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PHILADELPHIA BOND AND MORTGAGE COMPANY v. HIGHLAND CREST HOMES (03/24/72)

decided: March 24, 1972.

PHILADELPHIA BOND AND MORTGAGE COMPANY, APPELLANT,
v.
HIGHLAND CREST HOMES, INC.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1968, No. 77, in case of Philadelphia Bond and Mortgage Company v. Highland Crest Homes, Inc. and Sarah Sanft.

COUNSEL

Erwin Miller, with him Zoob & Matz, for appellant.

Charles F. Mayer, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 221 Pa. Super. Page 90]

This is an appeal by Philadelphia Bond and Mortgage Company (PBM) from an order of the Common Pleas Court of Philadelphia County granting the petition of Sarah Sanft, appellee, to open a judgment which had been entered by PBM against her by warrant of attorney contained in a promissory note for $15,000, in which PBM was payee and Highland Crest Homes, Inc.,*fn1 and Sarah Sanft were co-makers. Since the order appealed from reads, "Ordered that the Petition to Open Judgment, to Stay Execution and to Exonerate the Surety, is granted," the lower court not only opened the judgment but also, in effect, granted judgment for the defendant, Sarah Sanft, on the pleadings. The appellant alternatively contends, first, that judgment should not have been granted for the appellee, and, secondly, the petition should not have been opened.

No depositions or affidavits having been filed by any party to this action, the case was argued in the

[ 221 Pa. Super. Page 91]

    court below on petition and answer. The parties on this appeal spiritedly argued and briefed a question involving Pa. R. C. P. 209, both contending that a technical noncompliance with the rule in the court below should inure to their benefit respectively. The procedure followed by the parties is set forth on page four of Appellant's brief:*fn2

"When Sarah Sanft's attorney filed his petition and rule, he was given a return date by the Court Clerk. He then notified PBM's attorney of the return date, which was December 16, 1970. When that date arrived, the Court, on its own volition, continued the argument until February 4, 1971. This was not done at the request of either side. A few days thereafter, Sarah Sanft's attorney filed the amended petition, and sent a copy of the amended petition and rule to PBM's attorney, who, in turn, filed an answer. When the return date arrived, February 4, 1971, Sarah Sanft's attorney elected to argue the case on the amended petition and answer. He chose not to take any depositions or present any evidence to the Court. At no time did he attempt to schedule any depositions or to seek a continuance for the purpose of doing so." In addition, appellee admitted on page four of her brief, "The appellant . . . is correct when it states that the matter was argued on the Amended Petition and Answer." We, therefore, conclude that both parties waived any irregularities of procedure of Rule 209 when they appeared and argued the case "on the Amended Petition and Answer." Thus, we deem it unnecessary at this time to decide who listed the case for argument and the effect of failure to comply with Rule 209, and we will assume that, in any event ". . . all Averments of Fact responsive to the Petition and properly pleaded

[ 221 Pa. Super. Page 92]

    in the Answer shall be deemed admitted . . ." Pa. R.C.P. 209(b).

From our review of the petition and answer, we conclude that appellee has pleaded a meritorious defense and, therefore, the lower court did not abuse ...


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