Judges Opinions, — September 5, 2018 10:00 — 0 Comments

Lutz vs. Lutz and Wolfe No. 2017-01376

Civil Action-Law-Estate Administration-Ejectment-Judgment on the Pleadings-Powers of Personal Representative-Possession of Real Property of Decedent by Beneficiary-Defective Pleading

The parties are residual beneficiaries of the Estate of Woodrow W. Lutz (“Decedent”). Bruce Lutz, Sr., (“Plaintiff”) as Executor of that Estate, filed a Complaint in Ejectment against Defendants seeking possession of real property owned by Decedent. Linda L. Wolfe (“Defendant Wolfe”) filed an Answer that failed to comply with the Rules of Civil Procedure, instead containing statements regarding caring for Decedent and difficulty she encountered moving from the real property and requesting an extension of time to vacate the property. Plaintiff filed a Motion for Judgment on the Pleadings asserting the nonexistence of any disputed facts based upon the pleadings.

1. Entry of judgment on the pleadings may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law.
2. In determining the existence of any dispute of facts, the court must confine its consideration to the pleadings and relevant documents.
3. Ejectment is an action filed by a plaintiff who does not possess land but has the right to possess land against a defendant who has actual possession of the land.
4. To support an action in ejectment, the evidence must be sufficient to identify the land in dispute and to establish the plaintiff’s right to possession thereof.
5. Title 20 Pa.C.S. § 3311(a) provides that a personal representative, which the Probate Act defines as an executor or administrator, has the right to take possession of, to maintain and to administer all of the real estate of the decedent except real estate occupied at the time of death by an heir or devisee with the consent of the decedent.
6. Defendant Wolfe has an interest in possession of the real property in this case in light of the fact that Decedent’s Will names her as a residuary beneficiary.
7. Pa.R.C.P. Rule 126 provides that the Court may disregard any error or defect of procedure that does not affect the substantial rights of the parties.
8. While Defendant Wolfe in her Answer failed to respond in parenthetical form and untimely filed the Answer, examination of the Answer to determine whether she occupied the real property at the date of Decedent’s death with his consent does not affect the substantial rights of the parties.
9. Defendant Wolfe’s Answer wherein she indicated that she devoted over seven (7) years of her life performing personal care activities for Decedent without pay coupled with service of the Complaint upon Defendant Wolfe at the real property in question establishes that Defendant Wolfe occupied the real property at the time of Decedent’s death with Decedent’s consent.
10. In light of the same, Plaintiff cannot assert possession of the real property to the exclusion of Defendant Wolfe, as no facts have been pled to establish that Defendant’s Wolfe’s possession of the property interferes with Plaintiff’s power to sell the real property as Executor of the Estate.
L.C.C.C.P. No. 2017-01376, Opinion by Charles T. Jones, Jr., Judge, January 5, 2018.

IN THE COURT OF COMMON PLEAS
OF LEBANON COUNTY, PENNSYLVANIA
CIVIL DIVISION Docket No. 2017-01376

BRUCE LUTZ, SR., EXECUTOR OF THE ESTATE OF WOODROW W. LUTZ,
Plaintiff,
v.
WESLEY W. LUTZ and LINDA L. WOLFE, Defendants

APPEARANCES:
Heather A. Eggert, Esquire For Plaintiff
Linda L. Wolfe Defendant Pro Se

OPINION BY JONES, JR., J.:
Before this Court is Plaintiff’s Motion for Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034 against Defendant Linda L. Wolfe.
I. FACTUAL HISTORY
Bruce Lutz, Sr., as Executor for the Estate of Woodrow W. Lutz (herein “Plaintiff”) is an adult individual residing in Lebanon, PA. Wesley W. Lutz (herein “Defendant Lutz”) is an adult individual last known to reside in Lebanon, PA. Linda L. Wolfe (herein “Defendant Wolfe”) is an adult individual last known to reside in Lebanon, PA
Woodrow W. Lutz (herein “Decedent”) is the father of Plaintiff, Defendant Lutz, and Defendant Wolfe. Decedent passed away on July 30, 2017, and Plaintiff was appointed Executor of Decedent’s Estate by a Grant of Letters Testamentary on August 10, 2017.
Plaintiff and Defendants are residual beneficiaries under the Decedent’s Will. Decedent’s real property was identified in the residue clause of his Will, and no real estate was specially devised. Decedent, at the time of death, was the fee simple owner of real property commonly known and numbered as 1134 East Old Cumberland Street, Lebanon, Lebanon County, Pennsylvania 17042 (herein the “Real Property”). Decedent’s wife, Esther E. Lutz, who predeceased Decedent, was also listed as a Grantee on the Deed that conveyed fee simple ownership of the Real Property.
Plaintiff’s Complaint in Ejectment alleges Defendant Lutz and Defendant Wolfe remained in actual possession of the Real Property after Decedent’s death. Plaintiff seeks possession to the exclusion of the Defendants Lutz and Wolfe and all others who make claim of right to possession by and through the Defendants.
II. PROCEDURAL HISTORY
Plaintiff filed a Complaint in Ejectment on August 18, 2017, seeking possession of the Real Property and improvements to the exclusion of Defendants and all others who claim right to possession by or through Defendants. Defendant Wolfe was served on August 24, 2017, by Deputy Sheriff Amanda Dillman at 1134 East Old Cumberland Street, Lebanon, Lebanon County, Pennsylvania with a copy of the Complaint in Ejectment.
Defendant Wolfe filed an Answer to Plaintiff’s Complaint in Ejectment on September 29, 2017. Defendant Wolfe’s Answer is defective in part under Pennsylvania Rules of Civil Procedure, Rule 206.2 in that her responsive paragraphs did not admit or deny any of the paragraphs in Plaintiff’s Complaint, but rather, made statements regarding caring for her parents (Decedent and Decedent’s wife) and her difficulty in moving out of the Real Property. She further asked for relief in the form of the Court granting an extension of time until November, 2017 to find a new place to live. Defendant Wolfe did not raise any legal defenses to Plaintiff’s Complaint in Ejectment.
Defendant Lutz never filed a Response to Plaintiff’s Complaint. On October 11, 2017, Plaintiff filed a Praecipe for Entry of Judgment by Default against Defendant Lutz. Judgment against Defendant Lutz and in favor of Plaintiff was entered by the Prothonotary Barbra A. Smith the same day.
III. STANDARD OF REVIEW
Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. … 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. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents.
Miller v. Nelson, 768 A.2d 858, 860 (Pa. Super. 2001).
A party moving for judgment on pleadings admits, for purposes of the motion, the truth of all allegations of his adversary, and the untruth of any his allegations which may have been denied by his adversary. Otterson v. Jones, 456 A.2d 388, 390 (Pa. Super. 1997), reargument denied, appeal granted, 705 A.2d 1310, 550 PA. 707, appeal dismissed as improvidently granted, 719 A.2d 309, 553 Pa. 421.
“Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession.” Billig v. Skvarla, 853 A.2d 1042, 1049 (Pa. Super. 2004), citing, Soffer v. Beech, 409 A.2d 337, 342 (Pa. 1979)). “[T]o support an action in ejectment, the evidence must be sufficient to identify the land in dispute and establish the plaintiff’s right to possession thereof.” Hallman v. Turns, 482 A.2d 1284, 1288 (Pa. Super. 1984).
“Legal title to all real estate of a decedent shall pass at his death to his heirs or devisees, subject, however, to all the powers granted to the personal representative by this title and lawfully by the will and to all orders of the court.” 20 Pa.C.S.A. §301, Title to real and personal estate of a decedent. “Personal Representative” means an executor or administrator of any description. 20 Pa.C.S.A. § 102, Definitions.
A personal representative shall have the right to and shall take possession of, maintain and administer all the real estate of the decedent, except real estate occupied at the time of death by an heir or devisee with the consent of the decedent. He shall collect the rents and income from each asset in his possession until it is sold or distributed, and during the administration of the estate, shall have the right to maintain any action with respect to it and shall make all reasonable expenditures necessary to preserve it. The court may direct the personal representative to take possession of, administer and maintain real estate so occupied by an heir or a devisee if this is necessary to protect the rights of claimants or other parties. Nothing in this section shall affect the personal representative’s power to sell real estate occupied by an heir or devisee.
20 Pa.C.S.A. §3311(a), Possession of real and personal estate; exception.
IV. DISCUSSION
Plaintiff instantly filed an Action in Ejectment claiming right of possession, against Defendants Lutz and Wolfe who are/were in actual possession of the Real Property. To support an Action in Ejectment, the evidence must be sufficient to identify the land in dispute, and Plaintiff’s right to possession thereof against Defendants. Hallman v. Turns, 482 A.2d 1284, 1288 (Pa. Super. 1984).
Defendant Lutz never filed a Response to Plaintiff’s Complaint. On October 11, 2017, Plaintiff filed a Praecipe for Entry of Judgment by Default against Defendant Lutz. Judgment against Defendant Lutz and in favor of Plaintiff was entered by the Prothonotary Barbra A. Smith the same day. Accordingly, Plaintiff’s Motion for Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034 will only be determined against Defendant Wolfe as there is a prior, valid Entry of Judgment against Defendant Lutz.
The sole issue before this Court is whether Plaintiff is entitled to Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034 in his Ejectment Action against Defendant Wolfe. Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034 in the instant Ejectment Action does not allow this Court to rule in contravention to established Pennsylvania Law as it relates to Decedents, Estates, and Fiduciaries.
Title 20 Pa.C.S.A. Chapter 33, Section 3311, Subsection (a), “A personal representative shall have the right to and shall take possession of, maintain and administer all the real estate of the decedent, except real estate occupied at the time of death by an heir or devisee with the consent of the decedent.” 20 Pa.C.S.A. §3311(a). Thus, this Court must determine if Plaintiff, who claims right of possession of the Real Property, is entitled to Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034 against Defendant Wolfe, who is in actual possession of the Real Property.
First, this Court considers the bases for interest in the Real Property of both parties. For Defendant Wolfe to defend against Ejectment under 20 Pa.C.S.A. § 3311(a), this Court must find that she is an heir or devisee of Decedent and that she occupied Decedent’s real estate at the time of his death, with his consent.
The Complaint alleges, and it is not disputed, that Plaintiff Bruce Lutz, Sr. was appointed as the Executor of Decedent’s Estate by Letters Testamentary. The Certificate of Grant of Letters originally had a true copy of the Decedent’s Will annexed thereto, but was not included in Plaintiff’s Complaint. Complaint, Page 2 and Exhibit B. This Court deems the Decedent’s Will a relevant document which is of record in Lebanon County. See Miller v. Nelson, 768 A.2d 858, 860 (Pa. Super. 2001)(In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents).
The Decedent’s Will states,
In the event, however, that my said wife, Ester E. Lutz, Should predecease me, or die in a common disaster with me, then in either event, all the rest, residue and remainder of my Estate, both real and personal, wherever situate, shall be divided into five (5) equal shares and distributed as follows: … (e) I give and bequeath one (1) share unto my daughter, Linda Wolfe. In event Linda Wolfe does not survive me, her share shall be paid unto her issue, per stirpes.
Will of Woodrow W. Lutz, Pages 1-2.
Decedent’s wife Ester E. Lutz is also deceased. Plaintiff’s Complaint in Ejectment, Page 2. Plaintiff, who was the Informant on Decedent’s Certificate of Death, listed Decedent’s marital status as “Widowed” at the time of death. Complaint, Exhibit A. Thus, this Court finds that Ester E. Lutz, Decedent’s Wife, predeceased Decedent. As a result, this Court finds Defendant Wolfe is a one (1) share residual heir or devisee under Decedent’s Will of his Estate, both real and personal.
Plaintiff, Executor Bruce Lutz, Sr., avers in his Complaint that the Defendants have no valid, legal or equitable right to possession of the Real Property. Further, that Plaintiff has full legal, equitable, complete and marketable title to the subject Real Property as Executor of Decedent’s estate. Complaint, Page 2. This Court finds that Defendant Wolfe does have an interest in possession of the Real Property per Decedent’s Will.
Second, to defend against ejectment, this Court must find that she occupied Decedent’s real estate at the time of his death with his consent. We first look at Plaintiff’s Complaint that states, “Defendant Linda L. Wolfe is an adult individual last known to reside at 1134 East Old Cumberland Street, Lebanon, Lebanon, County, Pennsylvania 17042.” Complaint, Paragraph 3, Page 1; and “Plaintiff demands that the Defendants remove themselves and anyone claiming a right to possession by, to or through Defendants from the subject Real Property.” Complaint, Paragraph 14, Page 3. Further, Defendant Wolfe was served the Complaint in Ejectment at the subject Real Property. Affidavit of Service, by Deputy Sheriff Amanda Dillman, dated September 6, 2017. These averments do not suffice to answer the question of whether Defendant Wolfe lived at the Real Property at the time of death of the Decedent, and with his consent. Rather, they simply concede at the time of the Complaint and Service of such Defendant Wolfe was residing at the Real Property.
This Court must next look at the Answer provided by Defendant Wolfe. Before doing so this Court must note that the Answer provided by Defendant Wolfe is defective in that the responses located in the numbered paragraphs do not correspond to the numbered paragraphs in the petition. Pa.R.C.P. No. Rule 206.2. Although a court may liberally construe materials filed by a pro se litigant, pro se status generally confers no special benefit. Wilkins v. Marsico, 903 A.2d 1281, 1284-1285 (Pa. Super. 2006). Further, “[A]ny person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing.” Id. An equitable doctrine has been incorporated into Pa.R.C.P. No. 126 which is available to a party who makes a substantial attempt to conform, and not to a party who disregards the terms of a rule and determines for himself the steps he can take to satisfy the procedure.” Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006). Here, Defendant Wolfe answered in parenthetical form not admitting or denying any of Plaintiff’s Complaint, untimely (thirty-six days later instead of twenty) served the Answer upon Plaintiff’s counsel and filed a copy of her Answer with the Lebanon County Prothonotary. This Court may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Pa.R.C.P. No. 126. This Court holds that examining Defendant Wolfe’s Answer for determination of whether she occupied the Real Property at the date of death of the Decedent with his consent does not affect the substantial rights of the parties.
Defendant Wolfe’s Answer asks for time to move out of the Real Property because of various reasons including the difficulty in finding a place in her price range and school transportation for granddaughter’s school. Answer, Page 1. She also avers that she devoted over seven years of her life to taking care of her parents. Answer, Page 2. Finally, this Court finds persuasive Paragraphs 12, 14, and 20 of Defendant’s Answer that when Defendant Wolfe’s Father (the Decedent) went to bed she dried him and dressed him. She further avers when her Mother (Decedent’s wife) slept upstairs she helped her get on the chair lift and followed her up and went to bed at the same time as her Mother at 8:00 (Defendant’s Mother predeceased Decedent). Finally, that she took care of her parents without pay because she thought it was her duty. Answer, Pages 2-3. When read together, Defendant Wolfe’s averments in her Answer, coupled with Plaintiff’s Complaint Paragraphs 3 and 14, and the fact that Service of the Complaint was made upon Defendant Wolfe at the Real Property, lead this Court to find that Defendant Wolfe occupied the Real Property at the time of Decedent’s death on July 30, 2017.
This Court finds, using the above analysis coupled specifically with Paragraph 21 of Defendant’s Answer, that Defendant Wolfe’s prolonged occupation of the premises prior to Decedent’s death was with the consent of the Decedent at the time of his death.
As a result, Plaintiff cannot assert possession of the Real Property to the exclusion of Defendant Wolfe absent a Court order directing such. The abovementioned result requires the denial of Plaintiff’s Motion for Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034 in the instant Ejectment Action against Defendant Wolfe.
Plaintiff has not pleaded any facts that show Defendant Wolfe’s possession interferes with Plaintiff’s power to sell the real estate occupied by Defendant Wolfe. Without such facts present at this time, this Court cannot direct the personal representative to take possession of, administer, or maintain real estate so occupied by an heir or devisee if it is necessary to protect the rights of claimants or other parties pursuant to 20 Pa.C.S.A. § 3311.
Finally, this Court holds that nothing has been pleaded by any of the parties that indicates interference with Plaintiff Executor Bruce Lutz, Sr.’s power to sell the Real Property occupied by Defendant Wolfe. See, 20 Pa.C.S.A. §3311. The concomitant Order shall not be construed to limit, in any way, Plaintiff Executor Bruce Lutz, Sr.’s power to sell the Real Property, also known as, 1134 East Old Cumberland Street, Lebanon, Lebanon County, Pennsylvania 17042.
V. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034 is hereby denied. An Order will be entered consistent with the foregoing.

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