Strickler v. United Elevator Co., Inc.

391 A.2d 614, 257 Pa. Super. 542, 1978 Pa. Super. LEXIS 3110
CourtSuperior Court of Pennsylvania
DecidedJuly 12, 1978
Docket2329
StatusPublished
Cited by32 cases

This text of 391 A.2d 614 (Strickler v. United Elevator Co., Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strickler v. United Elevator Co., Inc., 391 A.2d 614, 257 Pa. Super. 542, 1978 Pa. Super. LEXIS 3110 (Pa. Ct. App. 1978).

Opinions

HOFFMAN, Judge:

Appellants contend that the lower court erred in striking the default judgment against appellee. We agree and, therefore, reverse the order of the lower court.

On May 5, 1975, appellants filed a summons in trespass and assumpsit against United Elevator Co., Inc., appellee, Westinghouse Elec. Corp., and Pennsylvania Real Estate Investment Trust (hereinafter Pennsylvania). Appellants sought damages for personal injuries caused by appellant Strickler falling while entering an elevator in his residence. On October 20, 1975, appellants served interrogatories on United, Westinghouse, and Pennsylvania and directed that they be answered within 20 days of service. No defendant filed an answer. By letter dated December 5, 1975, appellants notified all three defendants of their intention to initiate sanction procedures pursuant to Philadelphia Local Civil Rule 4005*(d)1 (now renumbered 145). Attached to the [546]*546letter 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 Pennsylvania to file answers to the interrogatories within 30 days from the date of service of the order. On December 29, 1975, Westinghouse and appellants stipulated that the interlocutory period for Westinghouse would be extended to February 2, 1976.

None of the defendants filed answers. On January 19, 1976, appellants filed a supplemental praecipe directing the prothonotary to enter a final order of judgment by default. On the same date, the prothonotary entered an order of judgment by default as to liability against United and Pennsylvania.

On January 20, 1976, Pennsylvania filed answers to interrogatories, and, on February 27, 1976, Pennsylvania filed a petition to strike and/or open the judgment. United also filed a petition to strike and/or open the judgment. United asserted that appellants failed to notify it properly under Local Rule 4005*(d) and, that the local rule is in direct contravention of Rule 4019 of Pa.R.Civ.P.,2 thus, nullifying [547]*547the judgment. On May 20, 1976, the court, per Judge LAGAKOS, dismissed both petitions. Both United and Pennsylvania filed motions requesting reargument in the lower court; however, on June 17, 1976, Pennsylvania also filed an appeal to the Superior Court. On November 18, 1976, the lower court per LAGAKOS, denied the motions for reargument. On November 30, 1976, United filed an appeal from both the May 20, 1976, and November 18, 1976 orders. Thereafter, on December 15, 1976, our Court quashed United’s appeal as untimely. United did not petition for allocatur.

Although the docket entries do not reveal the precise date,3 appellee filed a petition and rule to show cause why the court’s orders of May 20, and November 18, 1976, should not be reconsidered. The motions court assigned this petition to Judge GREENBERG. While this petition was pending, our Court handed down a decision in Strickler v. United Elevator Co., Inc., Appeal of Pennsylvania, 248 Pa. Super. 258, 375 A.2d 86 (1977). In Strickler, we reversed the order of the lower court which refused to strike off the default judgment, stating:

“We recognize that the party filing interrogatories can secure a final order after the thirty day interlocutory period has run. The question presented for our consideration is whether service of the unexecuted form of interlocutory order on December 5, 1975, was the required service of the [548]*548interlocutory order handed down on December 16, 1975, and commenced this thirty day period. We conclude that it did not.” Strickler, supra, 248 Pa.Super. at 262, 375 A.2d at 88.

On August 3, 1977, Judge GREENBERG entered an order granting appellee’s petition for reconsideration, vacated Judge LAGAKOS’ order of May 20, 1976, and struck the default judgment. Judge GREENBERG stated that: “In light of the recent promulgation of the Strickler decision, we believe reconsideration is not only appropriate, but obligatory. The procedural mechanism by which Pennsylvania and United suffered default judgment has been declared to be defective, and it would be patently unfair to allow the former an opportunity to defend on the merits while the latter remains shackled to an improperly entered judgment. The interests of justice and equity require that we unlock the chains that were unlawfully placed upon United so that it may have the same full and fair opportunity to defend as has been made available to its co-defendant. So doing, we avoid the unequal treatment of similarly situated litigants that our system of justice attempts so earnestly to avoid.” This appeal followed Judge GREENBERG’S order.

Appellants argue that the lower court, GREEN-BERG, J., had no power to reconsider Judge LAGAKOS' May 20 order. Appellants contend that appellee is bound by this order because it failed to avail itself of the opportunity to perfect a timely appeal. Pennsylvania case law is clear that a party may waive its right to present its contentions in court. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Waiver frequently occurs when a litigant fails to follow established and approved methods of raising allegations of error in the lower court or in appellate courts. For example, waiver occurs: when counsel fails to object to the charge of the court, Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977); when counsel fails to file a timely Rule 1100 motion, Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977); when counsel fails to raise a defense in the lower court, Policino v. Ehrlich, 478. [549]*549Pa. 5, 385 A.2d 968 (1978); and when counsel fails to raise an issue oh appeal, Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977). Moreover, if a disappointed litigant fails to raise an issue on direct appeal in a court of last resort, an appellate court may invoke the waiver doctrine to preclude collateral attack, Commonwealth v. Romberger, supra; Commonwealth v. Gilmore, 464 Pa. 464, 347 A.2d 305 (1975). Even errors of constitutional dimension may be waived. Commonwealth v. Romberger, supra.

In the instant case, appellee failed to file a timely appeal4 to our Court which preserved its allegations of error. The effect of this failure was to establish the May 20 order of the lower court as a final determination of appellee’s liability.

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Bluebook (online)
391 A.2d 614, 257 Pa. Super. 542, 1978 Pa. Super. LEXIS 3110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strickler-v-united-elevator-co-inc-pasuperct-1978.