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NORMAN CASTEL v. IDA MITCHELL AND GRADUATE HOSPITAL UNIVERSITY PENNSYLVANIA (01/14/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 14, 1981.

NORMAN CASTEL, M.D., PETITIONER
v.
IDA MITCHELL AND THE GRADUATE HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, RESPONDENTS

Appeal from the Order of the Administrator of Arbitration Panels for Health Care in case of Ida Mitchell v. The Graduate Hospital of The University of Pennsylvania and Norman Castel, M.D., No. M78-0163. Default judgment entered against defendant.

COUNSEL

A. Arthur Hanamirian, McEldrew, Hanamirian, Quinn & D'Amico, P.C., for petitioner.

Alvin F. de Levie, with him Morton Wapner, Wapner, Newman & Associates, and Joseph Gallagher, for respondents.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 56 Pa. Commw. Page 66]

Norman Castel, M.D. (Petitioner) has appealed from an order of the Administrator for Arbitration Panels for Health Care (Administrator) which denied his petition to open and/or strike a default judgment entered against Petitioner on January 4, 1979. For the reasons which follow, we affirm.

On February 25, 1978 Ida Mitchell filed a complaint in trespass and assumpsit with the Administrator naming the Petitioner and The Graduate Hospital of the University of Pennsylvania as defendants.*fn1 The latter defendant entered an appearance on or about March 14, 1978 and is not involved in the present appeal. Service of the complaint on Petitioner was attempted on at least two occasions: once, on September 15, 1978, by leaving a copy of the complaint at the office of a Dr. Goldman from whom Petitioner rented an adjoining medical suite and, again, on Thursday, September 28, 1978 by leaving a copy of the complaint, after Petitioner had read but refused to accept it, with a nurse at the Downtown Jewish Home for the Aged (Home) where Petitioner held regular hours on Thursday mornings. Petitioner failed to enter an appearance or answer the complaint within twenty days of either date of attempted service. Accordingly, upon praecipe of the plaintiff below, a default judgment was entered against Petitioner on January 4, 1979 pursuant to Pa. R.C.P. Nos. 1037(b) and 1047(a).*fn2 Petitioner

[ 56 Pa. Commw. Page 67]

    received notification of the default judgment shortly thereafter. On April 6, 1979 Petitioner moved to open or strike the judgment. After several delays involving the scheduling of depositions the Administrator denied the petition on December 31, 1979. This appeal followed.

The issues presented for our consideration are: (1) whether the Administrator erred in holding that the service at the Home was valid; (2) whether the Administrator abused his discretion in failing to open the default judgment; and, (3) whether the proceeding should be remanded for clarification.

I

Petitioner argues that the default judgment should be stricken because he was never properly served with the complaint pursuant to Pa. R.C.P. No. 1009. Lack of valid service has been held to be a ground for striking a default judgment since proper service is required in order for a tribunal to have personal jurisdiction over a defendant. Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 221 A.2d 185 (1966). The Administrator found, however, and we agree, that the service made at the Home on September 28, 1978 was valid.*fn3

Pennsylvania Rule of Civil Procedure No. 1009(b) provides, in pertinent part, as follows:

When the defendant is an individual, the writ of summons, or the complaint if the action is commenced by complaint, may be served

[ 56 Pa. Commw. Page 68]

(1) by handing a copy to the defendant; or

(2) by handing a copy

(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

The following evidence of service at the Home was presented in the instant case: On September 28, 1978 Claire Rubin, acting for Ida Mitchell, took a copy of the complaint to the Home. She was informed that Petitioner, Dr. Castel, was making his rounds. After an unsuccessful attempt to deliver the complaint to Petitioner through another doctor, Ms. Rubin attempted to locate Dr. Castel herself. A nurse, who halted Ms. Rubin's search, agreed to deliver the complaint to Dr. Castel but returned stating that the doctor had read the papers but "doesn't want them." When Ms. Rubin refused to take the complaint and turned to leave, the nurse ran after her and said, "Dr. Castel does not want these papers and will not accept them." The Administrator accepted this testimony rather than that given by the Petitioner who denied having received or having read the complaint on September 28. It was clearly the Administrator's duty to resolve this conflict in the testimony.

The facts recited above clearly support the Administrator's conclusion that Dr. Castel was served at the Home and had actual notice of his involvement in the action. We rest our conclusion on the crucial fact that the evidence accepted by the Administrator establishes that Dr. Castel first read the complaint and then refused to accept it. We believe that service was effected when Petitioner received and read the complaint. The fact that he thereafter returned the complaint does not render the service invalid. The basic purpose of the rules as to service, to wit, to assure

[ 56 Pa. Commw. Page 69]

    that the defendant will receive actual notice of the commencement of the action against him and his duty to defend, Branch v. Foort, 397 Pa. 99, 152 A.2d 703 (1959), has clearly been achieved in the instant case.

Petitioner argues that the portion of the testimony of Claire Rubin which quotes the nurse at the Home on September 28, 1978 is hearsay. Since Petitioner did not raise this objection before the Administrator the objection has been waived and the evidence, if it is inadmissible hearsay, should be accorded the same weight as legally admissible evidence since it is relevant and material to the issue here involved. Jones v. Spidle, 446 Pa. 103, 286 A.2d 366 (1971).

Because we have concluded that service was effective we need not address Petitioner's argument as to the applicability of the rule relative to service on a defendant who has prevented or obstructed service of process. Pa. R.C.P. No. 2079.*fn4

We, accordingly, affirm the Administrator's denial of the petition to strike the default judgment.

II

[ 56 Pa. Commw. Page 70]

We now turn to a consideration of whether the Administrator committed an abuse of discretion in denying Petitioner's petition to open the default judgment. A petition to open a default judgment is a matter of judicial discretion and will not be disturbed absent an abuse of that discretion. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973) and Tice v. Nationwide Life Page 70} Insurance Co., 253 Pa. Superior Ct. 118, 384 A.2d 1257 (1978). We believe that the Administrator, acting in a quasi-judicial role, possesses a like discretion to act which we will not disturb absent abuse.

Before a default judgment in assumpsit may be opened it is established that three factors must coalesce: (1) the petition to open must be promptly filed; (2) the failure to enter an appearance or file an answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense. Pappas, supra. A meritorious defense need only be shown to support a petition to open a default judgment in trespass where the equities are not otherwise clear. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971).

The complaint filed by Ida Mitchell included both an assumpsit and a trespass count. Since the factors set forth above must coalesce to support a petition to open, the failure of any one factor is fatal to Petitioner's claim. Having resolved that Petitioner was validly served with the complaint in September, 1978 and having been presented with no other reason for Petitioner's failure to enter an appearance or file an answer, we agree with the Administrator that no adequate excuse for the delay has been presented. The petition to open was, therefore, properly denied. We note that the delay of approximately three months between the time Petitioner was notified of the entry of the default judgment and the filing of the petition to open can hardly be considered prompt.*fn5 We also

[ 56 Pa. Commw. Page 71]

    note that Petitioner failed to show a meritorious defense to the assumpsit action.*fn6

Accordingly, we find no abuse of discretion in the Administrator's denial of the petition to open the default judgment.

III

Finally, Petitioner argues that inaccuracies in the opinion of the Administrator warrant a remand for clarification. The opinion mistakenly states that the date of service at the Home was September 15, 1978. The record clearly shows that service at the Home actually occurred on September 28, 1978 while the attempted service through Dr. Goldman occurred on September 15. While we do not approve of such inaccuracies, we are satisfied that a remand for clarification is unnecessary. The opinion as a whole leaves no doubt that the service found by the Administrator to be effective was that made at the Home on September 28.

Order affirmed.

Order

And Now, this 14th day of January, 1981 the order of the Administrator for Arbitration Panels for Health Care, No. M78-0163, dated December 31, 1979 is hereby affirmed.

Disposition

Affirmed.


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