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WILLIAM J. FOX v. FRANK K. GABLER (10/24/80)

filed: October 24, 1980.

WILLIAM J. FOX
v.
FRANK K. GABLER, APPELLANT



No. 2950 October Term, 1978, Appeal from the Order dated November 9, 1978 Court of Common Pleas, CIVIL ACTION-LAW, County of Montgomery, at No. 74-14664

COUNSEL

Michael Yanoff, Lansdale, for appellant.

Charles Weiss, Ambler, for appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Sugerman

[ 282 Pa. Super. Page 491]

Appellant, Defendant below, appeals from an order of the lower court refusing to open or strike a default judgment entered against him by the Prothonotary of Montgomery County, pursuant to Appellee's praecipe, for the failure of Appellant to file answers to Appellee's interrogatories.

The acrimonious and protracted litigation underlying the instant appeal commenced in 1974 when Appellee, as Plaintiff below, filed a complaint in equity against Appellant wherein Appellee alleged that he was an undisclosed partner with Appellant in the ownership of a restaurant and tavern business. The complaint sought, inter alia, an accounting of profits for the nine-year period preceding the filing of the complaint. Appellant by answer, denied the existence of any such relationship.

[ 282 Pa. Super. Page 492]

On August 22, 1977, Appellee filed and served upon Appellant written interrogatories pursuant to Pa.R.C.P.No. 4005. Interrogatories Nos. 7, 8, 9 and 10 sought financial information from Appellant including the gross and net profits of the business, salary and other remuneration and benefits received therefrom by Appellant, the location of Appellant's bank accounts, production of tax returns, and other similar information.

Appellant filed answers to Appellee's Interrogatories on October 11, 1977, and in response to interrogatory No. 7, Appellant responded as follows:

"7. The undersigned has written to William Pollen, the defendant's accountant, and requested the information set forth in question 7. As soon as the information is received, it will be forwarded to the attorney for the plaintiff. Please note that some of the information requested may be the subject of an investigation by the Internal Revenue Service and this information will be produced as soon as the investigation terminates. The defendant has filed a Motion for Protective Order on or about October 5, 1977 concerning discovery of information which is the subject of the IRS investigation."

The answers to interrogatories Nos. 8, 9 and 10 were the same.

Obviously dissatisfied with Appellant's responses, Appellee on October 19, 1977, filed a Motion for Sanctions for the failure to file answers to interrogatories Nos. 7, 8, 9 and 10. On November 15, 1977, the lower court, by Judge STEFAN granted the Motion and ...


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