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MOORE v. HOWARD P. FOLEY COMPANY (06/24/75)

decided: June 24, 1975.

MOORE
v.
HOWARD P. FOLEY COMPANY, ET AL., APPELLANTS



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1967, No. 4658, in case of Estie Moore v. Howard P. Foley Company, McCloskey & Company, Davidson, Inc., and William Armstrong & Sons, Inc.

COUNSEL

Robert St. Leger Goggin, with him Marshall, Dennehey & Warner, for appellant, Howard P. Foley Company, at No. 385.

John F. McElvenny, for appellant, William Armstrong & Sons, Inc., at No. 419.

Joseph I. Fineman, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring and Dissenting Opinion by Cercone, J. Watkins, P. J., and Price, J., join.

Author: Van Der Voort

[ 235 Pa. Super. Page 312]

Appeal is taken to this Court from denial of appellants' motions for new trial and judgment n.o.v. Trial had been held on March 27, 1973, at which time certain eyewitness and expert testimony was heard. The jury returned a verdict against appellants Foley and Armstrong. Each appeal will be discussed separately within.

THE APPEAL OF HOWARD P. FOLEY COMPANY

Foley was the electrical subcontractor in the construction of Strawbridge & Clothier's store at the Plymouth

[ 235 Pa. Super. Page 313]

Meeting Mall in Montgomery County, Pennsylvania. The appellee was employed by Armstrong which was the plastering subcontractor. On September 24, 1965, the appellee was pushing a wheelbarrow loaded with plaster along a floor when the wheelbarrow struck a conduit sticking up through the cement floor forcing the handle of the wheelbarrow into his groin and causing severe injuries. A jury returned a verdict in favor of the appellee and against Foley and Armstrong in the amount of three hundred thousand ($300,000.00) dollars. Motions for a new trial and judgment n.o.v. were denied and this appeal was taken. The appellee filed his suit on May 5, 1967 against Foley who filed a complaint on December 7, 1970 to join Armstrong.*fn1

Foley (who will be designated appellant hereinafter) served upon appellee continuing interrogatories on August 4, 1967, asking for the names and addresses of all physicians who had examined the appellee.*fn2 In answering these interrogatories, appellee gave the names and addresses of ten physicians, but never gave the appellant the name and address of Dr. Benjamin A. Gouley of Philadelphia.*fn3 A jury trial was held commencing on March 27, 1973. On the first day of the trial, appellant learned that Dr. Gouley had examined appellee on October 26, 1972, had made a report on February 8, 1973, and that appellee intended to call him as a witness. On the second day of the trial, Dr. Gouley was called as a witness for appellee. Appellant objected to his testifying because there had been no disclosure by the appellee of this expert witness. The trial judge permitted Dr. Gouley to testify.

[ 235 Pa. Super. Page 314]

In his testimony Dr. Gouley said that appellee had suffered as a result of his injuries among other things a myocardial infarction, commonly known as a heart attack, and also pulmonary emphysema. This was the first notice, 7 1/2 years after the accident, that appellant had of appellee's claim for the injuries of myocardial infarction and pulmonary emphysema.*fn4 He testified further that the myocardial insufficiency was one of the two important injuries sustained by appellee in his accident of September 24, 1965.

We have a situation in which counsel for the appellee knew that Dr. Gouley had examined appellee on October 26, 1972, five months before trial. He also knew that Dr. Gouley had made a report in which he noted myocardial infarction and pulmonary emphysema on February 8, 1973, more than six weeks prior to trial; notwithstanding this knowledge he never disclosed the name of Dr. Gouley to the appellant or his counsel until the first day of the trial. All indications are that there was a wilful failure to file sufficient answers to the written interrogatories. The Pennsylvania Rules of Civil Procedure provide, in part, that ...


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