April 19, 1985
R.J. FRIED, INC.
PARA ONE CORP., APPELLANT
No. 106 Harrisburg 1984, Appeal from the Order of the Court of Common Pleas, Civil Division, of Dauphin County at No. 3371 S 1982.
Before Wickersham, Del Sole and Popovich, JJ. Del Sole, J. files a dissenting memorandum.
DEL SOLE, J. files a dissenting memorandum.
DEL SOLE, J.
I respectfully dissent. This appeal is occasioned because of the averred failure of officers of the defendant corporation to attend two scheduled depositions and, further, for failure to file a brief or appear at the time that the motion for sanctions was scheduled for argument.
My review of the record does not reveal any finding by the trial court that the defendant's officers failed to attend depositions for which they received proper notice.The record does not contain any indication that the notices of deposition were filed.
Only in the motion for sanctions filed on behalf of the Plaintiff it is averred that notice was given, also it is further averred that exhibits "A", "B", "C" and "D", copies of the notices, are attached but they are not attached to the original of the petition contained in the record.
In the answer to the motion for sanctions the defendant denies receiving notices of the depositions.
The matter was scheduled for argument and neither Appellant or its counsel appeared for the argument or filed a brief.
The trial court then imposed sanctions against the Appellant by entering judgment in the amount of $108,500.00.
My difficulty with the majority opinion is that there is no factual basis which supports the trial court's finding that the Appellant's officers violated the discovery rules since the motion and answer raise a factual question and no record has been established to show that the individuals disregarded notices for depositions.
The trial court appears to me to be basing its ruling upon enforcement of Rule 6.2(b) of the Dauphin County Rules of Court, however, I believe that Pa. R.C.P. 239(f) prohibits the action of the trial court in this case. Rule 239(f) provides:
"No civil action or proceedings shall be dismissed for failure to comply with a local rule other than one promulgated under Rule of Judicial Administration 1901."
The trial court's entering judgment as sanctions in effect dismisses the defendant's case in this matter for failure to file a brief under the local rule is in violation of the prohibition contained in Rule 239.
Therefore, since there is no finding of fact that the Appellant willfully ignored properly scheduled discovery and since Rule 239 prevents the dismissal of a party's cause of action, based upon violation of a local rule, I would be forced to reverse and remand to the trial court. My decision in no way condones the actions of the defendant in this case including the defendant's disregard of oral argument scheduled in our Court.
Further, upon remand, I would allow the trial court to hold a hearing and determine if there was disregard of the discovery rules. If so, the sanctions could be imposed.
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