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

SUPERIOR COURT OF PENNSYLVANIA


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 had not been addressed to either of them?

Statement of Questions Involved, Appellants' Brief, p. 4.

[ 342 Pa. Super. Page 581]

We have determined that the present appeal is improper and must be quashed. In Sims v. Feingold, 329 Pa. Super. 437, 478 A.2d 868 (1984), this Court held that an order entering a default judgment against a defendant for failure to comply with the trial court's several discovery orders was interlocutory and not appealable until after damages had been determined. See also: 16 Std.Pa.Prac.2d § 86:32 (1983).*fn5 This holding was consistent with prior decisions of the Court which had held uniformly that a summary judgment entered in favor of a plaintiff on the issue of liability was not appealable until damages had been determined and judgment entered in a monetary amount. See: Williams v. Erie Insurance Exchange, 290 Pa. Super. 279, 280, 434 A.2d 752, 753 (1981), quoting 2 Goodrich-Amram 2d § 1035(b):10 (1976); Inselberg v. Employers Mutual Companies, 291 Pa. Super. 406, 435 A.2d 1290 (1981); Newill Page 581} v. Piccolomini, 228 Pa. Super. 220, 323 A.2d 40 (1974). Because the present litigation has not been finally determined, an appeal will not lie. Appellants cannot obtain appellate review of the trial court's sanction order under the guise of a petition to open the default judgment entered on the issue of liability. The judgment entered solely on the issue of liability did not terminate the litigation. Therefore, it was interlocutory and unappealable; it will not be rendered final and appealable because the trial court subsequently denied a petition to open it.

The judgment on the issue of liability in this case was not entered by confession or by default. It was entered by the court pursuant to Pa.R.C.P. 4019(c)(3) as a sanction for appellants' refusal to provide discovery as directed by the court. A sanction order entering judgment pursuant to Pa.R.C.P. 4019(c)(3) is not subject to a petition to open. There is no authority in the rules for such a petition, and orderly practice suggests that there should be none. In this respect a default judgment entered pursuant to Pa.R.C.P. 4019(c)(3) is comparable to a judgment entered after hearing. A party may request a court to reconsider a sanction order entering judgment, of course, but neither reconsideration nor refusal to reconsider will transform an interlocutory order into one that is final and appealable.

Appellants argue that an order opening or refusing to open any judgment, even though interlocutory, has been made appealable as of right by Pa.R.App.P. 311(a)(1). This rule does not aid appellants in the instant case. As we have observed, the trial court's sanction order entering judgment on the issue of liability in this case was not properly the subject of a petition to open. Appellants' petition, therefore, must be treated as a petition to the trial court to reconsider its prior order. That this was appellants' intent is apparent from their argument on appeal that the sanction order entering judgment was invalid. The trial court's refusal to reconsider its prior order, however, is not appealable.

[ 342 Pa. Super. Page 582]

By quashing the present appeal we leave unreviewed the order of the trial court entering a default judgment on the issue of liability. See: Pa.R.App.P. 311(d)(1)(i). If the action proceeds to final judgment for monetary damages, an appeal from the final judgment will bring up for review the entire proceedings, including the sanction order entering judgment in favor of appellees on the issue of liability.*fn6 By quashing the present appeal and refusing to review the propriety of the trial court's sanction order at this time, we limit to one the number of appeals which can be spawned by the same action.

Appeal quashed.


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