No. 826 philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action - Law of Phila. County at No. 1009 Oct. Term 1976.
James L. Womer, Philadelphia, for appellants.
Brian M. Peters, Philadelphia, for appellee.
Spaeth, Rowley and Cirillo, JJ. Cirillo, J., files a concurring opinion.
[ 301 Pa. Super. Page 339]
This appeal is from an order dismissing appellant's complaint with prejudice pursuant to Pa.R.C.P. 4019 for repeatedly failing to answer appellee's supplemental interrogatories. The procedural history of this case is adequately discussed by the lower court. On appeal, appellant argues that the lower court abused its discretion by dismissing the complaint with prejudice when other less severe sanctions were available under the rule. We agree. Although we can well understand the lower court's frustration with appellant's counsel, we nevertheless think it was unduly harsh to preclude appellant's claim.
Reversed and remanded. Lower court to enter an order precluding appellant from proving any damages which were the subject of appellee's interrogatories.
[ 301 Pa. Super. Page 340]
CIRILLO, Judge, concurring.
I agree with the majority that rather than preclude appellant's claim, it is more appropriate to prevent appellant from proving damages which were the subject of appellee's interrogatories.
In addition to the above sanction, I would require appellant's attorney, Mr. Feingold, to pay to appellee the reasonable expenses, including attorney's fees, incurred in obtaining the order of compliance and the order for sanctions.*fn1
Authority for our imposition of expenses upon Mr. Feingold may be found at Pa.R.C.P. No. 4019(g)(1) which provides that:
Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney's fees, incurred in obtaining the order of compliance and the order for ...