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TRIOLO v. PHILADELPHIA COCA COLA BOTTLING CO. (10/09/70)

decided: October 9, 1970.

TRIOLO, APPELLANT,
v.
PHILADELPHIA COCA COLA BOTTLING CO.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1968, No. 171, in case of Charles Triolo v. Philadelphia Coca Cola Bottling Co.

COUNSEL

David Gold, for appellant.

Martin J. Corr, with him Liebert, Harvey, Herting, Short & Lavin, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 440 Pa. Page 165]

On August 8, 1967, a soda pop bottle allegedly exploded in appellant's grocery store, causing appellant the loss of his right eye. Suit was instituted against appellee, Philadelphia Coca Cola Bottling Company, on November 8, 1968. On February 14, 1969, appellant filed interrogatories*fn1 on appellee, the interrogatories noting that an answer was required to be filed within twenty days. See Pa. R. C. P. 4006. On April 11, 1969, appellant, not having yet received appellee's answers, wrote a letter to counsel for appellee requesting the answers and advising appellee that a motion for

[ 440 Pa. Page 166]

    sanctions would be filed if the answers were not submitted by April 18. No answers were received and appellant filed his motion on April 24.

On May 20 the court, per Judge Barbieri, ordered appellee to file answers within thirty days. The order further provided that if the answers were not filed within that time, appellant could, by filing a praecipe, enter judgment against appellant. On June 16, four days before the answers were due, counsel for appellant and appellee engaged in a telephone conversation in which, among other things, appellant again requested the answers. Counsel for appellee stated that the interrogatories were out to the client for answer. No answers were filed on the June 20 deadline.

On June 27 counsel for appellant again wrote counsel for appellee requesting the answers. On July 8 counsel for appellant attempted to contact counsel for appellee by telephone; the latter never returned the call. On July 10 -- twenty days after the due date specified in Judge Barbieri's order, and almost four months after the date the answers were originally due -- appellant entered judgment against appellee.

On August 1 appellee filed a petition to open the judgment, alleging basically, that it had been confused by counsel for appellant and believed that counsel was not serious about enforcing Judge Barbieri's order.*fn2

[ 440 Pa. Page 167]

Additionally, appellee alleged that it had "a valid defense" to appellant's claim. The court granted the petition to open. ...


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