Cercone v. Cercone

• Decision Date: 13 April 1978
• Citation: 254 Pa.Super. 381,386 A.2d 1
• Parties: Guy CERCONE and Pearl Cercone, his wife, Appellees, v. Gilbert P. CERCONE and Francine M. Sawyer. Appeal of Francine M. SAWYER.
• Court: Pennsylvania Superior Court

386 A.2d 1

254 Pa.Super. 381

Guy CERCONE and Pearl Cercone, his wife, Appellees, v. Gilbert P. CERCONE and Francine M. Sawyer.

Appeal of Francine M. SAWYER.

Superior Court of Pennsylvania.

April 13, 1978

Argued Nov. 23, 1977.

Alfred C. Maiello, Pittsburgh, for appellant.

John A. Caputo, Pittsburgh, with him Nicholas R. Stone Pittsburgh, for appellees.

Before WATKINS, President Judge and JACOBS, HOFFMAN, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge:

Appellant contends that the lower court improperly granted summary judgment. Because we agree with this contention, we reverse the order of the lower court.

On July 14 1975, appellees, Guy Cercone and his wife Pearl, filed a complaint in assumpsit against their son, Gilbert P. Cercone and his ex-wife, appellant Francine M. Sawyer. In paragraph five of the complaint, appellees alleged that they entered into an oral contract with appellant and their son (hereinafter referred to jointly as defendants) in 1972 while defendants were still married; the contract contemplated a loan which defendants would use in order to pay the construction costs of their new house. In paragraph six of the complaint, appellees alleged that on August 1, 1972, they "loaned Defendants the sum of $18,482.91, which sum the Defendants jointly received in their possession and promised to repay Plaintiffs on demand." Paragraphs seven and eight of the complaint alleged that on June 14, 1972, and July 10, 1972, appellees paid a sum of money totalling $4,200, to third parties at the request of the defendants and in reliance on defendant's promise to repay appellees on demand. In paragraph ten of the complaint, appellees alleged that despite their repeated demands for payment, the defendants refused to make payment.

On August 26 1975, appellant filed preliminary objections to appellees' complaint. Appellant asserted that paragraph five of the complaint alleged a gift transaction rather than a loan transaction, and, thus, could not support a cause of action in assumpsit. Appellant also asked for disclosure of the identity of the third parties to whom appellees allegedly paid money.

On September 2, 1975, appellees filed an amended complaint, identical in almost all respects, including the numbering of paragraphs, to the original complaint. However, paragraph five of the amended complaint no longer specified the purpose of the loan, and paragraphs seven and eight disclosed the identity of the contractor and woodworking company to whom appellees allegedly paid money at defendants' behest.

On September 21, 1975, appellees' son filed an answer to his parents' complaint. He admitted all allegations. As a result, the lower court, pursuant to Pa.R.Civ.P. 1037; 42 Pa.C.S. 1037, entered judgment upon admission against Gilbert P. Cercone in the amount of $22,682.91 plus interest.

On September 19, 1975, appellant filed an answer. In paragraphs five through nine of the answer, appellant averred that "she has no knowledge of the truth of the facts averred (in the corresponding paragraph of the amended complaint) and after reasonable investigation has been unable to ascertain their truth or falsity. Therefore, defendant denies these averments and demands proof thereof at the trial of this cause." In paragraph ten of the answer, appellant admitted that she had received one letter from appellees' attorney which demanded payment on the alleged loan. However, in this paragraph, appellant alleged that she responded to this demand by sending appellees a letter which stated that appellant had no knowledge of any such loan being made to her ex-husband and herself. Appellant attached copies of both letters to her answer as exhibits. Finally, in further answer to appellees' complaint, appellant averred in new matter that on February 6, 1974, appellees conveyed a lot upon which a house had been erected to appellant and her then husband as tenants by the entireties for a sum of $1.00. According to appellant, this transfer constituted an executed gift.

On October 7, 1975, appellees filed a reply to appellant's new matter. This reply admitted that appellees had sold the lot upon which a house had been constructed to defendants for a sum of $1.00. However, appellees denied that this transaction signified an executed gift. Instead, appellees reiterated that they loaned defendants the money to build their house, and defendants had not repaid the money.

On December 10, 1976, appellees filed a pre-trial statement pursuant to Pa.R.Civ.P. 212; 42 Pa.C.S. 212. This statement again alleged that appellees loaned appellant the sum of $22,682.91 in order to enable defendants to build a home; appellant failed to repay this sum. The pre-trial statement also listed appellees' potential witnesses. On January 3, 1977, appellant filed a similar pre-trial statement. She again denied any knowledge of a loan transaction and, to the contrary, insisted that appellees made a complete gift of all money involved in the construction of the house.

On January 14, 1977, appellees filed a motion for summary judgment against appellant pursuant to Pa.R.Civ.P. 1035; 42 Pa.C.S. 1035. According to appellees, appellant admitted all allegations contained in the amended complaint because she failed to deny specifically the averments of paragraphs five through nine that appellees loaned her money which she received and promised to repay. Appellant did not file an answer to this motion, but did file a brief in which she argued that she never participated in any loan transactions and that any transfer of money between appellees and the defendants constituted a gift. Neither appellees nor appellant filed any depositions on the record ^[1] or affidavits supporting or opposing the motion for summary judgment. On February 22, 1977, the lower court, after oral argument, entered summary judgment against appellant. In an opinion filed on March 25, 1977, the lower court reasoned that appellant's failure to deny specifically the allegations of paragraphs five through nine of the amended complaint constituted an admission of all material facts necessary to establish appellees' cause of action in assumpsit. See Pa.R.Civ.P. 1029; 42 Pa.C.S. 1029. This appeal followed.

Appellant contends that the lower court erred in granting summary judgment. Rule 1035 authorizes the entry of summary judgment ". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . ." The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Furthermore, we must view the record in the light most favorable to the non-moving party. Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Bowman v. Sears RoeBuck Co., 245 Pa.Super. 530, 369 A.2d 754 (1976); Husak v. Berkel, 234 Pa.Super. 452, 341 A.2d 174 (1975). Finally, "(a) summary judgment is to be entered only in the clearest of cases where there is not the slightest doubt as to the absence of a triable issue of fact." Granthum v. Textile Machine Works, 230 Pa.Super. 199, 202, 326 A.2d 449, 451 (1974). See also Prince v. Pavoni, 225 Pa.Super. 286, 302 A.2d 452 (1973).

In the instant case, we must review the pleadings ^[2] in order to determine whether a material issue of triable fact still exists. In reviewing the pleadings, our first task consists of determining whether Rule 1029 required appellant to deny specifically the allegations contained in paragraph five through nine of the amended complaint. Rule 1029 provides as follows:

"(a) A responsive pleading shall admit or deny the averments of fact in the preceding pleading or part thereof to which it is responsive. 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 subdivision (c) of this rule, shall have the effect of an admission.

"(c) An averment shall be deemed to be denied if proof thereof is demanded and the pleader states either (1) that after reasonable investigation he is without knowledge or information sufficient to form a belief as to the truth of the averment, or (2) that he is without such knowledge or information because the means of proof are within the exclusive control of an adverse party or hostile person. The pleader shall not be required to state what investigation he has made or to rely upon information received from an adverse party or hostile person.

"(d) Averments in a pleading to which no responsive pleading is required shall be deemed to be denied." (Emphasis supplied). In short, under Rule 1029(b), a party filing an answer must specifically, or by necessary implication, deny all factual averments in the complaint unless the party is able to invoke an exception pursuant to Rule 1029(c). Stimely v. Dutchmen Mobile Homes, 240 Pa.Super. 626, 361 A.2d 733 (1976); Kappe Associates Inc. v. Aetna Cas. & Sur. Co., 234 Pa.Super. 627, 341 A.2d 516 (1975). If Rule 1029(c) is not properly invoked and if the responder fails to make a specific denial of a factual averment, then the responder will be deemed to have admitted that factual averment.

In the instant case, appellant attempted to comply with the exception provided by Rule 1029(c)(1). In paragraphs five through nine of her answer, appellant alleged that she had no knowledge of the truth of appellees'...