No. 497 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 77-30395.
Donald W. Bebenek, Pittsburgh, for appellants.
Eric P. Reif, Pittsburgh, for Post-Gazette, appellee.
James C. Kuhn, Pittsburgh, Tomb, appellee.
Hester, Beck and Van der Voort, JJ.
[ 307 Pa. Super. Page 248]
On December 29, 1977, appellants Wade G. Shehady and Wade G. Shehady, Jr., individually and d/b/a Rack of Lamb Restaurant, filed an action in trespass against appellees Pittsburgh Post Gazette and Geoffrey Tomb, alleging the publication of a defamatory statement concerning appellants' restaurant. Discovery proceeded from March 7, 1978, until the case was set for trial. Discovery was completed in October, 1980. On or about December 4, 1980, appellees filed a motion to compel the production of documents in advance of trial, which was denied. Jury selection began on December 8, 1980. However, due to a death in the family of appellants' attorney, the trial was continued until May, 1981.
On December 15, 1980, counsel for the Post-Gazette directed a letter to appellants' attorney requesting the production of detailed financial records concerning appellants' restaurant. By letter of December 30, 1980, counsel for the Post-Gazette notified appellants' counsel that he intended to present a motion to compel these financial records on January 8, 1981. At this time, appellants' individual counsel of record was out of the City. However, an associate of the law firm representing appellants (whose name did not yet appear on the letterhead) wrote the following letter to counsel for the Post-Gazette:
"This letter is to confirm our conversation of January 8, 1981 wherein we agreed that plaintiffs had no objection to the motion to produce, provided we were given 30 days from January 8, 1981 to comply with the court's order."
[ 307 Pa. Super. Page 249]
On January 9, 1981, Judge Farino of the Court of Common Pleas of Allegheny County executed an Order compelling appellants to make available for inspection and copying by counsel for the Post-Gazette the detailed financial records requested.
On March 6, 1981, Judge Wettick executed an Order requiring appellants to produce all of the documents encompassed by Judge Farino's Order of January 9, 1981, on or before March 16, 1981. Subsequently, on March 27, 1981, Judge Wettick executed an Order ". . . that plaintiffs' action be dismissed with prejudice unless there is full compliance with Judge Farino's court order (with any modifications) within 5 days after decision on the petition to reconsider."
On April 6, 1981, appellants presented a petition to Judge Farino requesting that he reconsider his previous Order of ...