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HERMAN C. STRICKLER AND PAULINE STRICKLER v. UNITED ELEVATOR CO. (07/12/78)

decided: July 12, 1978.

HERMAN C. STRICKLER AND PAULINE STRICKLER, APPELLANTS,
v.
UNITED ELEVATOR CO., INC., APPELLEE, N. P. S. S. CORPORATION, AND WESTINGHOUSE ELECTRIC INC., AND PENNSYLVANIA REAL ESTATE INVESTMENT TRUST



No. 2329 October Term, 1977, Appeal from the Order dated August 3, 1977 of the Court of Common Pleas of Philadelphia County, May Term, 1975, No. 4506, Trial Div., Law.

COUNSEL

Thomas J. McCormack, Philadelphia, for appellants.

T. Thomas, with him Daniel T. McWilliams, Philadelphia, for appellee, United Elevator Co., Inc.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, and Price, J., concur in the result. Spaeth, J., files a concurring opinion.

Author: Hoffman

[ 257 Pa. Super. Page 545]

Appellants contend that the lower court erred in striking the default judgment against appellee. We agree and, therefore, reverse the order of the lower court.

On May 5, 1975, appellants filed a summons in trespass and assumpsit against United Elevator Co., Inc., appellee, Westinghouse Elec. Corp., and Pennsylvania Real Estate Investment Trust (hereinafter Pennsylvania). Appellants sought damages for personal injuries caused by appellant Strickler falling while entering an elevator in his residence. On October 20, 1975, appellants served interrogatories on United, Westinghouse, and Pennsylvania and directed that they be answered within 20 days of service. No defendant filed an answer. By letter dated December 5, 1975, appellants notified all three defendants of their intention to initiate sanction procedures pursuant to Philadelphia Local Civil Rule 4005(d)*fn1 (now renumbered 145). Attached to the

[ 257 Pa. Super. Page 546]

    letter were 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. On December 16, 1975, the prothonotary entered an interlocutory order directing United, Westinghouse, and Pennsylvania to file answers to the interrogatories within 30 days from the date of service of the order. On December 29, 1975, Westinghouse and appellants stipulated that the interlocutory period for Westinghouse would be extended to February 2, 1976.

None of the defendants filed answers. On January 19, 1976, appellants filed a supplemental praecipe directing the prothonotary to enter a final order of judgment by default. On the same date, the prothonotary entered an order of judgment by default as to liability against United and Pennsylvania.

On January 20, 1976, Pennsylvania filed answers to interrogatories, and, on February 27, 1976, Pennsylvania filed a petition to strike and/or open the judgment. United also filed a petition to strike and/or open the judgment. United asserted that appellants failed to notify it properly under Local Rule 4005(d) and, that the local rule is in direct contravention of Rule 4019 of Pa.R.Civ.P.,*fn2 thus, nullifying

[ 257 Pa. Super. Page 547]

    the judgment. On May 20, 1976, the court, per Judge LAGAKOS, dismissed both petitions. Both United and Pennsylvania filed motions requesting reargument in the lower court; however, on June 17, 1976, Pennsylvania also filed an appeal to the Superior Court. On November 18, 1976, the lower court per LAGAKOS, denied the motions for reargument. On November 30, 1976, United filed an appeal from both the May 20, 1976, and November 18, 1976 orders. Thereafter, on December 15, 1976, our Court quashed United's appeal as untimely. United did not petition for allocatur.

Although the docket entries do not reveal the precise date,*fn3 appellee filed a petition and rule to show cause why the court's orders of May 20, and November 18, 1976, should not be reconsidered. The motions court assigned this petition to Judge GREENBERG. While this petition was pending, our Court handed down a decision in Strickler v. United Elevator Co., Inc., Appeal of Pennsylvania, 248 Pa. Super. 258, 375 A.2d 86 (1977). In Strickler, we reversed the order of the lower court which refused to strike off the default judgment, stating:

"We recognize that the party filing interrogatories can secure a final order after the thirty day interlocutory period has run. The question presented for our consideration is whether service of the unexecuted form of interlocutory ...


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