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WILLS EQUIPMENT COMPANY v. GOLDMAN ENTERPRISES (02/10/84)

filed: February 10, 1984.

WILLS EQUIPMENT COMPANY
v.
GOLDMAN ENTERPRISES, INC. AND PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, APPELLANTS



No. 21 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of York County at No. 80-S-1713.

COUNSEL

Thomas I. Puleo, Philadelphia, for appellants.

Donald L. Reihart, York, for appellee.

Wickersham, Beck and Montemuro, JJ.

Author: Wickersham

[ 325 Pa. Super. Page 117]

This is an appeal from the order of the Court of Common Pleas of York County granting appellee's motion for sanctions by entering a default judgment in favor of appellee and against appellants. We reverse and remand.

A close look at the procedural facts is necessary to the determination of this appeal. Appellee, Wills Equipment Company, is a Pennsylvania corporation. Appellant Goldman Enterprises, Inc. (hereinafter referred to as "Goldman") is a New Jersey corporation and appellant Pennsylvania National Mutual Casualty Insurance Company (hereinafter referred to as "Pennsylvania National") is a Pennsylvania Corporation.

This case arises from a contract between the appellee and appellant Goldman, in which appellee agreed to sell, deliver, and install a number of mechanical doors to be used in connection with a construction project at Lakehurst Naval Air Station, Lakehurst, New Jersey. Appellee claims that Goldman did not make full payment for the doors, and on May 8, 1980, appellee filed a complaint in assumpsit against Goldman and also against appellant Pennsylvania National, as surety on a performance and payment bond executed between Goldman and Pennsylvania National.

[ 325 Pa. Super. Page 118]

Both appellants, who at all times relevant to this appeal have been represented by the same counsel, filed preliminary objections to the complaint on June 20, 1980. Specifically, appellants asserted a lack of subject matter jurisdiction over the action on the payment bond and of in personam jurisdiction over Goldman. The court below denied the preliminary objections in an opinion dated November 6, 1980. Thereafter, appellants filed an answer, new matter, and counterclaim. Appellee filed a reply and the pleadings were closed with the filing of appellants' counter-reply on January 12, 1981.

Appellants began discovery by a request for production of documents. On February 13, 1981, appellee served upon Goldman a set of interrogatories. By August 10, 1981, Goldman had not yet answered the interrogatories; therefore, appellee filed a motion for sanctions for failure to answer the interrogatories. Goldman filed an answer to appellee's motion for sanctions on August 24, 1981, in which it requested an additional thirty (30) days to answer the interrogatories. There was apparently no ruling upon that request, but in any case, the thirty days passed without any answers to the interrogatories being served. On December 17, 1981, appellee filed a brief in support of its motion for sanctions, which was served upon Goldman several days later. No responsive brief was filed by Goldman despite Local Rule 31*fn1 which required Goldman to file such a brief

[ 325 Pa. Super. Page 119]

    within ten (10) days after service or suffer the relief requested by the appellee. On January 12, 1982, the lower court entered an order pursuant to Local Rule 31 and Pa.R.C.P. 4019*fn2 granting the relief requested in appellee's

[ 325 Pa. Super. Page 120]

    motion for sanctions by entering a default judgment in favor of appellee and against both appellants. Appellants appeal from both this order and the ...


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