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EUGENE A. TICE AND DIANE R. LINDSAY BRADLEY v. NATIONWIDE LIFE INSURANCE CO. (04/13/78)

decided: April 13, 1978.

EUGENE A. TICE AND DIANE R. LINDSAY BRADLEY, ADMINISTRATRIX OF THE ESTATE OF ROBERT LINDSAY, DECEASED, APPELLEE,
v.
NATIONWIDE LIFE INSURANCE CO., APPELLANT



COUNSEL

James M. Marsh, Philadelphia, with him LaBrum & Doak, Philadelphia, for appellant.

No appearance entered nor brief submitted for appellee, Tice.

Michael Goldman, with him Harris M. Rosen, Philadelphia, for appellee, Bradley.

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: Jacobs

[ 253 Pa. Super. Page 120]

This is an appeal by Nationwide Life Insurance Company from an order of the lower court denying its petition to open a default judgment. For the reasons developed below, we affirm.

The following relevant facts appear in the record: Eugene A. Tice, plaintiff below, filed a complaint in assumpsit on September 16, 1974, seeking the proceeds of a $50,000 life insurance policy issued by appellant on the life of Robert Lindsay. Appellant filed an answer and new matter in which it alleged, inter alia, that Tice had no insurable interest in the insured's life. Thereafter, the insured's widow, as administratrix of his estate, was permitted to intervene as a party plaintiff. In her complaint in assumpsit, filed June 3, 1975, appellee Diane R. Lindsay Bradley averred that the insured's estate, rather than Tice, was entitled to the proceeds of the policy and that Nationwide was obligated to pay an additional $50,000 since the insured died by accidental means. This complaint was duly answered by appellant.

On June 16, 1976, appellee Bradley filed interrogatories to be answered by appellant within twenty days of service. Neither objections nor answers, however, were provided. Appellee thereupon advised appellant's counsel, by letter dated October 26, 1976, of her intention to initiate sanction procedures pursuant to Philadelphia Civil Rule 4005(d).*fn1

[ 253 Pa. Super. Page 121]

Attached to this letter were (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. Appellant's counsel did not respond to this letter, and no answers to the interrogatories were filed. Appellee's praecipe was filed on November 8, and the Prothonotary entered an interlocutory order on that date directing appellant to answer the outstanding interrogatories within thirty days of service of the order or suffer a judgment by default. Also on that date, appellee sent appellant's counsel a letter advising him that the praecipe and related papers had, in fact, been filed.

No answers to the interrogatories were forthcoming and appellee, on December 9, 1976, filed a supplemental praecipe directing the Prothonotary to enter a final order of judgment by default. Appellant's counsel was notified of the entry of the judgment on December 11 and, on December 17, appellant filed a petition to open the judgment entered against it. This appeal followed Judge GOODHEART'S order dismissing that petition.

It is well-established that "a petition to open a default judgment is addressed to the lower court's equitable powers and is a matter of judicial discretion." Hersch v. Clapper, 232 Pa. Super. 550, 552, 335 A.2d 738, 740 (1975) ...


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