Elkman v. Elkman

173 A.2d 682, 196 Pa. Super. 133, 1961 Pa. Super. LEXIS 446

• Court: Superior Court of Pennsylvania
• Decided: September 12, 1961
• Docket: Appeal, 210
• Status: Published

Opinions

Opinion by

Ervin, J.,

This is an appeal from the order of the court below dismissing appellant-wife’s petition for an increase in a support order for herself and two children.

The court below denied a motion for an order to allow inspection of the books of account of Elkman Construction Co. and of Sidney Elkman, Inc., two corporations solely owned by the husband.

Pa. B.C.P. No. 4009(1) provides: “Subject to the limitations provided by Buie 4007 (a) and Buie 4011, the court, on the motion of a party may (1) order a party to produce and permit the inspection, including the copying and photographing, by or on behalf of the petitioner of designated tangible things, including documents, papers, books, accounts, letters, photographs and objects, which are in his possession, custody or control; . . .”

Pa. R.C.P. No. 4007(a) limits the scope of discovery generally to matters which are “relevant,” which “will substantially aid in . . . the trial. . . .” and the like.

Rule 4011 authorizes the court to refuse inspection where it is sought in bad faith or causes unreasonable annoyance, embarrassment, expense or oppression.

We do not believe that a case of this kind can be properly tried without the books of account. Evidently the court itself had difficulty in ascertaining the true facts. In his opinion Judge Boyle said: “We have endeavored to properly assess the value of the testimony of the plaintiff’s and defendant’s accountants but were not satisfied with their accuracy. There was quite some controversy during the hearings about the net income and the net worth of the defendant for the year 1959 (the issue being the net income and net worth of defendant as of December 31, 1959). . . .

“After considering the testimony of both accountants as to the net income and net worth of the defendant, we have concluded that the estimate given by the defendant himself more nearly approaches his financial condition than that of either of the accountants.”

The refusal to allow the wife’s accountant access to the records, in our opinion, prevented the court from learning the true facts. One might as well ask an umpire to call strikes and balls with opaque glasses. Certainly the inspection of the books would have been of “substantial aid in the trial of the case” and we do not believe that the motion was made in bad faith. Counsel for the wife offered to protect the husband from any undue embarrassment and we believe that he would have fully carried out his offer.

Great advances have been made in modern times to prevent a trial from being just a game of hide-and-seek. Rules have been promulgated to make each side reveal relevant evidence to the other. All of these rules are designed to make a trial a procedure for ascertaining the true facts. It is only after these facts have been ascertained that true justice can be dispensed. In a support order case the income and net worth of the defendant are most essential.

Denial of the wife’s motion for inspection of the records was, in our judgment, such fundamental error as to make unnecesary any further perusal of this subject. We might point out, however, that during the trial counsel for the wife again sought inspection of the books in the following language: “. . . this is the kind of a case which requires imperatively that your Honor grant the request that we made long before this hearing that these books be made available.”

The order denying plaintiff’s motion for inspection of the records is reversed and the record is remanded to the court below for proceedings not inconsistent with this opinion.