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SELTZER v. ASHTON HALL NURSING AND CONVALESCENT HOME (03/24/72)

decided: March 24, 1972.

SELTZER, APPELLANT,
v.
ASHTON HALL NURSING AND CONVALESCENT HOME



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1969, No. 9320, in case of Bernard Seltzer, administrator of the estate of Morris Seltzer, deceased, v. Ashton Hall Nursing and Convalescent Home.

COUNSEL

Howard J. Creskoff, with him Freedman, Borowsky & Lorry, for appellants.

Richard S. March, with him Galfand, Berger, Senesky & Lurie, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J. Wright, P. J., and Montgomery, J., would affirm on the order below.

Author: Watkins

[ 221 Pa. Super. Page 128]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County opening a default judgment entered in favor of Bernard Seltzer, Administrator of the Estate of Morris Seltzer, deceased, plaintiff-appellant, and against Ashton Hall Nursing and Convalescent Home, defendant-appellee.

The facts in this case are quite similar to the case of Ab v. Continental Imports, 220 Pa. Superior Ct. 5, 281 A.2d 646 (1971), in which this Court held that the lower court abused its discretion in opening a default judgment where the facts indicated that it was clearly not a snap judgment but one where the defendant blatantly failed to follow the procedural rules and where the plaintiff's attorney was exceedingly patient before entering judgment. This Court was also influenced by the fact that the petition to open did not set forth the existence of meritorious defense which is also true in the instant case.

The plaintiff, Morris Seltzer, since deceased, had a cataract condition corrected at the Wills Eye Hospital and on June 14, 1969, the 84 year old plaintiff was transferred to the Ashton Hall Nursing and Convalescent Home. During the early morning hours of June 15, 1969, because of alleged negligence of the defendant nursing home the plaintiff was caused to fall and fracture his hip. Suit was instituted on July 3, 1969, by means of a summons with service made on July 9, 1969. On July 24, 1969, appearance was entered by the defendant and on September 4, 1969, a complaint was filed by the plaintiff which was served on the defendant on September 9, 1969.

On March 16, 1970, the plaintiff filed and served interrogatories addressed to the defendant with notice

[ 221 Pa. Super. Page 129]

    to plead within twenty (20) days. The defendant, in his petition, states that he never received the interrogatories until May 25, 1970. However, a letter from defendant's counsel dated March 17, 1970, specifically acknowledges his receipt of the interrogatories.

The defendant also raised the question of the receipt of the complaint. However, the record shows a service return from the Sheriff on September 9, 1969, and a copy of the complaint was also sent to the defendant's counsel on April 13, 1970, when for the second time the plaintiff requested answers to the interrogatories.

On May 20, 1970, plaintiff for the third time requested answers to the interrogatories "within the next five days". On May 25, counsel for the defendant requested another copy of the interrogatories which was immediately sent to him. On June 2, 1970, because of the advanced age and poor physical condition of the plaintiff, plaintiff's counsel filed a motion for ...


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