must consider whether the
averments are fact-based or are merely conclusions of
law.
Id. at 626 (emphasis added). See Goodrich-Amram, Standard Pennsylvania
Practice (1972 Supplement), § 1030-1 at 308 (purpose of new matter
pleading is “to compel a plaintiff to answer the defendant’s affirmative
defenses during the pleading stage to avoid an unnecessary trial.”).
Moreover, in Sechler v. Ensign-Bickford Co., 469 A.2d 233 (Pa.
Super. 1983), our Court further defined new matter:
The term “New Matter,” under which heading Pa. R. Civ. P. 1030
requires affirmative defenses to be pleaded, embraces matters
of confession and avoidance as understood at common law, and
has been defined as matter which, taking all the allegations of
the complaint to be true, is nevertheless a defense to the action.
New matter ignores what the adverse party has averred
and adds new facts to the legal dispute on the theory that
such new facts dispose of any claim or claims which the
adverse party had asserted in his pleading. Pleaders often
confuse specific denials with new matter. A specific denial in
contrast to new matter, merely tells what happened in place of
the averment of the adverse party which is denied. For
example, a denial of the contract pleaded by the plaintiff and the
assertion of a different contract or the denial that the defendant
is in control of premises and that a third person is in control is
fundamentally a traverse and not an avoidance and may not be
pleaded as new matter.
Id. at 233 (emphasis added).
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Thus, if Harris’ new matter only averred conclusions of law, Taylor was
not compelled to file a reply. Enoch et ux. v. Food Fair Stores, Inc., 331
A.2d 771 (Pa. Super. 1974); see Watson v. Green, 331 A.2d 790, 792 (Pa.
Super. 1974) (court will not grant judgment in favor of defendant when
plaintiff does not reply or improperly responds to new matter when
allegations in new matter simply restate what has already been placed into
issue in complaint and answer); see also Pa.R.C.P. 1045(b) (all affirmative
defenses shall be pleaded under heading “New Matter” and plaintiff who fails
to file reply to averments of defendant’s new matter shall be deemed to
admit all such averments).
Instantly, Harris averred the following in her new matter/answer:
 Pursuant to the applicable provisions of the PMVFRL, plaintiff is
precluded from pleading, introducing into evidence, proving or
recovering the amount of benefits paid or payable under said Law up
to and including the limit of required benefits under said Law.
 Plaintiff’s claims are barred by the applicable Statute of Limitations.
 If any adult plaintiff is the owner or resident of an owner of a currently
registered motor vehicle which does not have financial responsibility as
defined by the PMVFRL, and if said plaintiff’s alleged injuries are not
serious as defined by that Law; consequently, that plaintiff may be
precluded from recovering damages for pain and suffering by the
applicable provisions of that Law.
 In the event that the plaintiff’s request damages for delay pursuant to
Pa. R.C.P. 238, answering defendant challenges the applicability and
constitutionality of said rule, and places same at issue.
 Plaintiff’s Complaint fails to state a cause of action upon which relief
may be granted for all or part of the causes of action claimed therein.
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 Plaintiff’s claims may be barred in whole or part by the provisions of
the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.
C.S.A. Section 1701 et seq. as amended (hereinafter PMVFRL);
Further, the answering defendant hereby asserts all of the defenses,
limitations and immunities available pursuant to the said Law.
 It is further averred that if the plaintiff suffered any injuries and/or
damages as alleged, they may have been caused solely and primarily
by plaintiff's own conduct of carelessness or negligence, or in the
alternative, plaintiff may have assumed the risk of any and all injuries
and/or damages which plaintiff alleges to have suffered, all of which is
to be determined during the course and scope of discovery or trial.
 If there is a legal responsibility for the damages set forth in
plaintiff’s Complaint, then the responsibility is that of other
individuals and/or entities over whom the answering
defendant had no control as plaintiff s injuries and damages as
alleged were not caused in any manner whatsoever by the
answering defendant.
Pauline Harris New Matter, 4/15/14, at ¶¶ 16-23 (emphasis added).
The first seven averments in Harris’ new matter are legal conclusions
which do not warrant a reply; Harris included no facts to support the
conclusions. See Gotwalt, supra at 626 (“If a party’s new matter does
not contain facts supporting an affirmative defense, but rather contains
merely conclusions of law, no denial is required because such averments are
deemed to be denied.”); see also Enoch, supra at 914 (legal conclusion of
sovereign immunity averred in new matter does not require denial from
plaintiff); Watson, supra (where defendant averred Dead Man’s Rule in
new matter, court considered it legal conclusion requiring no responsive
pleading); Bowman v. Mattei, 455 A.2d 714 (Pa. Super. 1983), citing The
United Fund of the Philadelphia Area, 207 A.2d 847, 850 (Pa. 1965).
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Instantly, the trial court granted nonsuit based on Harris’ final
averment, ¶ 23, which states:
If there is a legal responsibility for the damages set forth in
plaintiff’s Complaint, then the responsibility is that of other
individuals and/or entities over whom the answering defendant
has no control as plaintiff’s injuries and damages as alleged were
not caused in any manner whatsoever by the answering
defendant.
Pauline Harris New Matter, 4/15/14, at ¶23. The court determined that
Taylor “had an affirmative duty to respond to Defendant’s answer as the
averment directly related to the identity of the person responsible for the
material act (i.e., the motor vehicle accident).” Trial Court Opinion,
11/25/15, at 2-3. We disagree.
The trial court mischaracterizes the averment found in paragraph 23 of
Harris’ new matter. This averment was simply a denial that Harris was the
factual cause of the injuries and damages alleged in Taylor’s complaint. See
Plaintiff’s Complaint, 3/3/14, at ¶¶ 9, 15; see also Defendant’s Points for
Charge (4. Factual Cause) (“In order for the plaintiff to recover in this case,
the defendant’s negligent conduct must have been a factual cause in
bringing about harm.”). Because Harris did not aver any facts to support
this legal theory, Taylor was not required to file a reply under Rule 1029(d).
Accordingly, because Harris’ averment should have been deemed denied, the
court improperly found that Taylor failed to establish a right to relief.
Scampone, supra. Therefore, the nonsuit must be removed and the
matter remanded for a new trial. Id.; Gotwalt, supra at 626 (“Because
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such averments are deemed to be denied, they are, therefore, in issue, and
no judgment may be entered based upon a party’s failure to respond to
those averments.”).
Order reversed.3 Case remanded for new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2016
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3
We also recognize our Supreme Court’s decision, Cagnoli v. Bonnell, 611
A.2d 1194 (Pa. 1992), reversing an order granting judgment on the
pleadings based upon plaintiff’s failure to file a reply to defendant’s new
matter. In that case, the Court based its holding on the fact that the
defendant “had the opportunity over a period of almost two years to file his
Motion for Judgment on the Pleadings in compliance with the procedure
required by the local rules in conjunction with Pa.R.[C.]P. 1024 for timely
filings” and, consequently, the plaintiff “was deprived of the opportunity to
fully and fairly argue against . . . [defendant’s] motions.” Id. at 1196.
Similarly, we note that Harris did not move for judgment in her favor (at
trial), based upon Taylor’s failure to reply to new matter, for more than one
year after she filed her answer.
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