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EDWARD ROMAN AND CATHERINE ROMAN v. ROBERT S. PEARLSTEIN (06/22/84)

filed: June 22, 1984.

EDWARD ROMAN AND CATHERINE ROMAN, H/W
v.
ROBERT S. PEARLSTEIN, T/A EMPIRE REALTY AND ALLEN J. GOLDSTEIN, RONALD RAPP AND JEANETTE RAPP, H/W AND TOM DUNPHY, INC. APPEAL OF ROBERT S. PEARLSTEIN, T/A EMPIRE REALTY



NO. 944 PHILA. 1982, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil No. 3752 August, 1978

COUNSEL

Manuel A. Spigler, Philadelphia, for appellant.

Neil A. Morris, Philadelphia, for Roman, appellees.

Lloyd Norris, Philadelphia, for Rapp, appellees.

Macker Duffy, Jr., Philadelphia, for Dunphy, appellee.

Spaeth, P.j., and Brosky and Hoffman, JJ.

Author: Spaeth

[ 329 Pa. Super. Page 395]

This is an appeal from an order imposing sanctions for refusal to make discovery. The sanctions were that appellant must pay appellees' counsel a fee of $500, and that appellant is "preclud[ed] . . . from introducing any evidence and examining any witnesses at the trial." We find the order reasonable as to the counsel fee but, in the circumstances, otherwise too severe. We therefore reverse so that the court may impose a more appropriate sanction.

Appellees' complaint alleges that appellant "entered into an unlawful and fraudulent conspiracy" to induce appellees into purchasing a termite infested house. Amended Complaint in Trespass and Assumpsit at para. 44. On July 23, 1981, appellees filed a motion to compel appellant to produce his income tax returns for the years 1978, '79, and '80, and to answer certain interrogatories relating to his financial condition. Appellees argued that this information was relevant to their claim for punitive damages. Appellant argued that he did not have to produce the tax returns or answer the interrogatories because appellees had not made a prima

[ 329 Pa. Super. Page 396]

    facie showing that punitive damages should be awarded. The trial court found that appellees had "surpassed the threshold of a prima facie showing of entitlement to punitive damages", slip op. of trial court at 13, and on October 29, 1981, issued an order granting appellees' motion to compel the discovery. The order provided that appellant "shall provide the above within twenty (20) days from the date of this Order. Failure to comply with this Order will result in sanctions upon application to the Court."

Appellant failed to comply with the order but on November 17, 1981, filed a motion for reconsideration and requested oral argument. The trial court issued a rule to show cause, returnable December 22. When appellant failed to appear for argument on December 22, the trial court, relying on the submitted memoranda of counsel, issued an order on January 7, 1982, denying appellant's motion for reconsideration and reinstating the order of October 29. Again the court warned that "failure to comply . . . will result in sanctions upon application to the Court."

Once again appellant did not comply with the order. Instead, on January 27, 1982, he filed a "Petition to Set Aside" the order, claiming that the trial court had denied reconsideration merely because his counsel did not appear for argument, and requesting a rescheduling of oral argument and a decision on the merits of the motion for reconsideration. Appellees filed an answer to appellant's petition, including in the answer a section entitled "New Matter",*fn1 which amounted to an application for sanctions. Appellant filed an objection to the ...


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