Appeal from Order of the Court of Common Pleas, Civil Division, of Lawrence County, No. 77 of 1979, C.A.
John A. Robb, Jr., Pittsburgh, for Allstate Ins., appellant, (at 471) and appellee (at 470).
Charles W. Garbett, Ellwood City, for Rosemary Simpson, appellant, (at 470) and appellee (at 471).
Spaeth, President Judge, and Brosky, Rowley, Wieand, McEwen, Cirillo, Olszewski, Montemuro and Tamilia, JJ. Spaeth, President Judge, joined in this opinion before the expiration of his term on the court. Olszewski, J., filed a concurring and dissenting statement.
[ 350 Pa. Super. Page 241]
Rosemary Simpson commenced an action in assumpsit against Allstate Insurance Company (Allstate) to recover a fire loss of $35,468 for which Allstate allegedly had agreed to indemnify her pursuant to a policy of fire insurance. After Allstate had refused to respond to Simpson's request for the production of certain statements of witnesses and other documents, Simpson obtained a court order, dated April 14, 1982, directing Allstate to produce the requested documents for examination within thirty days. Appellant's counsel again failed to produce the required documents. Simpson's threats to obtain a sanction order from the court also failed to produce action. Finally, by letter dated October 6, 1982, Simpson's counsel notified Allstate's attorney that a motion for the imposition of a sanction in the nature of a judgment on the claim would be presented to the trial court on October 11, 1982 unless Allstate complied with the court's discovery order before that date. Allstate failed to comply, and its counsel failed to appear in opposition when the motion for sanctions was presented to the court. The motion, therefore, was granted. The trial court, pursuant to Pa.R.C.P. 4019(c)(3), directed the prothonotary to enter judgment against Allstate by order dated October 13, 1982.
[ 350 Pa. Super. Page 242]
The judgment was entered the following day, October 14, 1982.
Five days later, the discovery material having been delivered in the interim, Allstate filed a petition to open the judgment. Simpson filed an answer, and the petition to open was argued before the court. Thereafter, more than five months after the judgment had been entered, the trial court entered the following order:
AND NOW, this 22nd day of March, 1983, upon consideration of the motion to open default judgment by defendant, Allstate Insurance Co., and after hearing argument thereon, in accordance with Pa.R.C.P., No. 4019, the Court finds that defendant has willfully violated the Pennsylvania Rules of Civil Procedure for failure to produce discoverable materials, which justifies the entry of this ORDER, and therefore, ORDERS:
(1) that the petition to open default judgment is granted;
(2) that defense counsel, as a disobedient party, is hereby held in contempt of court pursuant to the Judiciary Act of 1976, July 9, P.L. 586, No. 142, § 2 (42 Pa.C.S.A. § 4131 et. seq.) and fined in the amount of $3,000 for failing to obey the Court's Order dated April 14, 1982 for a period of approximately six months;
(3) that defense counsel shall be responsible for all reasonable attorney fees incurred by plaintiff's counsel in his attempt to obtain discovery including the motion for sanctions and the motion to Open Default Judgment filed pursuant to the Pa.R.C.P. Rule No. 4010(g)(1); that amount is due upon ...