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PRIDE CONTRACTING v. BIEHN CONSTRUCTION (01/06/89)

filed: January 6, 1989.

PRIDE CONTRACTING, INC., APPELLANT,
v.
BIEHN CONSTRUCTION, INC., APPELLEE



Appeal from Order of the Court of Common Pleas, Civil Division, of Chester County, No. 85-05691.

COUNSEL

Ronald F. Brien, Spring City, for appellant.

Gary A. Rochestie, Philadelphia, for appellee.

Rowley, Wieand and Beck, JJ.

Author: Wieand

[ 381 Pa. Super. Page 157]

Pride Contracting, Inc. (Pride) has appealed from an order which dismissed with prejudice its third amended complaint against Biehn Construction, Inc. (Biehn) for failure to comply with a court order directing discovery. Pride contends that the trial court abused its discretion by imposing an unduly harsh sanction without a hearing. We disagree and affirm the order of the trial court.

Pride's complaint against Biehn contained averments that Biehn had failed to pay for work done by Pride and had dealt with Pride in bad faith. Biehn filed preliminary objections in the nature of a demurrer to the complaint, and these were sustained in part. Preliminary objections were also sustained to amended and second amended complaints. Finally, a third amended complaint was upheld against another set of preliminary objections, and Pride's action was allowed to proceed. Biehn thereafter served on Pride a set of interrogatories and requested the production of documents. Pride did not respond. Correspondence by Biehn's counsel regarding its requests was ignored. Finally, Biehn moved for sanctions, and the trial court ordered Pride to comply with Biehn's discovery requests within thirty (30) days. In response, Pride delivered to Biehn a mass of documents which were unlabeled and represented an incomplete response. The answers to interrogatories were illegibly written, inadequate, and evasive. Biehn filed a second request for sanctions, and following a conference involving the court and counsel, an order was entered directing Pride to comply with all discovery requests within

[ 381 Pa. Super. Page 158]

    forty-five (45) days. In response, Pride delivered another stack of documents which, Biehn's attorney contended, were unlabeled and irrelevant. No further answers were filed to the defendant-appellee's interrogatories. Thereafter, a third motion for sanctions was filed and produced an order which dismissed the complaint with prejudice and directed the plaintiff-appellant to pay counsel fees incurred by Biehn in connection with the several motions for sanctions. On appeal, a panel of the Superior Court remanded to the trial court for a statement of reasons for its order. Contrary to the Court's operating procedures, the panel did not retain jurisdiction and declined to consider the appeal further. Therefore, a second appeal, following the filing of a memorandum opinion by the trial court, was filed and is now before a different panel for decision.

The imposition of sanctions for failing to comply with a court's discovery order is authorized by Pa.R.C.P. 4019(a). The sanctions permitted are enumerated in Rule 4019(c) as follows:

(c) The court, when acting under subdivision (a) of this rule, may make

(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from ...


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