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HERMAN STRICKLER AND PAULINE STRICKLER v. UNITED ELEVATOR CO. (INC.) (06/29/77)

decided: June 29, 1977.

HERMAN STRICKLER AND PAULINE STRICKLER
v.
UNITED ELEVATOR CO. (INC.), N.P.S.S. CORPORATION, WESTINGHOUSE ELECTRIC CORP., PENNSYLVANIA REAL ESTATE INVESTMENT TRUST. APPEAL OF PENNSYLVANIA REAL ESTATE INVESTMENT TRUST



Appeal from the Order dated May 20, 1976, of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, at No. 4506 of May Term, 1975.

COUNSEL

George D. Sheehan, Philadelphia, for appellant.

Thomas J. McCormack, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Jacobs

[ 248 Pa. Super. Page 259]

This is an appeal by Pennsylvania Real Estate Investment Trust from an order of the lower court dismissing its petition

[ 248 Pa. Super. Page 260]

    to open and/or strike the default judgment entered against it on January 19, 1976. For the reasons developed below, we reverse.

The essential facts of this case are not in dispute and may be summarized as follows: On June 20, 1974, Herman Strickler, a 93 year old tenant in Pennsylvania's apartment house, sustained personal injuries when he fell while entering an elevator on the sixth floor of the building. Mr. Strickler and his wife Pauline thereafter commenced an action for damages against United Elevator Company, Inc.,*fn1 N.P.S.S. Corporation, Westinghouse Electric Corporation*fn2 and Pennsylvania. On October 20, 1975, appellees, the Stricklers, served interrogatories on United, Westinghouse and Pennsylvania, directing that they be answered within twenty days of service. No answers were filed.

Thereupon appellees, by letter dated December 5, 1975, notified United Westinghouse and Pennsylvania of their intention to initiate sanction procedures pursuant to Philadelphia Civil Rule 4005(d).*fn3 Attached to this letter were

[ 248 Pa. Super. Page 261]

    copies of (1) a notice of intention to file a praecipe for an interlocutory order, (2) a certification of service of the notice of intention to file a praecipe and an interlocutory order, (3) a praecipe for an interlocutory order, and (4) an interlocutory order. The Prothonotary accordingly entered an interlocutory order on December 16, 1975, directing United, Westinghouse and Pennsylvania to file their answers to the outstanding interrogatories within thirty days from the date of service of the order.

No answers having been filed, appellees, on January 19, 1976, filed a supplemental praecipe directing the Prothonotary to enter a final order of judgment by default. The docket indicates that a certification of service of the interlocutory order on January 19, 1976, accompanied the filing of this supplemental praecipe. On the same date, the Prothonotary entered a final order of judgment by default as to liability. Pennsylvania ...


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