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APPEL VENDING CO. v. 1601 CORP. (ET AL. (09/17/64)

decided: September 17, 1964.

APPEL VENDING CO., ASSIGNEE,
v.
1601 CORP. (ET AL., APPELLANT)



Appeals from orders of County Court of Philadelphia, June T., 1960, No. 7924-D, in cases of Appel Vending Co., assignee of Globe Consumer Discount Company, v. 1601 Corp. et al.; and Jacob Sandler, assignee of Globe Consumer Discount Company, v. Samuel Dowburd et al.

COUNSEL

Ronald N. Rutenberg, with him Harry A. Rutenberg, for appellant.

Philip Shuchman, for appellees.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.

Author: Flood

[ 204 Pa. Super. Page 245]

The appellees in these cases entered judgments against the garnishee-appellant for failure to file answers to interrogatories. The garnishee has appealed from the discharge of its rules to strike and open.

1. The garnishee seeks to have the judgment in favor of Appel Vending Company stricken off because that company's interrogatories directed to the garnishee were entitled "Interrogatories in Aid of Execution under Pa. R. C. P. No. 3117A". It argues that the only sanctions provided for failure to answer interrogatories under Rule 3117(a) are those provided by Pa. R. C. P. No. 4019, which do not include the entry of a default judgment.

This argument is not persuasive. Four of these interrogatories (Nos. 7 to 10) were of the type normally directed to a garnishee under Pa. R. C. P. No. 3144, relating to property of the defendant in his possession. We think entry of judgment for failure to answer them was authorized and appropriate under Pa. R. C. P. No. 3146. Mere mislabelling is not sufficient reason for depriving the plaintiff of his right to

[ 204 Pa. Super. Page 246]

    a judgment under Pa. R. C. P. No. 3146 against the defaulting garnishee who failed to file answers to such interrogatories within the required time. The mislabelling could not mislead the garnishee since interrogatories under Rule 3144 also serve the purpose of aiding execution.

Moreover, contrary to the garnishee's contention, Rule 4019(c)(3) provides that in an appropriate case the court may enter judgment by default against a "disobedient party". Since the plaintiff in attachment proceedings stands in the shoes of the defendant as to any claim he has against the garnishee (Fleming v. Quaid, 204 Pa. Superior Ct. 19, 201 A.2d 252 (1964)), the interrogatories were directed to an adverse party under Pa. R. C. P. Nos. 3117 and 4005. Failure to answer such interrogatories, as required by Pa. R. C. P. No. 4006 makes the garnishee a "disobedient party" within the intendment of subsections (a)(1) and (c)(3) of Pa. R. C. P. No. 4019. The court below, therefore, had the authority to enter the default judgment both under Pa. R. C. P. No. 3146 and Pa. R. C. P. No. 4019.

The court's refusal to strike a judgment entered by the prothonotary for failure to answer interrogatories is equivalent to the entry of judgment by the court. Any infirmity due to entry by the prothonotary instead of the court was cured by this order.

It is true that except for Nos. 7 to 10, mentioned above, Appel's interrogatories appear to be directed toward discovering the whereabouts of transferred assets of the defendant, whether in the hands of the garnishee or elsewhere. These are interrogatories which the garnishee might well not be able to answer. Failure to answer them would not in itself entitle the plaintiff to judgment without more information than is ...


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