Appeal from the Order of the Court of Common Pleas Montgomery County, Civil, at Nos 77-1727, 75-83 82.
Allen L. Feingold, Philadelphia, for appellant.
William H. Pugh, IV, Norristown, for appellees.
Montemuro, Hoffman and Cercone, JJ.
[ 355 Pa. Super. Page 477]
This case presents the issue whether the trial court's order imposing a severe sanction against appellant for his failure to comply with certain discovery requests was proper under Pa.R.C.P. 4019. We find that it was not.
The somewhat lengthy procedural history of this case is as follows: On June 2, 1975, appellant filed a complaint against appellees, both as individuals and trading as the Cricket Bar, alleging negligence and/or assault and battery
[ 355 Pa. Super. Page 478]
in connection with an altercation which had occurred at the bar. Appellant claimed that on the night of February 7, 1975, one of appellees' employees had slashed him across the neck with a broken beer bottle, causing him serious injuries.
A default judgment was entered against appellees on August 10, 1975, but the judgment was subsequently opened, and on January 24, 1977, appellant filed a new complaint. The two cases were consolidated by stipulation of the parties and discovery proceedings subsequently ensued. On July 16, 1980, appellees requested, pursuant to Pa.R.C.P. 4009(a),*fn1 that appellant produce for inspection and photocopying all medical records, hospital records, medical reports, and bills relating to appellant's claimed injuries. By letter of August 5, 1980, appellant's counsel, Allen L. Feingold, advised appellees that he would be on vacation on the suggested day and thus would not be able to comply with the request. Appellees accordingly rescheduled the production for October 7, 1980. In a letter dated October 1, 1980, appellant's counsel informed appellees that he would not comply with the discovery request because it was unduly broad, not framed with sufficient particularity, beyond the scope of the discovery rules, and not reasonably calculated to lead to the discovery of admissible evidence. Based on this refusal, appellees filed a motion for sanctions in which they asked the court to enter an order directing appellant to produce the requested items and, also, to award them attorney's fees in connection with preparation of the motion. After considering appellees' motion and appellant's response thereto, the trial court entered an order dated July
[ 355 Pa. Super. Page 4792]
, 1981, in which it imposed the following sanction: Appellant was precluded from introducing at trial any testimony whatsoever concerning his mental or physical condition. Appellant filed a motion for reconsideration, which was denied after oral argument. He also filed an appeal to this court, which was dismissed on the basis that the July 2, 1981, order was interlocutory. The case subsequently came to trial before the Honorable Samuel W. Salus, II, sitting with a jury. In presenting his case, appellant was permitted to adduce testimony regarding the altercation in the bar. However, as a result of the sanction, he was precluded from presenting any testimony regarding his physical or mental condition after the incident. Thus, while appellant was permitted to adduce testimony on liability, he was not allowed to present any testimony on damages. At the close of appellant's case, the trial court granted appellees' motion for compulsory non-suit because (1) appellant failed to establish any damages,*fn2 and (2) there were conflicts in the testimony which created doubt as to the merits of appellant's cause of action.*fn3
On April 29, 1983, appellant filed a motion to strike, set aside, and vacate the compulsory non-suit. The matter was held in abeyance, however, while appellant took an appeal to this court in which he challenged the trial court's denial of his motion, filed May 19, 1983, to proceed in forma pauperis. We reversed and ...