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PATRICIA PLEINS DEMARCO v. BOROUGH EAST MCKEESPORT (04/07/89)

decided: April 7, 1989.

PATRICIA PLEINS DEMARCO, ADMINISTRATRIX OF THE ESTATE OF GERALD A. PLEINS, JR., DECEASED
v.
BOROUGH OF EAST MCKEESPORT, BOROUGH OF WILMERDING, COUNTY OF ALLEGHENY AN 977D DEPARTMENT OF TRANSPORTATION ET AL. BOROUGH OF EAST MCKEESPORT, APPELLANT. PATRICIA PLEINS DEMARCO, ADMINISTRATRIX OF THE ESTATE OF GERALD A. PLEINS, JR., DECEASED V. BOROUGH OF EAST MCKEESPORT ET AL. COUNTY OF ALLEGHENY, APPELLANT



Appeals from the Order of the Court of Common Pleas of Allegheny County, in the case of Patricia Pleins DeMarco, Admrx. of the Estate of Gerald A. Pleins, Jr., Deceased v. Borough of East McKeesport, Borough of Wilmerding, County of Allegheny, and Commonwealth of Pennsylvania, Department of Transportation v. Ray E. Curtin, Executor of Estate of Myrtle M. Curtin, Deceased, Charles Taylor and Birdie Taylor and David A. Pepe and Linda Sue Pepe, No. GD85-6380.

COUNSEL

Charles H. Alpern, Kiger & Alpern, for appellant, Borough of East McKeesport.

Donald J. McCormick, Wayman, Irvin & McCauley, for appellant, County of Allegheny.

Gary M. Lang, Feldstein, Grinberg, Stein & McKee, for appellee.

Judges Barry and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 125 Pa. Commw. Page 14]

This matter arises from appeals*fn1 taken by the Borough of East McKeesport and Allegheny County*fn2 (Appellants) from the March 11, 1988 decision of the

[ 125 Pa. Commw. Page 15]

Allegheny County Court of Common Pleas striking judgments entered in favor of Appellants pursuant to the trial court's prior sanctions order. Issues presented for review are whether the trial court lacked jurisdiction to reform its May 9, 1986 order dismissing with prejudice the complaint of Patricia Pleins DeMarco (Appellee); and whether the trial court erred in finding that it lacked authority to sanction Appellee's failure to comply with the trial court's discovery order by dismissing Appellee's complaint as to all defendants upon motion of only one defendant. The trial court's decision is affirmed.

Appellee instituted the instant action against Appellants as well as the Borough of Wilmerding (Wilmerding) and the Pennsylvania Department of Transportation (DOT) as a result of fatal injuries allegedly sustained by Appellee's husband in an automobile accident.*fn3 Wilmerding subsequently served interrogatories and medical authorizations upon Appellee, whose failure to respond to either discovery request spawned Wilmerding's motion to compel discovery. On December 20, 1985, the trial court entered an order directing Appellee to file verified answers to Wilmerding's interrogatories and to execute and return medical authorizations submitted by Wilmerding within twenty days. Upon Appellee's further failure to comply with the trial court's December 20, 1985 discovery order, Wilmerding filed a motion for sanctions pursuant to Pa. R.C.P. No. 4019 which permits the trial court to order appropriate sanctions for failure of a party to answer interrogatories or otherwise obey a discovery order. The following order was entered pursuant to Wilmerding's motion:

[ 125 Pa. Commw. Page 16]

AND NOW, to-wit, this 9 [sic] day of May, 1986, upon consideration of the foregoing Motion for Sanctions, it is hereby ORDERED that Plaintiff's Complaint be dismissed with prejudice for failure to comply with the December 20, 1985 Order of Court compelling discovery.

The prothonotary thereafter entered judgments in favor of the Borough of East McKeesport on May 27, 1986 and County of Allegheny on September 25, 1986 pursuant to praecipes filed by Appellants. Judgments were also entered by the prothonotary in favor of Wilmerding on May 15, 1986 and DOT on May 28, 1986. Nothing of ...


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