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PATRICK DUNN v. MAISLIN TRANSPORT LIMITED (02/11/83)

filed: February 11, 1983.

PATRICK DUNN
v.
MAISLIN TRANSPORT LIMITED, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE DOMINION OF CANADA, AND GUY CASTIGLIA, APPELLANTS



No. 1360 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Lackawanna County, Trespass, at No. 1622 September Term, 1978.

COUNSEL

Mark A. Ciavarella, Jr., Wilkes-Barre, for appellants.

John J. Byrne, Scranton, for appellee.

McEwen, Johnson and Watkins, JJ. Watkins, J., files a dissenting opinion.

Author: Johnson

[ 310 Pa. Super. Page 323]

This case presents the issue of whether an order precluding defendants from entering any defense at trial as to plaintiff's claim, where unverified answers to interrogatories have already been delivered to plaintiff, constitutes an abuse of discretion as an inappropriate sanction under Pa.R.C.P. 4019. Because our review of the facts leads to the conclusion that the sanction here imposed was unwarranted, we reverse and remand.

This action, involving damage claims for both personal injury and property loss, arose out of a collision between plaintiff's 1976 Lincoln automobile and a tractor-trailer owned by the corporate defendant and operated by the individual defendant. The accident occurred on Interstate Route 84 in Lackawanna County at approximately 4:45 a.m. on October 3, 1977. An original complaint was filed on September 5, 1978, and amended complaints were filed on December 6, 1978 and July 3, 1979.

On January 30, 1979, interrogatories propounded by the plaintiff to each of the defendants were filed. On July 21,

[ 310 Pa. Super. Page 3241980]

, a year following the filing of plaintiff's second amended complaint, he secured a rule on the defendants to show cause why sanctions should not be imposed for defendants' failure to either object or make answer to the interrogatories. In his motion for sanctions, pursuant to Rule 4019(a), plaintiff suggested five alternative sanctions for the consideration of the court:

The sanction order suggested is:

1. To refuse to allow the Defendant, MAISLIN TRANSPORT LIMITED and GUY CASTIGLIA, to support or oppose designated claims or defenses at trial or hearing in this matter.

2. To construe, for the purpose of the trial or hearing, the facts covered by the Interrogatories to be established in the ...


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