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

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 ...


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