Woytovich v. Borough of Blakely

Lackawanna County Court of Common Pleas

Woytovich v. Borough of Blakely

40 Pa. D. & C. 438, 1941 Pa. Dist. & Cnty. Dec. LEXIS 166

CourtPennsylvania Court of Common Pleas, Lackawanna County

DecidedJanuary 17, 1941

Docketno. 383

StatusPublished

This text of 40 Pa. D. & C. 438 (Woytovich v. Borough of Blakely) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Woytovich v. Borough of Blakely, 40 Pa. D. & C. 438, 1941 Pa. Dist. & Cnty. Dec. LEXIS 166 (Pa. Super. Ct. 1941).

Pincite

Opinion

Leach, P. J.,

The praecipe for summons and statement of claim in the above case was filed October 6,1939, and service was made on defendant October 13, 1939. Through a clerical error the body of the sheriff’s return was made October 3rd, although the pencil notation shows October 13th. On December 5, 1939, 53 days after the service of plaintiff’s statement upon defendant, a petition was filed to join additional defendants under Pa. R. C. P. 2252, and an order was made thereunder following verbatim the form set forth in section (c) of said rule. It was served upon the additional defendants before January 1, 1940.

It was their duty to answer within 20 days, but they neglected that duty. Instead, when a petition for a hearing was set forth, they appeared with a motion to quash the petition and order. This was not filed within 20 days after service upon them as required by rule 2256.

Counsel for additional defendants contends that his petition goes to the jurisdiction of the court and is under the Act of March 5, 1925, P. L. 23. Under that act the petition would be properly dismissed. It appears that under that act the parties were properly summoned and [439]*439the court has jurisdiction of the subject matter: Lackawanna County v. James et al., 296 Pa. 225.

We believe that the procedure should be under rule 2256 because that is the procedure provided to attack a defect of form or substance. So far as the additional defendants are concerned, it appears that rule 2275 suspending certain acts definitely, and paragraph 5 suspending all other acts and parts of acts inconsistent with these rules, would apply in this case as suspending the remedy of the Act of March 5, 1925, P. L. 23.

Now, January 17,1941, rule to quash order joining additional defendants .is discharged and the additional defendants are allowed 20 days to file answers.

Free access — add to your briefcase to read the full text and ask questions with AI

Leach, P. J.,

The praecipe for summons and statement of claim in the above case was filed October 6,1939, and service was made on defendant October 13, 1939. Through a clerical error the body of the sheriff’s return was made October 3rd, although the pencil notation shows October 13th. On December 5, 1939, 53 days after the service of plaintiff’s statement upon defendant, a petition was filed to join additional defendants under Pa. R. C. P. 2252, and an order was made thereunder following verbatim the form set forth in section (c) of said rule. It was served upon the additional defendants before January 1, 1940.

It was their duty to answer within 20 days, but they neglected that duty. Instead, when a petition for a hearing was set forth, they appeared with a motion to quash the petition and order. This was not filed within 20 days after service upon them as required by rule 2256.

Counsel for additional defendants contends that his petition goes to the jurisdiction of the court and is under the Act of March 5, 1925, P. L. 23. Under that act the petition would be properly dismissed. It appears that under that act the parties were properly summoned and [439]*439the court has jurisdiction of the subject matter: Lackawanna County v. James et al., 296 Pa. 225.

We believe that the procedure should be under rule 2256 because that is the procedure provided to attack a defect of form or substance. So far as the additional defendants are concerned, it appears that rule 2275 suspending certain acts definitely, and paragraph 5 suspending all other acts and parts of acts inconsistent with these rules, would apply in this case as suspending the remedy of the Act of March 5, 1925, P. L. 23.

Now, January 17,1941, rule to quash order joining additional defendants .is discharged and the additional defendants are allowed 20 days to file answers.

Cite This Page — Counsel Stack

Bluebook (online)

40 Pa. D. & C. 438, 1941 Pa. Dist. & Cnty. Dec. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woytovich-v-borough-of-blakely-pactcompllackaw-1941.

Opinion

Related

Cite This Page — Counsel Stack