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POMPA v. HOJNACKI (10/12/71)

decided: October 12, 1971.

POMPA, APPELLANT,
v.
HOJNACKI



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1962, Nos. 2504 and 3623, in case of Paul Pompa v. Wallace Hojnacki and Stella Olzewski t/a Bridesburg Bottling Co. and Paul Pompa v. Lefty's Edgemont Hotel, Henry F. Ortlieb Brewing Co., and Owens Illinois Glass Co., Inc.

COUNSEL

Ralph Schwartz, for appellant.

A. Grant Sprecher and Nathaniel D'Amico, with them William J. Ryan, James J. McEldrew, Obermayer, Rebmann, Maxwell and Hippel, and McEldrew, Hanamirian, McWilliams, Quinn and Bradley, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this dissenting opinion.

Author: Roberts

[ 445 Pa. Page 44]

This appeal raises the question of the admissibility of the "factual statements" contained in an expert's report prepared for purposes of litigation. We hold that the report was inadmissible hearsay, vacate the judgment and remand for a new trial.

Appellant-plaintiff was injured by fragments of glass from a broken beer bottle. He brought suit against the brewer, the distributor, the retail seller and the bottle manufacturer claiming that the bottle exploded because of a defect in its manufacture or distribution. Appellant retained bottle fragments as evidence which appellee's expert, L. G. Ghering, examined prior to trial. Ghering submitted to appellee a written report summarizing his observations and findings. Prior to trial, Ghering died, and appellee again moved to have an expert examine the fragments and prepare a new report. Appellant produced only two small pieces of glass, asserting that the rest had disappeared.

Appellee, Owens-Illinois, moved for sanctions under Rule 4019 of the Pennsylvania Rules of Civil Procedure seeking to have the case dismissed. In an order dated February 20, 1969, the court denied appellee's motion "without prejudice to defendant's right to offer into evidence at time of trial any factual statements from the report of L. G. Ghering." The "factual statements" were admitted at trial over the objection of appellant. Another expert witness testified for appellee on the basis of the report introduced into evidence. Appellee also introduced into evidence the deposition of one Doctor Robert E. King who had taken Pompa's medical history before treatment was administered. Appellant objected on the ground that appellee had not adequately proved that Dr. King was unavailable to testify. The objection was overruled.

A verdict was returned in favor of all defendants. The court en banc dismissed appellant's motion for a

[ 445 Pa. Page 45]

    new trial and entered judgment on the verdict. This appeal followed.

Appellees argue that the "factual statements" in Ghering's report were properly introduced into evidence as a sanction imposed on appellant for losing most of the bottle fragments. We cannot agree. Rule 4019 authorizes the court to enter "an appropriate order if . . . (3) a party . . . refuses . . . to obey . . . an order of court made under Rule 4009 to produce any tangible thing for inspection. . . ." Pa. R. C. P. 4019 (a) (3). There was no refusal to obey an order in this case. Appellant responded to the court's order to produce with the evidence he then possessed, the two small fragments of glass. Appellant could do no more. The rest of the glass fragments had disappeared prior to the court's order and were not available for production. It is not argued nor does the record indicate any intentional destruction or negligent mishandling of the bottle fragments in order to avoid obedience to the court's order.

While the imposition of sanctions under Rule 4019 lies largely within the discretion of the court, it is well accepted that sanctions will not be imposed in the absence of some wilful disregard or disobedience of an order of court or an obligation expressly stated in the Rules and invoked by a request of the opposing party. See Rapoport v. Sirott, 418 Pa. 50, 56, 209 A.2d 421, 424 (1965); Calderaio v. Ross, 395 Pa. 196, 198-99, 150 A.2d 110, 111 (1959); 4 Goodrich-Amram, Standard Pennsylvania Practice § 4019 at 618-28 (Supp. 1971). See also 4 Moore, Federal Practice §§ 37.03(2), 37.05 (1970). Appellant ...


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