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DONALD LUCKENBAUGH AND NANCY LUCKENBAUGH v. JOHN SHEARER (03/23/87)

filed: March 23, 1987.

DONALD LUCKENBAUGH AND NANCY LUCKENBAUGH, HIS WIFE
v.
JOHN SHEARER, JR., APPELLANT



Appeal from the Order entered August 8, 1985 in the Court of Common Pleas of York County, Civil, No. 83-S-1500.

COUNSEL

David Mills, York, for appellant.

Robert C. Spitzer, Harrisburg, for appellees.

Cirillo, President Judge, and Rowley, Olszewski, Del Sole, Montemuro, Beck, Tamilia, Kelly and Popovich, JJ. Cirillo, President Judge, files a dissenting opinion in which Tamilia, J., joins. Tamilia, J., files a dissenting statement.

Author: Del Sole

[ 362 Pa. Super. Page 11]

On April 28, 1983, the plaintiffs commenced a lawsuit against the defendant, John Shearer, Jr. and one Mary Straley, by filing praecipe for writ of summons. The summons was properly served and on July 31, 1984, the plaintiffs' complaint was filed seeking damages from the defendants averring that the defendants either jointly or severally, by applying chemicals to land which they either owned or farmed, had damaged the plaintiffs' well and drinking water supply.

Subsequently, the defendant, Mary Straley, filed preliminary objections in the nature of a demurrer, and the trial court by order of November 16, 1984 sustained the preliminary objections and granted the demurrer. No appeal was filed from that order and Mary Straley is no longer a party in this litigation.

[ 362 Pa. Super. Page 12]

On October 18, 1984, the defendant propounded interrogatories to the plaintiffs which were not answered. Subsequently, on February 19, 1985, the defendant filed a petition to compel answers to interrogatories. The petition recited repeated requests, both oral and written, to plaintiffs' counsel for the answers, all of the requests having failed to produce the required responses. On February 19, 1985, the trial court entered an order directing that answers be filed within ten days or sanctions would be imposed.

On March 20, 1985, the defendant moved for sanctions and the trial court entered an order dismissing the plaintiffs' case with prejudice for failure to answer the interrogatories.

On April 1, 1985, the plaintiffs filed a petition to strike the dismissal, open judgment and motioned for rule to show cause. On that same date, the trial court issued a rule on the defendant to show cause why its order of dismissal should not be stricken and judgment opened. Subsequently, the defendant filed an answer to the plaintiffs' motion. Both plaintiffs' and defense counsel filed affidavits in support of their respective positions and on August 8, 1985, the trial court entered an order striking the dismissal and opening the judgment that it previously entered as a sanction for the plaintiffs' failure to timely file answers to interrogatories. From this August 8, 1985 judgment, the defendant appeals.

Initially, it should be noted that Pennsylvania Rule of Appellate Procedure 311(a) establishes the right of the defendant to appeal from the order entered. Rule 311(a) provides that "an appeal may be taken as of right from: (1) [a]n order opening, vacating or striking off a judgment . . . ." The trial court's order, which purported to "open" and "strike" its judgment was appealable. See Simpson v. Allstate Insurance Co., 350 Pa. Super. ...


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