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WILFRED VANLEER v. HARVEY J. LERNER (06/01/89)

filed: June 1, 1989.

WILFRED VANLEER, APPELLEE,
v.
HARVEY J. LERNER, M.D., APPELLANT



Appeal from the Order entered August 31, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4440 Dec Term 1986.

COUNSEL

Allison L. Persinger, Philadelphia, for appellant.

Mary C. Kenney, Philadelphia, for appellee.

Del Sole, Melinson and Hoffman, JJ.

Author: Del Sole

[ 384 Pa. Super. Page 559]

Wilfred Vanleer, Appellee, brought a medical malpractice action against Harvey J. Lerner, M.D., Appellant. Lerner

[ 384 Pa. Super. Page 560]

    filed Preliminary Objections to Vanleer's Complaint on the grounds that the allegations in paragraph seven of the Complaint did not contain material facts on which a cause of action could be based. (Pa. Rule Civ.Proc. 1019(a)). When Vanleer failed to contest Lerner's preliminary objections, they were granted. Lerner then brought a Motion for Judgment on the Pleadings on the basis that with the deletion of paragraph seven Vanleer had set forth no allegations pertaining to his theory of negligence.

The Motion was granted by the trial court by Order dated July 11, 1988 and was filed with the Prothonotary on July 14, 1988. The Order contained a memorandum opinion which stated:

If plaintiff can show that the discovery to date and/or his expert reports show a theory of negligence against the defendant, the Court will reconsider its decision. Such has not been shown in the Plaintiff's Response to this Motion.

Vanleer filed a Petition for Reconsideration on August 22, 1988 and the trial court granted Vanleer's Petition and reinstated his Complaint by an Order dated August 31, 1988.

Lerner is appealing from the trial court's Order reinstating Vanleer's Complaint on the grounds that a court may modify or rescind its prior orders only if done within thirty days after entry. Vanleer's Petition for Reconsideration was not filed until thirty-nine days after the trial court had entered an Order granting Lerner judgment on the pleadings. Lerner argues that the trial court was no longer empowered to grant ...


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