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ALLEN L. FEINGOLD v. PHILADELPHIA NATIONAL BANK AND BANKAMERICA SERVICE CORP. (05/13/83)

filed: May 13, 1983.

ALLEN L. FEINGOLD, APPELLANT,
v.
THE PHILADELPHIA NATIONAL BANK AND BANKAMERICA SERVICE CORP.



No. 2208 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County Civil Division, at No. 2085 July Term, 1979

COUNSEL

James L. Womer, Jr., Philadelphia, for appellant.

Anastasius Efstratiades, Philadelphia, for appellees.

Brosky, Wieand and Beck, JJ.

Author: Brosky

[ 313 Pa. Super. Page 580]

This is an appeal from the order dismissing appellant's complaint with prejudice as a sanction for failure to obey a discovery order of the court below. Appellant contends that the imposition of this particular sanction was inappropriate, constituting an abuse of discretion by the lower court. We agree with appellant and, accordingly, reverse and remand.

On July 13, 1979, appellant filed a complaint against appellees, The Philadelphia National Bank (PNB) and Bankamerica Service Corporation. The complaint included four counts, one in assumpsit and three in trespass. Appellant alleged that appellees had stopped his credit privileges without notice and as a result he had suffered embarrassment, humiliation, and loss of business and goodwill. He averred that appellees' actions constituted fraudulent misrepresentations; intentional infliction of emotional distress; libel, including libel per se; and breach of contract.

After the close of the pleadings, appellant PNB filed interrogatories requesting, inter alia, the dates and places

[ 313 Pa. Super. Page 581]

    of the alleged embarrassment, names of witnesses, and amount of financial loss. Appellant failed to answer the interrogatories within the required period and on November 5, 1979, PNB filed a motion for sanctions. As a result, on January 14, 1980, the court below ordered appellant to file answers within twenty days or suffer a judgment of non pros. Appellant answered the interrogatories on February 4, 1980, but did not include in his answers any names of witnesses or any amount or explanation of the alleged business and financial loss.*fn1 PNB filed a motion for sanctions suggesting the following alternative sanctions: that the court below (1) foreclose appellant from supporting his various claims for embarrassment, humiliation and lost business; (2) prohibit his offering testimony from any of the unnamed witnesses; and (3) dismiss the complaint with prejudice. On September 19, 1980, the lower court ordered appellant's complaint dismissed with prejudice. This appeal followed.

The imposition of sanctions is governed by Pa.R.C.P. 4019 which provides in relevant part the following:

Rule 4019. Sanctions

(a)(1) The Court may on Motion, make an ...


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