NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37
MEMORANDUM BY OLSON, J.
Appellant, Deborah A. Krekstein, appeals from the order entered on April 14, 2016. We vacate and remand.
On April 30, 2015, Gary M. Lysaght (hereinafter "Mr. Lysaght") instituted the current action by filing a complaint seeking the partition of real property. Within Mr. Lysaght's amended complaint, Mr. Lysaght averred that he and Appellant married on September 13, 1986 and later purchased their marital residence at 1350 Fishing Creek Valley Road, in Harrisburg, Pennsylvania. Mr. Lysaght's Amended Complaint, 6/9/15, at ¶¶ 3-4. The parties divorced on July 10, 2014.
As Mr. Lysaght averred, he and Appellant "executed a Marital Settlement Agreement [on May 9, 2014; therein, the parties] agreed to sell the marital residence . . . and evenly divide the net proceeds."
Following the overruling of Appellant's preliminary objections, Appellant filed a timely answer to Mr. Lysaght's complaint.
On April 14, 2016, the trial court sua sponte ordered the partition of the marital residence — based only upon the complaint and answer and despite there not being any pending motion for a judgment on the pleadings.
Appellant filed a timely notice of appeal from the partition order.
Appellant's Brief at 2.
Within Appellant's brief to this Court, Appellant claims that the trial court erred when it "sua sponte entered an order for partition on the pleadings [even though] neither party had filed a motion requesting the same."
Pennsylvania Rule of Civil Procedure 1551 declares: "[e]xcept as otherwise provided in this chapter, the procedure in an action for the partition of real estate shall be in accordance with the rules relating to the civil action." Pa.R.C.P. 1551. Moreover, regarding judgment on the pleadings, Pennsylvania Rule of Civil Procedure 1034 provides:
As the Pennsylvania Supreme Court has held, "[a] court is without power under . . . Rule 1034 to enter judgment [on the pleadings] on its own motion."
In the case at bar, the trial court sua sponte entered judgment on the pleadings in favor of Mr. Lysaght, on the court's own motion. This is clearly erroneous and requires that we vacate the trial court's order and remand for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.