Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1966, No. 4031, in case of Richard Scharfman v. Philadelphia Transportation Company.
Lewis Van Dusen, Jr., with him James D. McCrudden, for appellant.
Abraham J. Golden, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J.
[ 234 Pa. Super. Page 565]
The appellant contends that the court below improperly refused to grant its petition to open judgment which had been entered as a sanction for failure to file answers to interrogatories.
The complicated procedural history of this case may be summarized as follows: The plaintiff-appellee initiated this action on November 16, 1966, by filing a complaint in trespass, alleging injuries suffered as a result of the appellant's negligence. The appellant did not file an answer, but an appearance in its behalf was entered by Lynwood F. Blount, Esquire, on December 1, 1966. Subsequently, both parties filed and answered interrogatories. On September 25, 1969, the appellee filed a certificate of readiness, requesting that the trial be non-jury. The docket reveals that the appellee filed supplemental interrogatories, which were forwarded to the appellant's attorney, Mr. Blount, on December 28, 1970. The interrogatories were never answered. Mr. Blount withdrew from the case on March 30, 1971, and on the same day, the appellant's present attorney entered an appearance.
The appellee continued to send requests for answers to the supplemental interrogatories to Mr. Blount. When no response was forthcoming, the appellee filed a motion for sanctions.*fn1 On June 25, 1971, Judge Hirsh granted the appellee's motion. Pursuant to Rule 4019(c)(3) of the Pennsylvania Rules of Civil Procedure, he ordered that judgment be entered in favor of the appellee and
[ 234 Pa. Super. Page 566]
that the trial proceed only on the issue of damages. See Isenberger v. Schumann, 415 Pa. 217, 203 A.2d 136 (1964); Spilove v. Cross Transportation, Inc., 223 Pa. Superior Ct. 143, 297 A.2d 155 (1972). On December 15, 1971, the appellee filed a petition to open the judgment.*fn2 The petition was denied by Judge Hirsh on June 20, 1972. On June 28, 1972, the appellant filed a petition requesting oral argument, but this was dismissed without prejudice on August 10, 1972. A petition for reconsideration was filed by the appellant on December 18, 1972. This petition was denied with prejudice on December 26, 1972. At no time did the appellant file an appeal to this Court from any of the orders issued by the motions judge.
The case proceeded to trial solely on the issue of damages, which were assessed in the sum of $25,534.33. Prior to trial, the appellant orally requested the court to open the judgment and allow the appellant to enter a defense on the issue of liability. This appeal followed the denial of that motion.
The appellant contends that the judgment entered on June 25, 1971, and the orders entered on June 20, 1972, and December 26, 1972, were interlocutory in nature. The appellant argues, therefore, that as the aggrieved party, it had the option of taking an ...