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filed: June 6, 1988.


Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 1805 Dec Term 1985


Lori A. Kradzinski, Philadelphia, for appellant.

John W. Craynock, Philadelphia, for appellee.

Cavanaugh, McEwen and Tamilia, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Tamilia

[ 374 Pa. Super. Page 406]

This appeal concerns a trial court order imposing sanctions against appellant Atlantic Richfield Company ("ARCO"). The action was commenced on December 10, 1985 by appellee filing a complaint in assumpsit averring ARCO breached its contract with appellee by charging him $18,203 in alleged royalty deficiencies without justification pursuant to an am/pm Mini Market agreement between the parties. In its answer, filed February 13, 1986, ARCO denied any overcharge and averred it was entitled to the money for deficiencies during the auditing period. Arco also raised a number of affirmative defenses in new matter.

On September 4, 1986, appellee noticed the deposition of Arthur Goldstein, a "managing agent" of ARCO.*fn1 In response

[ 374 Pa. Super. Page 407]

    to this notice, ARCO filed a motion for protective Order requesting the deposition of Goldstein, who worked in a California office of ARCO, be taken by telephone, written interrogatories, or by oral deposition in either California or Pennsylvania at appellee's expense. After argument, by a November 3, 1986 Order, the trial court effectively denied ARCO's motion by ordering the deposition of Goldstein in Philadelphia on January 12, 1987, the day before the scheduled arbitration in the case, and by allowing appellee to file interrogatories within twenty days and ARCO to file answers within twenty days thereafter.*fn2

On or about November 25, 1986, appellee forwarded interrogatories to counsel for ARCO. Then on January 7, 1987, appellee filed a motion for sanctions averring that ARCO had failed to respond to his interrogatories sent approximately forty-three days prior to the sanctions motion and also averred ARCO had informed appellee it would not produce Goldstein for deposition on January 12, 1987, as ordered by the court. In response to appellee's motion for sanctions, the trial court entered a January 9, 1987 Order precluding ARCO from calling any witnesses at the arbitration or trial.*fn3 The arbitration board found against ARCO in

[ 374 Pa. Super. Page 408]

    the amount of $20,418.78 on January 13, 1987, which award was filed and docketed on January 15, 1987, and appealed by ARCO on February 13, 1987 to the Court of Common Pleas of Philadelphia County. The trial court's January 9, 1987 sanction Order was not entered on the trial court's docket until January 27, 1987 and ARCO brought this timely appeal of that Order on February 26, 1987.*fn4

As a preliminary matter, we conclude that the sanction Order of January 9, 1987 is a final Order under Pa.R.A.P. 341 and that our jurisdiction lies under 42 Pa.C.S. ยง 742. "An order will also be treated as final if the practical consequence is, in effect, to put an appellant out of court, or if it precludes an appellant from presenting the merits of the claim to the lower court." Grossman v. Commissioner of Police, 318 Pa. Super. 584, 589, 465 A.2d 1007, 1010 (1983) (citing Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978)); Foulke v. Lavelle, 308 Pa. Super. 131, 454 A.2d 56 (1982). By preventing ARCO from presenting witnesses at arbitration or at trial the sanction Order effectively precluded ARCO from presenting the merits of its claims to the $18,203 below. "An order does not put a party 'out of court' unless it precludes proof of facts at trial, which if determined in favor of the pleader, would provide him with a complete defense to the action." Zarnecki v. Shepegi, 367 Pa. Super. 230, 232, 532 A.2d 873, 874 (1987) (en banc) (citing Posternack v. American Casualty Company of Reading, 421 Pa. 21, 23-4, 218 A.2d 350 (1966)). The sanction Order puts ARCO "out of court" for all practical purposes because it precludes proof at trial of what might

[ 374 Pa. Super. Page 409]

    be a complete defense to appellee's claim.*fn5

ARCO raises six issues, which are interrelated, questioning the propriety, severity, and appropriateness of the sanction Order. ARCO claims no sanctions could be imposed because the November 3, 1986 Order disposing of ARCO's motion for a protective Order and directing ARCO to produce Goldstein for deposition was entered in contravention of the law because the non-party Goldstein was never served with a subpoena to appear at the deposition, which, ARCO argues, Pa.R.C.P. 4007.1 requires. ARCO also contends the sanctions imposed were too extreme and ...

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