Mountain View Condominium Owners' Ass'n v. Mountain View Associates

9 Pa. D. & C.4th 81, 1991 Pa. Dist. & Cnty. Dec. LEXIS 343
CourtPennsylvania Court of Common Pleas, Chester County
DecidedJanuary 8, 1991
Docketno. 88-01863
StatusPublished

This text of 9 Pa. D. & C.4th 81 (Mountain View Condominium Owners' Ass'n v. Mountain View Associates) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mountain View Condominium Owners' Ass'n v. Mountain View Associates, 9 Pa. D. & C.4th 81, 1991 Pa. Dist. & Cnty. Dec. LEXIS 343 (Pa. Super. Ct. 1991).

Opinion

SHENKIN, J.,

In this case we are faced with the all too common situation in which one party serves interrogatories (or initiates some other facially appropriate discovery request) and the other party totally ignores the interrogatories until the party serving them has filed a motion for sanctions. Then the recipient serves answers and/or attempts to lodge objections, actions which should have been taken without requiring the other party to have gone to the time, trouble and expense of filing the additional motion.

In this case, interrogatories and a request for production of documents were served upon counsel for plaintiff on October 18, 1990. There was no response, even though counsel for plaintiff had sent a letter to counsel for defendants concerning other discovery matters. On November 20, 1990, counsel for defendants wrote to counsel for plaintiff requesting responses and advising that if counsel for defen[82]*82dants did not “hear from” counsel for plaintiff, a motion to compel would be filed. Still there was no response.

This motion for sanctions was then filed on December 4, 1990, and only then did counsel for plaintiff respond by filing, on December 19, 1990, an answer to the motion to which was appended partial answers and responses together with objections to certain of the requested discovery. In its answer to the motion plaintiff states that “defendants’ counsel knew or should have known that plaintiff’s responses to defendants’ discovery requests (other than objections thereto) would require” more than 30 days to answer, (emphasis supplied) Nowhere does counsel for plaintiff state that he contacted counsel for defendants and advised him of this time requirement or that he requested additional time to respond or that he filed those objections which by his own answer did not require more time or even that he advised counsel for defendants of his intention to object to some of the requested discovery. In spite of the fact that counsel for plaintiff was in contact with counsel for defendants with regard to discovery which he — counsel for plaintiff — wished to pursue, he made no effort to acknowledge the defendants’ outstanding discovery requests. Instead, he followed the unfortunate and unacceptable practice of ignoring that discovery until defendants were forced to file the motion here under consideration. In defense, counsel for plaintiff argues that the discovery could not reasonably be expected to have been answered within 30 days.

We emphasize that it was not the failure to file answers and produce documents which is so objectionable, since a good-faith effort to respond to discovery can indeed take more time than allowed by the Rules of Civil Procedure as of course, but [83]*83rather the failure to have acknowledged in any way even the existence of the outstanding discovery. There is no indication in this record of so much as a phone call, let alone a letter, acknowledging the receipt of the discovery, requesting additional time to consider the discovery and respond or object thereto, or indicating an intention to answer and respond in part and to object in part. And, we repeat, in the answer to this motion, counsel for plaintiff acknowledges that there was no reason whatsoever why the objections were not filed within 30 days. Under these circumstances, we deem any objections to the requested discovery to have been waived.

Pa.R.C.P. 4019(a)(2) provides that failure to serve answers, sufficient answers or objections to written interrogatories or to respond to a request for production of documents “may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.” Accordingly, we hold that an objection to interrogatories or other discovery or an application for protective order must be filed before the party seeking discovery has filed a motion for sanctions, or other motion seeking to enforce compliance with the discovery request, or else such objection or the grounds upon which the protective order is sought shall be waived. See Nissley v. Pennsylvania Railroad Company, 435 Pa. 503, 510, 259 A.2d 451, 455 (1969); J.J. White Inc. v. Buckley and Company Inc., 65 D.&C. 2d 794 (1974); Bonk v. Block, 12 D.&C. 3d 749 (1980).

We are not here faced with the situation in which an objection was filed or protective order sought more than 30 days after the discovery request was served but before the party seeking the discovery [84]*84had taken any action to compel compliance with the discovery request. It may be that the objection or request for protective order will not be required — upon penalty of waiver — to be filed within the same time period as is allotted for the response to the discovery request, but we are not here faced with that precise issue. Here we have the situation in which no objection was lodged until after the party promulgating the interrogatories had been forced to file a motion for sanctions in order to get any response at all from opposing counsel, and our decision is limited to that situation.

We recognize that in Hall v. Sears Roebuck & Company, 14 D.&C. 3d 231 (1980) the court held that objections to interrogatories may be considered so long as filed prior to disposition of a motion to compel answers. In the Hall case, supra, the defendant served interrogatories; seven months later the defendant filed a motion for sanctions seeking full and complete answers to the interrogatories; after the motion had been filed but prior to the hearing on the motion, plaintiffs filed general objections to the interrogatories. The court noted that although Pa.R.C.P. 4006(2) provides that objections to interrogatories shall be filed within 30 days, the rule does not expressly state that any objections not so filed are waived. The court also noted that although Pa.R.C.P. 4019(a)(2) provides that failure to answer interrogatories cannot be excused on the ground that the discovery sought is objectionable if a party has not filed objections or applied for a protective order, it does not specifically state when such objections must be filed. The court then did consider the objections and sustained them in part, ruling that such objections could be considered so long as they were filed at any time prior to the hearing on the motion for sanctions.

[85]*85In the Hall case, the court was concerned that it could find no basis for disregarding the protections of Pa.R.C.P. 4011 and ordering discovery of matters which it considered to be outside the scope of the discovery rules. We find Pa.R.C.P. 4019(a)(2) to be ample basis. Pa.R.C.P. 4011 is not self-executing; a party wishing the benefit of the protections of that rule must seek to invoke them in a timely fashion. And we do not find that the Rules of Civil Procedure set forth a list of such matters as may be inquired into; rather the general philosophy is that everything is presumed to be discoverable, subject to specific limitations set forth in various rules. As we perceive the situation, nothing is per se outside the scope of the rules. Much evidence is given in court which would be inadmissible if objected to but which comes in and is fully probative because no objection is made. Just so, we find that any interrogatory is required to be answered unless a timely objection thereto is lodged or protective order sought.

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Related

Nissley v. Pennsylvania Railroad
259 A.2d 451 (Supreme Court of Pennsylvania, 1969)

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Bluebook (online)
9 Pa. D. & C.4th 81, 1991 Pa. Dist. & Cnty. Dec. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mountain-view-condominium-owners-assn-v-mountain-view-associates-pactcomplcheste-1991.