544 A.2d 929 (Pa. 1988), McFarland v. Whitham

Citation:544 A.2d 929, 518 Pa. 496
Opinion Judge:Author: Flaherty
Party Name:Jeanne McFARLAND, Individually and Jeanne McFarland, Administratrix of the Estate of Robert C. McFarland, Deceased, Appellant, v. H. Christopher WHITHAM, D.D.S., Appellee.
Case Date:July 27, 1988
Court:Supreme Court of Pennsylvania
 
FREE EXCERPT

Page 929

544 A.2d 929 (Pa. 1988)

518 Pa. 496

Jeanne McFARLAND, Individually and Jeanne McFarland,

Administratrix of the Estate of Robert C.

McFarland, Deceased, Appellant,

v.

H. Christopher WHITHAM, D.D.S., Appellee.

Supreme Court of Pennsylvania.

July 27, 1988

Argued April 13, 1988.

Reargument Denied Sept. 19, 1988.

[518 Pa. 497] Joseph F. Leeson, Jr., William P. Leeson, Bethlehem, for appellant.

David E. Faust, Barbara S. Magen, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal from a memorandum opinion and per curiam order of the Superior Court, 363 Pa.Super. 648, 522 A.2d 666 (1987), which affirmed an order of the Court of Common Pleas of Lehigh County granting a petition to open a default judgment. The default judgment had been entered in favor of the plaintiff, appellant Jeanne McFarland, in a wrongful death and survival action alleging malpractice of the defendant dentist, appellee H. Christopher Whitham, D.D.S. The facts of the case are as follows.

On October 1, 1985, the instant wrongful death and survival action was filed, and notice was given to file responsive pleadings within twenty days as provided by Pa.R.C.P. 1026. Responsive pleadings were not, however, filed; hence, on October

Page 930

21, 1985 plaintiff mailed a notice of default to defendant and his insurance carrier, advising them that, unless appropriate actions were taken within ten days, a default judgment might be entered. Defendant unexplainably waited until October 24, 1985, well beyond the original twenty day period allowed, to retain counsel to represent him in the matter. Counsel immediately contacted the office of plaintiff's counsel and secured an extension, of unspecified but reasonable duration, to avoid entry of a default judgment. Plaintiff's counsel later confirmed this extension by letter dated November 12, 1985, stating that the extension would expire on December 4, 1985. On December 6, 1985, inasmuch as no answer to plaintiff's [518 Pa. 498] complaint had yet been filed, a default judgment was entered. Soon after receiving notice that the judgment had been entered, defense counsel filed an answer to plaintiff's complaint, and, on December 16, 1985, filed a petition to open the judgment. After consideration of the merits...

To continue reading

FREE SIGN UP