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ANN MARIE VORHAUER v. LEON M. MILLER AND MARIE A. MILLER (03/04/83)

filed: March 4, 1983.

ANN MARIE VORHAUER, A MINOR BY CHARLES AND DORIS VORHAUER, HER PARENTS AND NATURAL GUARDIANS, APPELLANTS,
v.
LEON M. MILLER AND MARIE A. MILLER, HIS WIFE



No. 2912 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Division at No. 77-5754-07-02.

COUNSEL

Gary Francis Divito, Philadelphia, for appellants.

Gregory F. Mondjack, Philadelphia, for appellees.

Hester, Johnson and Popovich, JJ.

Author: Popovich

[ 311 Pa. Super. Page 397]

This is an appeal from an Order of the Court of Common Pleas of Bucks County denying plaintiffs-appellants' Petition to Vacate Judgment of Non Pros. Appellants contend that the lower court's failure to vacate the Judgment of Non Pros constituted an abuse of discretion. We disagree and, accordingly, affirm.

The appellants filed a two-count Complaint in Trespass on June 13, 1977 seeking judgment against the defendants-appellees in an amount in excess of $10,000.00 in each count. The Complaint alleged, inter alia, that:

"6. On or about June 22, 1975, at approxiamately [sic] 6:35 p.m., . . . [two] dogs . . . kept by the defendants, attacked the Minor Plaintiff [-- Anne Marie Vorhauer --] who was seated upon her pony 'Pumpkin' and [was] lawfully upon [her] premises . . ., causing the said pony to bolt, and drag the minor Plaintiff through a field.

7. As a result of the aforesaid attack, the Minor Plaintiff was thrown from her pony and dragged along the ground through a field, sustaining severe injuries.

10. As a result of the negligence of the defendants, the Minor Plaintiff suffered severe traumatic injury to her

[ 311 Pa. Super. Page 398]

    left eye, her head, and face; and to her arms, legs, and various other parts of her body, all of which are or may be permanent and continuing."

On September 7, 1977, the appellees served a set of interrogatories on the appellants -- Anne Marie Vorhauer's consisted of 11 questions; Doris and Charles Vorhauer each received a duplicate list of 41 questions. However, because of appellants' counsel's failure to respond to the aforementioned interrogatories, the appellees, pursuant to Pa.R.Civ.P. 4006, secured an Order of Court, dated February 24, 1978, directing appellants to file written answers on or before March 27, 1978 or be subject to sanctions. In compliance therewith, appellants' counsel filed answers on March 6, 1978. The scenario continues with counsel for the appellees serving Charles and Doris Vorhauer with a Notice of Oral Deposition on May 4, 1978. Thereafter, on August 15, 1978, appellants' counsel reciprocated by having a similar notice served on the appellees, Leon and Marie Miller.

As a result of the depositions taken, appellees, on November 29, 1978, served a second set of interrogatories on Anne Marie Vorhauer and her parents, which consisted of 56 questions and requested that written answers be submitted "within twenty (20) days of their service[.]" As before, the appellees had to seek the imprimatur of a court Order, dated January 22, 1979, which "directed and ordered [appellants] to file written Answers to Interrogatories with [ ] . . . defendants[-appellees] on or before Feb. 20, 1979, or be subject to . . . sanctions[.]" On this occasion, appellants again did not comply with the time requirements, even though appellees' counsel granted them a 7-day extension. When the appellants finally did respond on March 7, 1979, appellees were less than satisfied and characterized "the . . . Answers to . . . [the] Interrogatories [as] so grossly inadequate and incomplete it [was] as if they had never been answered at all." (See Appellees' "Petition For Rule to Show Cause Why Appropriate Sanctions Should Not Be Imposed, . . .," Point 9) In an attempt to remedy the situation, appellees obtained a Rule To Show Cause why

[ 311 Pa. Super. Page 399]

    appropriate sanctions should not be imposed, including the possibility of a Judgment of Non Pros, or, in the alternative, why appellants should not be made to more specifically answer appellees interrogatories. The Rule was issued on March 28, 1979 and made returnable by April 16, 1979. Appellants did respond to the Rule To Show Cause; however, as with the two previous court Orders directing the filing of more specific answers or risk the imposition of sanctions, appellants' "Answer To Defendants' Motion For Sanctions" was not only filed after the due date, i.e., April 18, 1979, but constituted no more than an admission to all of appellees' interrogatories save No. 9, which was denied and labelled as "oppressive and designed to cause Plaintiffs excessive and unnecessary annoyance."*fn1 In response to the aforesaid, appellees took action on June 6, 1979 by filing a Memorandum of Law seeking sanctions in the nature of a Judgment of Non Pros or, in the alternative, a more specific answer to their interrogatories.*fn2 For the fourth time, the court entered an Order, dated August 3, 1979, directing appellants, in particular Anne Marie Vorhauer, "to file more specific answers to Interrogatories Nos. 19, 22, 23, 25, 26, 27, 31, 51, 52 within twenty (20) days from [the] date hereof or suffer Judgment of Non Pros." Counsel for appellants does not deny having received the aforementioned Order.

When counsel for appellants failed to file more specific answers, counsel for the appellees, in accordance with the notice requirements of ...


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