Children's Hospital v. DeSillers

4 Pa. D. & C.4th 61, 1989 Pa. Dist. & Cnty. Dec. LEXIS 131
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedJuly 24, 1989
Docketno. G.D. 87-19566
StatusPublished

This text of 4 Pa. D. & C.4th 61 (Children's Hospital v. DeSillers) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Children's Hospital v. DeSillers, 4 Pa. D. & C.4th 61, 1989 Pa. Dist. & Cnty. Dec. LEXIS 131 (Pa. Super. Ct. 1989).

Opinion

WETTICK, A.J.,

Children’s Hospital instituted an action to recover the balance allegedly due for health care goods and services that it provided to defendant’s son during his hospitalization. Defendant, individually and as trustee ad litem on behalf of all persons entitled to share in damages for the wrongful death of her son, filed a counterclaim in which she alleged that her son’s death and his suffering for several months prior to his death were a result of medical malpractice.

In accordance with the rules of civil procedure governing discovery, Children’s Hospital noticed defendant’s deposition for November 28, 1988. At defendant’s request, Childem’s Hospital agreed to reschedule the deposition to a later date. After several additional postponements, defendant’s deposition was eventually scheduled for May 3, 1989 at 1:00 p.m. at the offices of counsel for Children’s Hospital. At approximately 1:00 p.m. on May 3, 1989, defendant’s Pittsburgh counsel informed counsel for Children’s Hospital that he had just received a letter from defendant’s Florida counsel indicating that the May 3, 1989 deposition date was inconvenient for Florida counsel. Children’s Hospital filed a motion for sanctions. On May 12, 1989, this court ordered defendant to appear for a deposition on June 15, 1989 at the offices of plaintiffs counsel. On the morning of June 15, 1989, defendant’s Florida counsel informed counsel for Children’s Hospital that defendant would not be appearing for her deposition because of illness.

Children’s Hospital filed a second motion for [63]*63sanctions. On June 23, 1989, this court entered an order dismissing defendant’s counterclaim with prejudice for failure to comply with discovery. The order further provided that this court would reconsider this order of court if defendant appeared for a deposition within 20 days.

Defendant appeared for her deposition within 20 days. Pursuant to the June 23, 1989 order, defendant then filed a motion to reinstate the counterclaim. This motion is opposed by Children’s Hospital on two grounds. Children’s Hospital contends that defendant’s deposition testimony did-not support the reasons that her counsel had given for her failures to appear for her deposition in the past. Children’s Hospital also contends that defendant had frequent and convenient memory lapses and repeatedly failed to provide full and complete answers.

Both Pennsylvania appellaté court case law and Pa.R.C.P. 4019(c)(2) permit a court to bar a party from pursuing a claim as a discovery sanction. See Pride Contracting Inc. v. Biehn Construction Inc., 381 Pa. Super. 155, 553 A.2d 82 (1989); Vorhauer v. Miller, 311 Pa. Super. 395, 457 A.2d 944 (1983). However our appellate courts have repeatedly emphasized that less drastic .sanctions should normally be utilized and that the sanction of the dismissal of a claim should be imposed only as a last resort after a party has been given every reasonable opportunity to comply with discovery compelled by the discovery rules and orders of court. Dunn v. Maislin Transport Ltd., 310 Pa. Super. 321, 456 A.2d 632 (1983); Walker v. Pugliese, 317 Pa. Super. 595, 464 A.2d 482 (1983).

Case law is equally clear that the court may not impose a sanction that is overly broad. The appellate courts continue to apply the standard enunciated in [64]*64Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979). In that case the Superior Court considered the validity of a local rule of court which authorized the prothonotary to enter á judgment of non pros in every case in which a party failed to comply with a court order requiring answers to interrogatories to be filed within a specified time. The Superior Court held that the imposition of the most severe allowable sanction in each case in which there is non-compliance with any court order compelling discovery is inconsistent with the sanction provisions of the discovery rules because it is the responsibility of a court to impose a sanction that is appropriate for the particular violation.

“Pa.R.C.P. no. 4019 envisions a procedure by which the court, when confronted with a failure or refusal to answer interrogatories, will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to select a punishment which ‘fits the crime.’ If a written interrogatory asks for information which, although relevant, is not determinative of the entire controversy, a default judgment, which in effect is an adjudication of the merits, would seldom, if ever, be appropriate. Under such circumstances, it would be more appropriate to treat the default as an admission or to disallow proof at trial of such undisclosed information. The need to ‘fit the punishment to the crime’ compels the exercise of judicial discretion. The court is required to strike a balance between the procedural need to move the case to a prompt disposition,and the substantive rights of the parties.” Id. at 252, 407 A.2d at 1341.

When we apply these principles to the case before this court, we conclude that defendant’s request to reinstate her counterclaim should be granted.

[65]*65We .find no merit to the contention of Children’s Hospital that we should deny defendant’s request to reinstate her counterclaim because she did not provide reasonable explanations for her failures to appear at the prior depositions. Even assuming that the prior failures were willful, we should not dismiss the action if she has now cured her willful failures to comply with discovery. In accordance with the mandates of Gonzales u. Procaccio Bros. Trucking Co., we must select a punishment which fits the crime. If her failures were willful, the appropriate punishment is the award of counsel fees and other costs. Children’s Hospital has experienced no prejudice other than the incurrence of these counsel fees and costs because of defendant’s prior failures to comply with discovery. Consequently, Children’s Hospital is entitled to no greater sanctions.

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Related

Dunn v. Maislin Transport Ltd.
456 A.2d 632 (Superior Court of Pennsylvania, 1983)
Gonzales v. Procaccio Bros. Trucking Co.
407 A.2d 1338 (Superior Court of Pennsylvania, 1979)
Vorhauer v. Miller
457 A.2d 944 (Superior Court of Pennsylvania, 1983)
Walker v. Pugliese
464 A.2d 482 (Supreme Court of Pennsylvania, 1983)
Pride Contracting, Inc. v. Biehn Construction, Inc.
553 A.2d 82 (Supreme Court of Pennsylvania, 1989)

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Bluebook (online)
4 Pa. D. & C.4th 61, 1989 Pa. Dist. & Cnty. Dec. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childrens-hospital-v-desillers-pactcomplallegh-1989.