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CHARLES AND JOAN BITTENBENDER v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (04/10/87)

filed: April 10, 1987.

CHARLES AND JOAN BITTENBENDER, ADMINISTRATORS OF THE ESTATE OF MARYANNE BITTENBENDER, DECEASED, AND CHARLES AND JOAN BITTENBENDER, INDIVIDUALLY
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, AND MICHAEL ANTHONY LUND. APPEAL OF SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



APPEAL FROM ORDER ENTERED MARCH 11, 1986 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, NO. 4667 AUGUST TERM, 1984.

COUNSEL

Stanley J. Sinowitz, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Jr., Philadelphia, for appellees.

Cirillo, President Judge, and Rowley and Hoffman, JJ.

Author: Cirillo

[ 362 Pa. Super. Page 244]

This is an appeal from an order denying a petition to strike and/or open a default judgment. We affirm.

The sole issue presented for our review is whether the notice requirement for a default judgment was followed pursuant to Pa.R.Civ.P. 237.1(a).

This action was originally filed on August 28, 1984 and served upon Southeastern Pennsylvania Transportation Authority (SEPTA) on September 4, 1984. The underlying claim is that SEPTA improperly discharged a 15 year old trolley passenger into the path of a speeding vehicle. The death of the passenger followed the accident.

[ 362 Pa. Super. Page 245]

On January 29, 1986, one year and three months after entry of a default judgment, SEPTA moved to strike and/or open the judgment. The trial court denied this request.

Rule 237.1(a) provides that no default judgment shall be entered without certification that written notice of intent to file such judgment was mailed to "the party against whom judgment is to be entered and to his attorney of record, if any." Rule 237.1(a) further provides that "[i]f a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule."

The record indicates that appellees, Charles and Joan Bittenbender, through their attorney, mailed a copy of the praecipe to enter a default judgment, on the same day it was filed, to Stanley Sinowitz, Esquire, in-house counsel for appellant SEPTA. This letter was dated October 23, 1984, which was 13 days after the expiration of the extension which was granted by appellees to SEPTA. The extension was given in a letter dated September 14, 1984, which was mailed to J.J. Rooney, Jr., Director of SEPTA's Claim Department, in response to Rooney's request. The letter granting the extension also informed SEPTA that failure to answer the complaint within the extension period would "result in the application for judgment."

SEPTA bases its argument on the assertion that the notice of a default judgment which was mailed only to in-house counsel Sinowitz, did not satisfy the requirement of Rule 237.1(a) which calls for notice to be given to "the party against whom judgment ...


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