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EUGENE WAYNE v. PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY (04/13/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 13, 1978.

EUGENE WAYNE, APPELLANT,
v.
PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY, AMERICAN INDUSTRIAL ELEVATOR CO., MARAND DISTRIBUTORS, INC., OTIS ELEVATOR COMPANY AND JOHN DOE AND ATWELL, VOGEL AND STERLING

COUNSEL

Joseph D. Shein, Philadelphia, with him Melvin Brookman, Philadelphia, for appellant.

Walter J. Timby, Jr., Philadelphia, for appellees, Pennsylvania Nat. Mutual Ins. Co., and Marand Dist., Inc.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 254 Pa. Super. Page 193]

This is an appeal from the order of the lower court denying appellant Eugene Wayne's motion to vacate a judgment of non pros, entered pursuant to Philadelphia Civil Rule 4005(d) because of his failure to answer interrogatories filed by appellee Pennsylvania National Mutual Insurance Company. Appellant, in seeking reversal of Judge SMITH's order, relies solely on our decision in Strickler v. United Elevator Co. (Inc.), 248 Pa. Super. 258, 375 A.2d 86 (1977). In Strickler, we reversed a lower court order refusing

[ 254 Pa. Super. Page 194]

    to strike a default judgment, purportedly entered in accordance with Rule 4005(d), since the record there revealed that service of the executed interlocutory order had not been effected.

Appellant, however, cannot benefit from Strickler on this appeal since the question of appellee's compliance with Rule 4005(d) was not initially presented to the lower court for consideration. As this Court only recently stated in Tice v. Nationwide Life Insurance Co., 253 Pa. Super. 118, 384 A.2d 1257 (1977) (253 Pa. Super. at 126, 384 A.2d at 1261):

"It is true that no decision of this Court construing Rule 4005(d) was given until Strickler. However, Rule 4005(d) was in effect at all relevant times, and any contention that this . . . judgment was not entered in compliance therewith could and should have been presented to the lower court. We, therefore, will not consider appellant's argument for the first time on appeal."

Order affirmed.

19780413

© 1998 VersusLaw Inc.



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