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July 29, 1997


Appeal from ORDER ENTERED September 27, 1996, in the Court of Common Pleas of BUCKS County, Civil Division, No. 93-008136-16-2. Before KANE, J.

Before: McEWEN, P.j. Popovich and Olszewski, JJ. Popovich, J., Concurs in the Result.

The opinion of the court was delivered by: Olszewski

Filed July 29, 1997


On November 19, 1992, the Croydon Plastics Company was consumed by fire. After the three-alarm blaze was extinguished, the charred remains of the plant were unsalvageable and the estimated loss to Croydon was $4,000,000.00.

After paying Croydon approximately $1,500,000.00 in damages, Croydon's insurer initiated the instant action by filing a writ of summons in the Court of Common Pleas of Bucks County. Speculating that the fire was caused by a faulty furnace, Croydon named the furnace distributor, The Trane Company, and the furnace installer, Lower Bucks Cooling & Heating, as defendants. *fn1

On January 31, 1994, after being ruled to do so pursuant to Trane's praecipe, Croydon filed a complaint. Thereafter, Trane filed preliminary objections wherein it claimed that Croydon failed to plead its cause with sufficient specificity and that Trane was, therefore, unable to defend the action. The court granted Trane's objections and, on February 24, 1994, Croydon filed an amended complaint. Therein, Croydon alleged that defendants had failed to properly design, manufacture and/or install the furnace and, additionally, that defendants failed to warn users about the furnace's dangerous propensities. Relief was sought based upon breaches of contract and warranty, negligence and strict liability. Trane again filed preliminary objections asserting that the complaint lacked the necessary specificity to permit it to file a responsive pleading. These second objections were, however, denied. Trane and Lower Bucks then filed cross-claims against each other.

Shortly thereafter, on April 1, 1994, Trane served its first set of interrogatories upon Croydon, thus initiating the long, circuitous and tortuous discovery battle that culminated over two years later in a court order barring Croydon from introducing any expert testimony at trial against Trane as a sanction for its continual violations of court orders compelling discovery.

Although Croydon answered Trane's initial set of interrogatories, the responses were deemed legally inadequate and, upon motion by Trane, Croydon was ordered to provide more complete answers. Rather than provide full and complete answers to Trane's interrogatories, Croydon sought a hearing on the merits of Trane's motion. Prior to the hearing, which was held on February 24, 1995, the trial court entered two additional orders which required Croydon to comply with Trane's various discovery requests.

At the February 24, 1995, hearing on the merits of Trane's request for more complete answers to its interrogatories and various other discovery requests, Croydon asserted that it was unable to answer Trane's interrogatories because Croydon's experts had not yet completed their investigations and reports. N.T. 2/24/95 at 4; R.R. at 142a. In response, the court made the following statement and order:

Let me see if I can make this as clear as possible. You filed a lawsuit in 1993. You obviously suffered an injury; your place burned down, so I'm not making in any way light of your lawsuit. But you filed the lawsuit a couple years ago. The defendants are entitled to know what it is you claim they did wrong, and we're going to get to that point real quick now. If this was thirty days after the lawsuit was filed we wouldn't be here. But we're two years after the lawsuit was filed. I expect experts to be hired and reports to be filed quickly, and I don't mean quickly as in six months, I mean quickly as in sixty days. Because, otherwise, you're going to be staring down the barrel of my order saying file the answers or you're going to be precluded.

N.T. 2/24/95 at 9; R.R. at 147a (emphasis added).

Following this unambiguous dictate that Croydon respond to Trane's discovery requests and furnish an expert report within sixty days, a full year elapsed during which Croydon failed to comply with the court's Order. Finally, in February of 1996, Trane filed a motion with the court requesting that the court sanction Croydon for its continuous and habitual discovery violations.

On April 25, 1996, fourteen months after the court ordered Croydon to file an expert report within sixty days, a hearing was held relative to Trane's motion for sanctions. At this time, Croydon admitted that it had not furnished Trane with expert reports and claimed that the failure to do so was caused, in part, by vicious infighting among the various privately retained and insurance counsel for Croydon. The court, however, reminded counsel that the court orders had been directed to, and violated by, Croydon and not its numerous attorneys. This argument was, therefore, properly rejected.

At this point, Croydon's counsel gave conflicting explanations as to why Croydon never produced an expert report. Robert A. Stutman, Esquire, the attorney retained on Croydon's behalf by its insurer, argued that Croydon, in fact, was in possession of expert reports that had been prepared some time ago but had never been turned over to Trane. N.T. 4/25/96 at 6-7; R.R. at 309-310a. Further, Attorney Stutman stated that he was at a loss to explain why the prepared reports were not given to Trane. Id.

Conversely, Croydon's privately retained counsel, Garland Cherry, Esq., testified that it was "impossible for the plaintiff to produce an expert report against Trane until the plaintiff has more information about the gas furnace which Trane will not give to the plaintiff." N.T. 4/25/96 at 8; R.R. at 311a. The court then questioned Attorney Cherry as to why, during the fourteen months between the court order and the sanction hearing, Croydon had not taken any affirmative steps to compel Trane to produce the ...

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