HomeMy WebLinkAbout97-1606 civilHOMESIDE LENDING, INC. : IN THE COURT OF COMMON PLEAS OF
F/K/A BANCBOSTON CUMBERLAND COUNTY, PENNSYLVANIA
MORTGAGE CORP., :
Plaintiff
:
v. NO. 97-1606 CIVIL TERM
KEITH A. HEDRICK and
KIMBERLY A. HEDRICK,
Defendants CIVIL ACTION - LAW
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER. J., AND GUIDO, J.
ORDER OF THE COURT
ANDNOW, (~ ~ , , 1998, after careful consideration,
Plaintiff's Motion for Summary Judgment is denied.
By the Court,
Jill M. Wineka, Esquire
Purcell, Krug & Hailer
1719 North Front Street
Harrisburg, PA 17102
Attorney for the Plaintiff
Keith A. Hedrick
Kimbedy A. Hedrick
Pro Se
102 Spruce Street
Carlisle, PA 17013
HOMESIDE LENDING, INC. : IN THE COURT OF COMMON PLEAS OF
F/K/A BANCBOSTON : CUMBERLAND COUNTY, PENNSYLVANIA
MORTGAGE CORP., :
Plaintiff :
v. : NO. 97-1606 CIVIL TERM
KEITH A. HEDRICK and :
KIMBERLY A. HEDRICK, :
Defendants : CIVIL ACTION - LAW
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER, J. AND GUIDO, J.
OPINION OF THE COURT
HOFFER, P.J.:
In this opinion, we address Plaintiff's Motion for Summary Judgment.
Homeside Lending, Inc. ("Plaintiff") filed a complaint against Keith and Kimbedy
Hedrick ("Defendants") on March 31, 1997, alleging that Defendants defaulted
on their mortgage. Plaintiff asked for a judgment in the form of a mortgage
foreclosure along with interest, charges and costs. Kimberly Hedrick filed a pro
se preliminary objection on April 24, 1997. This preliminary objection was never
listed on the argument court schedule. There is no record on the docket for any
filings by Keith Hedrick.
On November 21, 1997, Plaintiff filed a motion for summary judgment
against the Hedricks. In this motion, Plaintiff states that the Court should construe
NO. 97-1606 CIVIL TERM
Kimberly Hedrick's Preliminary Objection as an Answer. Plaintiff goes on to
suggest that by treating the Defendant's preliminary objection as an answer,
Defendant has failed to respond to most of the factual averments thereby rendering
these averments as true. Based upon these facts, Plaintiff now asks for summary
judgement against both Keith and Kimberly Hedrick. The Court denies Plaintiff's
Motion for Summary Judgment.
DISCUSSION
The rule for summary judgment is as follows: "[A]fter the relevant
pleadings are closed but within such time as not to delay tdal, any party may
move for summary judgment in whole or in part as a matter of law." Pa. R. Civ.
P. 1028 (1997). The Court finds that Plaintiff's motion for summary judgment is
premature at this time.
The rule for summary judgment requires that the motion be filed after the
relevant pleadings are closed. In this case, the relevant pleadings have not been
closed since neither of the defendants have filed an answer. Plaintiff asks this
Court to determine that Defendant's Preliminary Objection be deemed an answer;
however, Plaintiff offers no authority to show that a court has the discretion to
redefine and retitle any motions or pleadings submitted by either party.1
] We note that the proper method for challenging the propriety of a
preliminary objection is by filing a preliminary objection to the Defendant's
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NO. 97-1606 CIVIL TERM
Furthermore, Kimberly Hedrick filed the preliminary objection for herself only and
did not include Keith Hedrick on the motion. Therefore, Plaintiff's request for
summary judgment is inappropriate for Keith Hedrick since he has filed neither an
answer nor a preliminary objection. Based upon this fact, the relevant pleadings
can not be considered closed for Keith Hendrick.2 Based upon the above
discussion, this Court finds that Plaintiff has not met the necessary standard for
summary judgment since the relevant pleadings are not closed for either Keith or
Kimberly Hedrick.
preliminary objection. See Chester Upland School Dist. v. Yesavage, 653 A.2d
1319 (1994).
2 Again for Plaintiff's benefit, we point to the Pennsylvania Rules of Civil
Procedure which state that the appropriate remedy for a Plaintiff when the
Defendant fails to answer a complaint is to ask for a default judgment. "The
prothonatary, on praecipe of the plaintiff, shall enter judgment against the
defendant for failure to file within the required time a pleading to a complaint which
contains a notice to defend." Pa. R. Civ. P. 1037(b) (1997).
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