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FIRST MORTGAGE COMPANY PENNSYLVANIA v. MARJORIE MAREE MCCALL (04/22/83)

filed: April 22, 1983.

FIRST MORTGAGE COMPANY OF PENNSYLVANIA
v.
MARJORIE MAREE MCCALL, ALSO KNOWN AS MARJORIE M. CAVALIERI, APPELLANT



No. 2352 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action at No. 80 - 21650.

COUNSEL

Jonathan DeYoung, King of Prussia, for appellant.

Richard F. Stern, Jenkintown, for appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 313 Pa. Super. Page 56]

This is an appeal from an order granting summary judgment. We affirm.

On February 25, 1980, appellant executed and delivered to appellee, First Mortgage Company of Pennsylvania, a bond and warrant accompanied by a mortgage as collateral security for a loan made by First Mortgage to The Cavalieri Group, Inc., a Pennsylvania corporation. Seven months later Cavalieri failed to pay the monthly installments. Appellant was sent a Notice of Default and Intent to Foreclose. The bond and warrant provided that upon default, the entire unpaid balance of principal and interest would become due and payable immediately, together with late charges and attorney's fees.

First Mortgage filed its complaint on December 10, 1980. In her answer to the complaint appellant responded in numbered paragraphs with merely "correct" or "incorrect." Oral argument was scheduled for July 30, 1981, but appellant failed to appear. Finding no genuine issue of material fact, the lower court granted First Mortgage's motion for summary judgment.

Pa.R.Civ.P. 1035(b) provides that summary judgment will be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party has the burden of showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. The record must be examined in the light most favorable to the non-moving party. Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 376 A.2d 247 (1977); Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968).

The lower court held that appellant's responses of "incorrect" to paragraphs 4 and 5 of the complaint were general

[ 313 Pa. Super. Page 57]

    denials, which under Pa.R.Civ.P. 1029(b) have the effect of admissions. Slip op. at 3. The complaint consisted of five numbered paragraphs. Paragraphs 1 and 2, which appellant admitted were "correct," identified the parties to the action. Paragraph 3, also admitted to be "correct," stated that appellant "made, executed and delivered a Bond and Warrant, inter alia, to plaintiff [First Mortgage] as collateral security for a loan made by plaintiff to The Cavalieri Group, Inc . . . ." Paragraphs 4 and 5, which appellant said in her answer were "incorrect," stated that the loan was in default and listed the balance due as $207,636, to which were added interest of $12,458.16, late charges of $346.06, and attorney's fee of $31,145.40. In a separate paragraph at the end of her answer appellant said: "The court should not allow judgment as requested as the loan was made to The Cavalieri Group, Inc. and no attempt was made to collect the loan from them. The amount of the loan is $100,000 less payments made to date."

It is arguable that appellant's final statement represents a specific denial of the amount due, which is a material fact in this case. Pa.R.Civ.P. 126 provides that the rules are to be liberally construed and that the court may disregard a procedural error. However, appellant also failed to answer the motion for summary judgment with an opposing affidavit, as required by Pa.R.Civ.P. 1035(d). The motion for summary judgment ...


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