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SIDNEY S. LERNER v. PHILADELPHIA PSYCHIATRIC CENTER (02/02/81)

decided: February 2, 1981.

SIDNEY S. LERNER, M.D., ADMINISTRATOR, ESTATE OF SAMUEL LERNER, DECEASED, APPELLANT
v.
PHILADELPHIA PSYCHIATRIC CENTER, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in the case of Sidney S. Lerner, M.D., Administrator, Estate of Samuel Lerner, deceased v. Philadelphia Psychiatric Center.

COUNSEL

Sidney S. Lerner, appellant, for himself.

Patrice F. Toland, with her Daniel F. Monahan, for appellee.

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

Author: Williams

[ 56 Pa. Commw. Page 422]

This matter has been previously before this Court in the case of Lerner v. Philadelphia Psychiatric Center, 18 Pa. Commonwealth Ct. 636, 339 A.2d 910 (1975). In that case, we addressed the standing of Sidney S. Lerner, M.D. to enter judgment against The Philadelphia Psychiatric Center pursuant to Section 428 of The Pennsylvania Workmen's Compensation Act (Act).*fn1 The Philadelphia Psychiatric Center, along with its insurer, was one of the appellees in that case, and is appellee in the case at bar. Appellant in both

[ 56 Pa. Commw. Page 423]

    cases is Dr. Sidney S. Lerner. Briefly, the factual background of both actions is as follows: Appellant's brother, Samuel Lerner (decedent), was last employed by appellee as a psychiatric aide. On January 9, 1970, while performing his duties, decedent was struck on the head by a psychotic patient and suffered severe head injury with skull fracture and brain damage. Decedent subsequently entered into a compensation agreement with appellee for total disability, and continued to be compensated until March 11, 1970 when he returned to work. On July 24, 1970, appellee's insurer filed a Petition for Termination, alleging that any disability due to the January 9, 1970 accident ceased on or before March 11, 1970. Decedent's death occurred on December 21, 1971 following a heart attack.

On November 3, 1973, appellant, as administrator of his brother's estate, entered judgment against appellee and its insurer in the Philadelphia County Court of Common Pleas pursuant to Section 428 of the Act. Appellant claimed that appellee and its carrier were "in default in compensation for thirty days or more" during the period from March 11, 1970, when payments to decedent were stopped, and July 24, 1970, when the termination petition was filed. Following entry of judgment, appellee filed a motion to open the judgment, which was granted by the court below. We affirmed, holding that Section 428 of the Act authorized the employee or his dependents to enter judgment against an employer in default in compensation payments for thirty days or more; appellant "being neither the employee nor one of his dependents, had no authority to enter the judgment."

The case at bar represents still another attempt by appellant to enter judgment against appellee under the provisions of Section 428. Appellant caused judgment to be entered against appellee during the April, 1977

[ 56 Pa. Commw. Page 424]

Term of the Court of Common Pleas, as well as during the October Term, 1978. The lower court granted each of the appellee's motions to open the judgments. Appellant thereafter filed the instant ...


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