Federal National Mortgage Ass'n v. McDermott

Philadelphia County Court of Common Pleas

Federal National Mortgage Ass'n v. McDermott

58 Pa. D. & C.2d 241, 1972 Pa. Dist. & Cnty. Dec. LEXIS 159

CourtPennsylvania Court of Common Pleas, Philadelphia County

DecidedNovember 9, 1972

Docketno. 1368

StatusPublished

This text of 58 Pa. D. & C.2d 241 (Federal National Mortgage Ass'n v. McDermott) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Federal National Mortgage Ass'n v. McDermott, 58 Pa. D. & C.2d 241, 1972 Pa. Dist. & Cnty. Dec. LEXIS 159 (Pa. Super. Ct. 1972).

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Opinion

HIRSH, J.,

Defendant, Sarah McDermott, has petitioned this court to vacate its order of June 8, 1972, denying defendant’s petition to [242]*242open judgment, contending that the court acted improperly on its own motion without regard to rule 209 of the Pennsylvania Rules of Civil Procedure. After careful consideration of defendant’s petition and of rule 209, this court finds that defendant is incorrect in her position. And while it sympathizes with her predicament, this court finds that defendant’s interpretation of rule 209 is erroneous. A close reading of rule 209 reveals that it does not disturb the practice in this county where cases at issue on petition and answer are listed for argument by the officer in charge of the list without any order or instruction by counsel. Thus, when defendant filed her petition with the praecipe attached, the matter was automatically placed on the motion list for disposition either on petition and answer or after oral argument. And, after the filing of the answer by plaintiff, it became encumbent upon defendant at that point to file a rule for the purpose of taking depositions to avoid the consequences of rule 209 to the effect that “. . . all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted . . .” for the purpose of the argument. However, it was not until three months after the filing of the original petition and one month after the order denying the petition that defendant filed a petition to proceed to take depositions without cost.

Therefore, when the matter came before the court two months after the original filing date, since no rule for depositions had as yet been taken, the court proceeded properly under rule 209 and denied the petition to open.

Accordingly, it is, therefore, ordered that defendant’s petition to vacate the order of June 8,1972, is denied. It is further ordered that defendant’s petition to proceed to take depositions without costs, is dismissed as moot.

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HIRSH, J.,

Defendant, Sarah McDermott, has petitioned this court to vacate its order of June 8, 1972, denying defendant’s petition to [242]*242open judgment, contending that the court acted improperly on its own motion without regard to rule 209 of the Pennsylvania Rules of Civil Procedure. After careful consideration of defendant’s petition and of rule 209, this court finds that defendant is incorrect in her position. And while it sympathizes with her predicament, this court finds that defendant’s interpretation of rule 209 is erroneous. A close reading of rule 209 reveals that it does not disturb the practice in this county where cases at issue on petition and answer are listed for argument by the officer in charge of the list without any order or instruction by counsel. Thus, when defendant filed her petition with the praecipe attached, the matter was automatically placed on the motion list for disposition either on petition and answer or after oral argument. And, after the filing of the answer by plaintiff, it became encumbent upon defendant at that point to file a rule for the purpose of taking depositions to avoid the consequences of rule 209 to the effect that “. . . all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted . . .” for the purpose of the argument. However, it was not until three months after the filing of the original petition and one month after the order denying the petition that defendant filed a petition to proceed to take depositions without cost.

Therefore, when the matter came before the court two months after the original filing date, since no rule for depositions had as yet been taken, the court proceeded properly under rule 209 and denied the petition to open.

Accordingly, it is, therefore, ordered that defendant’s petition to vacate the order of June 8,1972, is denied. It is further ordered that defendant’s petition to proceed to take depositions without costs, is dismissed as moot.

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Bluebook (online)

58 Pa. D. & C.2d 241, 1972 Pa. Dist. & Cnty. Dec. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-national-mortgage-assn-v-mcdermott-pactcomplphilad-1972.