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JOSEPH LALUMERA v. NAZARETH HOSPITAL AND JAMES JOSEPH TOLAND (01/07/83)

filed: January 7, 1983.

JOSEPH LALUMERA, JR., A MINOR BY HIS PARENT AND NATURAL GUARDIANS, JOSEPH LALUMERA, SR. AND JANET LALUMERA, AND JOSEPH LALUMERA, SR. AND JANET LALUMERA, IN THEIR OWN RIGHT
v.
NAZARETH HOSPITAL AND JAMES JOSEPH TOLAND, 3RD, M.D. APPEAL OF NAZARETH HOSPITAL



NO. 2659 PHILADELPHIA, 1980, Appeal from the Order of October 21, 1980 in the Court of Common Pleas of Philadelphia County, Trial Division, Law, at No. 4203 September Term, 1979.

COUNSEL

G. Wayne Renneisen, Philadelphia, for appellant.

Eugene Spector, Philadelphia, for Lalumera, et al., appellees.

Spaeth, Brosky and Beck, JJ. Spaeth, J., disqualified himself.

Author: Beck

[ 310 Pa. Super. Page 402]

Appellant Nazareth Hospital appeals an order of the Court of Common Pleas, Philadelphia County, sitting in equity, which denied its petition to open a default judgment.

Appellees Joseph Lalumera Jr., a minor, and his parents filed a complaint in trespass and assumpsit against Nazareth Hospital and Joseph James Toland, 3rd, M.D., on September 25, 1979, alleging negligence in the medical treatment of Joseph Lalumera Jr. while he was a patient in the hospital. From the time the complaint was served on Nazareth, September 26, 1979, a series of errors ensued which culminated in the entry of a default judgment on October 30.

Upon receipt of the complaint, the hospital's assistant administrator immediately notified its current insurance carrier, Pennsylvania Hospital Insurance Company (PHICO) in the erroneous belief that PHICO was the correct carrier for the claim in question. PHICO telephoned Nazareth on October 3 to advise the hospital that PHICO was not the proper carrier, but for some reason failed to return the

[ 310 Pa. Super. Page 403]

    papers relating to the claim until October 10. The hospital received them on October 11.

On the same day, October 11, Nazareth notified its prior insurance broker, J.J. Manley, Inc., of the claim. Manley's vice-president, Mark Toal, assumed that his office had a record of the claim and he instructed a claims clerk to pull the file. The clerk who was given this task was new and inexperienced. She was unable to locate the requested papers and, apparently, was completely unaware that there was any urgency to the request, for she later said that she had "been taking a little time every day trying to locate it" (R. 25). Meanwhile, Toal became preoccupied with other work at Manley's which kept him from giving the Lalumera claim his immediate and full attention. On October 30 a default judgment was entered. When Toal learned of the default judgment on November 1, the papers were located and sent by messenger to the proper insurance carrier on November 2. On the same day, November 2, counsel for Nazareth entered his appearance, and on November 9 filed a petition to open judgment.

A petition to open a default judgment is addressed to a court's equitable powers, and is a matter for judicial discretion. The scope of our review is therefore limited to a determination of whether there has been an error of law or a clear, manifest abuse of discretion. Brooks v. Surman Dental Lab., Inc., 262 Pa. Super. 369, 396 A.2d 799 (1979); Kabanow v. Kabanow, 239 Pa. Super. 23, 361 A.2d 721 (1976). It is well settled that a petition to open a judgment may be granted only when three conditions are met: (1) the petition must be promptly filed; (2) the petitioner must be able to show a meritorious defense; (3) there is a reasonable excuse for failure to file a timely answer. Shainline v. Alberti ...


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