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MILLER ORAL SURGERY v. DONALD D. DINELLO (05/24/85)

filed: May 24, 1985.

MILLER ORAL SURGERY, INC.
v.
DONALD D. DINELLO, D.M.D., C. RICHARD MILLER, D.D.S., WESLEY SABOCHECK, D.M.D., AND DONALD D. DINELLO, D.M.D., P.C. APPEAL OF DONALD D. DINELLO, D.M.D., WESLEY SABOCHECK, D.M.D., AND DONALD D. DINELLO, D.M.D., P.C.



Appeal from Order of the Court of Common Pleas, Civil Division, of Dauphin County, No. 275-S-1981.

COUNSEL

Joseph J. Malatesta, Jr., Harrisburg, for appellants.

Charles W. Rubendall, II, Harrisburg, for appellee.

Wickersham, Wieand and Hester, JJ.

Author: Wieand

[ 342 Pa. Super. Page 578]

Miller Oral Surgery, Inc. commenced an action for damages against Donald D. Dinello, D.M.D., C. Richard Miller, D.D.S., Wesley Sabocheck, D.M.D., and Dr. Dinello's professional corporation on grounds that the defendants had tortiously interfered with plaintiff's business relationships by accepting and treating as patients persons whom defendants knew to be patients of plaintiff. This occurred, it was alleged, because defendants were occupying office space

[ 342 Pa. Super. Page 579]

    formerly leased to and used by plaintiff, and also because C. Richard Miller, who had formerly been associated with plaintiff, was diverting plaintiff's patients to the defendants. Plaintiff sought by discovery to obtain*fn1 the names and addresses of patients treated by defendants at plaintiff's former offices. Defendants moved for a protective order. It was denied. After the motion for protective order had been denied,*fn2 defendant-appellants refused to produce documents requested by the plaintiff. There followed a series of motions and court orders*fn3 directing the defendants to provide discovery and which, when discovery was not forthcoming, caused the court to enter a sanction order. The sanction chosen by the court was the entry of a default judgment against defendants on the issue of liability. See: Pa.R.C.P. 4019(c)(3).

On March 22, 1983, seventy-six (76) days after entry of the default judgment, appellants*fn4 filed a petition to open the judgment. Their petition contained averments that in the interim defendants had provided plaintiff with the names and addresses of more than 900 patients who had been treated in the offices formerly occupied by plaintiff. An answer was filed denying, inter alia, that defendants had fully complied with the court's directions. On August 11, 1983, the trial court denied defendants' petition to open judgment. Defendants then appealed from the order refusing to open the judgment. Their appeal, however, does not seek review of the order denying the petition to open. Their appeal, rather, is directed to the sanction order entering default judgment. Thus, they state the issues on appeal as follows:

[ 342 Pa. Super. Page 580]

I. Whether the lower court's entry of a default judgment as a sanction in discovery was invalid, where the underlying request for discovery was invalid?

II. Whether, even if the underlying request for discovery was not invalid, the lower court's entry of a default judgment as a sanction against the Appellants either originally was or later became an abuse of discretion?

III. Whether the lower court's entry of a default judgment against Drs. Dinello and Sabocheck was improper, where the underlying request for discovery ...


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