Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1963, No. 2037, in case of Irvin Rapoport v. George Sirott.
Howard Gittis, with him Steven A. Arbittier, and Wolf, Block, Schorr and Solis-Cohen, for appellant.
Sheldon W. Farber, with him Robert Silverman and Herbert S. Levin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
This is an appeal from a default judgment entered in a trespass action by the Court of Common Pleas No. 6 of Philadelphia County as a sanction under Pa. R. C. P. 4019.
On January 9, 1964, Irvin Rapoport (Rapoport), by the issuance of a summons, instituted a trespass action for criminal conversation against George Sirott (Sirott). Service of this summons was made upon the desk clerk in charge of the Parkway House, Philadelphia, which, Rapoport contends, was the residence of Sirott at that time. According to an affidavit of record -- unnoted on the docket entries -- Sirott, on February 1, 1964, was served in the same manner and place with a notice that his deposition, in aid of discovery under Pa. R. C. P. 4007, would be taken on February 4, 1964. Sirott did not appear at that deposition.*fn1
On February 19, 1964, a complaint*fn2 was served upon Sirott personally in Camden, New Jersey. Five days thereafter, Sirott filed preliminary objections which challenged the validity of the service both of the summons and complaint, and, at the same time, moved for a protective order until such time as the court determined the questions raised on the preliminary objections and, if such determination was adverse to Sirott, until the pleadings were closed. One day thereafter, Sirott's counsel was notified that Sirott's deposition would be taken on February 25, 1964; on February 24, 1964, Sirott's counsel again moved for a protective order and, pending disposition thereof, Sirott did not appear for that deposition.
While disposition of Sirott's preliminary objections was pending, Rapoport's counsel notified the manager of the Parkway House that he intended to take his deposition on March 23, 1964; again Sirott's counsel moved for a protective order alleging that at the time fixed he was engaged in the trial of a case in the federal court. Allegedly as an accommodation to Sirott's counsel, a new date for taking this deposition was fixed, Sirott's counsel did appear and the deposition of the Parkway House manager was taken. Thereafter, on the basis of this deposition, the court overruled Sirott's preliminary objections (April 9, 1964) and the motion for a protective order (April 14, 1964) and Sirott then filed an answer containing new matter to which Rapoport filed a reply.
Allegedly after unsuccessful efforts of Rapoport's counsel to persuade Sirott's counsel to have Sirott appear for depositions, on June 3, 1964, Rapoport moved for the imposition of a sanction by way of a default judgment against Sirott. This motion for a sanction was based upon the failure of Sirott to appear for deposition after notices given on February 1 and 25, 1964, and the court was requested to direct Sirott to appear for depositions within 20 days or suffer a default judgment. Two days later Rapoport filed a new notice to take the deposition of Sirott on June 11, 1964, and, on June 10, 1964, Sirott's counsel moved for another protective order requesting that Sirott's deposition be taken upon written interrogatories or, in the alternative, upon oral examination in Nevada which, allegedly, was then the place of Sirott's residence. In this motion for a protective ...