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HERMINE S. MITCHELL AND SIDNEY W. FRICK v. UNITED ELEVATOR COMPANY (08/28/81)

filed: August 28, 1981.

HERMINE S. MITCHELL AND SIDNEY W. FRICK, EXECUTORS OF THE ESTATE OF HERMAN STRICKLER, DECEASED AND PAULINE STRICKLER
v.
UNITED ELEVATOR COMPANY, INC., WESTINGHOUSE ELECTRIC COMPANY, AND PENNSYLVANIA REAL ESTATE INVESTMENT TRUST. APPEAL OF UNITED ELEVATOR COMPANY INC. (TWO CASES). APPEAL OF WESTINGHOUSE ELECTRIC COMPANY



No. 2087 Philadelphia, 1980, No. 2088 Philadelphia, 1980, No. 2212 Philadelphia, 1980, Appeals from the Judgment and Order of the Court of Common Pleas, Civil Trial Division, of Philadelphia County at No. 4506 May Term, 1975.

COUNSEL

George D. Sheehan, Jr., Philadelphia, for appellants (at Nos. 2087, 2088) and for appellees (at No. 2212).

William C. McGovern, Philadelphia, for appellants (at No. 2212) and for appellees (at Nos. 2087, 2088).

Charles F. Voltz, Jr., Philadelphia, for appellees.

Wickersham, McEwen and Wieand, JJ.

Author: Wickersham

[ 290 Pa. Super. Page 478]

This case arises from injuries sustained by plaintiff Herman Strickler (hereinafter "plaintiff") when he fell on June 20, 1974 while entering an elevator on the sixth floor of the apartment building where he and his wife resided at 5400 Wissahickon Avenue, Philadelphia. At the time of the incident, plaintiff was 93 years old and had failing eyesight. He had peripheral vision, however, and was able to walk by himself with the help of a cane. Unknown to plaintiff, when he stepped into the elevator car, the floor was ten to twelve inches below the level of the building floor. As a result, plaintiff fell and suffered serious injuries including a fractured hip, which necessitated removal of the femoral head and replacement with a prosthetic device. Plaintiff died of causes unrelated to the accident in February, 1976 and was substituted as a party herein by his executors, Hermine Mitchell and Sidney Frick. Mrs. Strickler, who

[ 290 Pa. Super. Page 479]

    was 84 at the time of the accident, also pursued a claim herein for loss of consortium.

Named as defendants were Pennsylvania Real Estate Investment Trust (hereinafter PREIT), the owner of the building; Westinghouse Electric Corporation (hereinafter Westinghouse), which had designed the elevator in question and had installed it in 1950; and United Elevator Company (hereinafter "United"), which held the contract for maintenance of the elevator, and which, pursuant to that contract, had a representative working on the subject premises at the time of the accident. Defendant United also filed a cross claim against co-defendant Westinghouse. For reasons to be discussed below, a default judgment was entered in favor of plaintiff and against United in January 1976, thereby limiting the trial as to that defendant to the issue of assessment of damages. Plaintiff's case against Westinghouse was premised on alternative theories of negligence, strict liability and breach of warranty. The latter two theories were also alleged in United's cross-claim.

The trial herein was conducted before the Honorable John J. McDevitt 3rd and a jury from September 11 to 21, 1979. At the conclusion of the plaintiff's case, a non-suit was entered in favor of defendant PREIT. The jury thereafter answered interrogatories which mandated a verdict in favor of plaintiff's estate in the amount of $102,529 against both United and Westinghouse and in favor of plaintiff's wife against these same defendants in the amount of $25,000. The jury found in favor of Westinghouse with respect to the doctrine of strict liability and breach of warranty, but imposed liability by finding that Westinghouse had negligently designed the elevator. Defendants United and Westinghouse thereafter filed timely post-trial motions. The post-trial motions of both defendants were denied in an exhaustive and well-considered opinion of Judge McDevitt filed July 31, 1980. Following entry of judgment on the verdict, the present appeals were taken.

[ 290 Pa. Super. Page 480]

I. Appeal of United Elevator Company, Inc.

United's first argument, and the one it pursues most vigorously, is that the trial court erred in denying its motion to strike the default judgment which had first been entered against it on January 19, 1976. This issue has already been reviewed by this court in a decision rendered on July 12, 1978. Strickler v. United Elevator Co., Inc., 257 Pa. Super. 542, 391 A.2d 614 (1978).

As outlined in that opinion, authored by Judge Hoffman, plaintiffs, on October 20, 1975, served interrogatories on defendants United, Westinghouse and PREIT and directed that they be answered within twenty days. When no answers were forthcoming, plaintiff on December 5, 1975 notified all three defendants of his intention to initiate sanction procedures pursuant to Philadelphia Local Civil Rule 4005 * (d) (later renumbered 145). Attached to the 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 PREIT to file answers to the interrogatories within 30 days. Westinghouse and plaintiff then stipulated, on December 29, 1975, that the interlocutory period for Westinghouse would be extended to February 2, 1976.

When neither United nor PREIT filed answers by the deadline, plaintiff, on January 19, 1976, filed a supplemental praecipe directing the prothonotary to enter a final order of judgment by default. On the same date, the prothonotary entered such a judgment as to liability against United and PREIT.

On January 20, 1976, PREIT filed answers to interrogatories, and, on February 27, 1976, both PREIT and United filed petitions to strike and/or open the judgment. In its petition, United asserted that plaintiff failed to notify it properly under Local Rule 4005 (d) and that this local rule is in direct violation of Pa.R.C.P. No. 4019, thereby rendering

[ 290 Pa. Super. Page 481]

    the judgment void. On May 20, 1976, the court per Judge Lagakos, dismissed both petitions. United and PREIT then filed motions requesting reargument before Judge Lagakos. On June 17, 1976, PREIT also filed an appeal to the Superior Court. United, however, did not pursue that remedy. On November 18, 1976, Judge Lagakos denied the motions for reargument, after which United filed an appeal, on November 30, 1976, from both the May 20 and November 18 orders. On December 15, 1976, our court quashed United's appeal as untimely. No petition for allocatur was subsequently filed.

United's next tactic was the filing, on January 20, 1977, of a petition and rule to show cause why the court's orders of May 20 and November 18, 1976 should not be reconsidered. This action was taken after argument in the superior court on PREIT's appeal from Judge Lagakos' denial of the motion to strike. We subsequently upheld PREIT's appeal on the issue that timely notification had not been given pursuant to the local rule. Strickler v. United Elevator Co. Inc., (Appeal of Pennsylvania Real Estate Investment Trust), 248 Pa. Super. 258, 375 A.2d 86 (1977) (hereinafter " Strickler I"). In light of that decision, Judge Greenberg, on August 3, 1977, entered an order granting United's petition for reconsideration. Plaintiff then pursued an appeal from Judge Greenberg's ruling, resulting in the aforementioned opinion by Judge Hoffman on July 12, 1978 (hereinafter " Strickler II").

Despite that opinion, United again moved on the eve of trial that the judgment against it be stricken. Judge McDevitt denied that motion, which is now cited as ground for a new trial. The thrust of United's argument is that the judgment entered by the prothonotary in January 1976 was void by virtue of the superior court's holding in Gonzales v. Procaccio Brothers Trucking Company, 268 Pa. Super. 245, 407 A.2d 1338 (1979). The court therein ruled that Local Rule 145 was in conflict with Pa.R.C.P. No. 4019 ...


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