Appeal from order of Court of Common Pleas of Northampton County, April T., 1972, No. 235, in case of Harry L. Lapp and Mary Lapp, individually and Harry L. Lapp, Robert H. Littner, Nathan Pisarev and William J. Thompson, t/a East Allen Manor Associates v. Donald W. Titus.
Donald B. Corriere, with him Haber and Corriere, for appellant.
William G. Ross with him Sigmon, Littner & Ross, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Watkins and Jacobs, JJ., dissent.
[ 224 Pa. Super. Page 151]
This is an appeal from the order of the lower court assessing appellant with costs incurred by plaintiff-appellees incident to unsuccessful attempts by them to take appellant's deposition.
On Friday, May 12, 1972, appellees instituted this libel action by filing a praecipe for a writ of summons and having same served upon appellant. On Monday, May 15, 1972, appellees petitioned under Pa. R.C.P. No. 4007(b)*fn1 for leave of court to take the appellant's deposition within 20 days of the commencement of the action. On the same day the court granted appellees leave to take the appellant's deposition on or after May 19, 1972, and/or any day thereafter within the twenty-day period. On Wednesday, May 17, appellants were served with notice that their depositions would be taken on Friday, May 19, at the offices of appellees' counsel.
On Thursday, May 18, appellants filed a motion for a protective order under Pa. R.C.P. No. 4012 demanding
[ 224 Pa. Super. Page 152]
first, that depositions not be taken until appellees first file a complaint; and, second, that the place for the taking of the depositions be changed. Appellees were served with a copy of this motion on the same day.
On Friday, May 19, the day scheduled for the taking of depositions, appellee was present, with stenographer, at the time and place designated in the May 17 notice. Relying upon the advice of counsel, appellant did not attend the scheduled depositions.
On Saturday, May 20, appellant was served with notice that his deposition would be taken on Tuesday, May 23, at the Northampton County Courthouse at 12:30 p.m. Appellant's counsel was notified of this on the following Monday, at which time he prepared a second motion for a protective order which was filed on Tuesday morning, the day on which the depositions were scheduled. The only relief demanded in the second motion was that appellees be required to file a complaint before any depositions be allowed. Appellees were present at the scheduled time and place, but appellant did not attend, relying again upon counsel's advice that he was not required to attend because of the pending motion for a protective order.
Appellees then filed a rule to show cause why appellant should not be held in contempt of court for failing to attend the scheduled depositions. A hearing was held upon the rule on May 30, 1972. The court dismissed the rule, finding appellant not in contempt of court, but, nevertheless, imposing upon him the costs of the aborted depositions.*fn2 ...