Opinion
April 4, 1983.
Judgment — Default — Failure to make timely discovery response — Pa. R.C.P. No. 4009 and No. 4019.
1. The court does not abuse its discretion in entering a default judgment against the Commonwealth upon a motion for sanctions under Pa. R.C.P. No. 4019, when the Commonwealth did not produce documents properly sought under Pa. R.C.P. No. 4009, until twenty-one days after the thirty day production time limit had expired. [224]
Judge MacPHAIL filed a dissenting opinion which was substantially as follows:
1. To enter a default judgment against a party for a belated production of materials sought through discovery procedures is unnecessarily harsh, when the party seeking the information had actual knowledge of the matters sought to be produced and was not prejudiced by the delay. [225]
Submitted on briefs February 28, 1983, to Judges ROGERS, CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 251 C.D. 1981, from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Redek Auto Service, No. SA-1294 of 1980.
Certificate of appointment as official inspection station suspended by Department of Transportation. Certificate holder appealed to the Court of Common Pleas of Allegheny County. Default judgment entered against Commonwealth. PAPADAKOS, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Jerry McCoy, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant. Erik F. Lawson, Jr., with him Robert H. Somerton, Zupancic and Somerton, P.C., for appellee.
The Pennsylvania Department of Transportation, Bureau of Traffic Safety Operations, has appealed from an order of the Court of Common Pleas of Allegheny County, which entered a default judgment against DOT and in favor of Redek Auto Service in Redek's statutory appeal to the court from DOT's suspension of the privilege to inspect motor vehicles. Administrative Judge PAPADAKOS entered the default judgment pursuant to Redek's motion for sanctions against DOT for failure to respond to a request for document production under the discovery rules.
A default judgment is one of the proper sanctions which may be imposed against a party who, without satisfactory excuse, fails to make timely response to a mandatory discovery request. Spilove v. Cross Transportation, 223 Pa. Super. 143, 297 A.2d 155 (1972) (default judgment in trespass against insurance carrier for failure to answer interrogatories promptly because files had been mislaid).
Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 280 A.2d 570 (1978), declining to approve summary judgment for refusal to answer superfluous interrogatories, is not pertinent here. Verbalis v. Verbalis, 286 Pa. Super. 209, 428 A.2d 646 (1981), approving a non pros as a discovery sanction, provides a closer precedent, although adamant refusal to answer interrogatories was involved there, rather than an unexplained failure to respond, as in this case.
Here, Redek's counsel served on DOT, along with the notice of appeal, a request for production, under Pa. R.C.P. No. 4009, of any department records of previous violations by Redek. DOT does not dispute the relevance of the request which sought, at hearing, to lay the basis for claiming entitlement to a warning in lieu of a suspension upon a first offense, under the discretionary terms of 67 Pa. Code § 175.221(8).
The date of hearing here was fifty-one days after service of the request, placing the Commonwealth twenty-one days overdue beyond the thirty-day time limit. Although the administrative judge, in lieu of granting DOT's motion for continuance, afforded DOT an opportunity, until the end of the hearing day, to present evidence excusing its nonresponse, DOT presented no evidence, preferring now merely to argue on the brief its claims, external to the record, relating to its heavy workload.
The only difference between this case and Spilove is that the party there seeking discovery communicated several demands for answers before proceeding to court, while here Redek's counsel deferred making any motion for sanctions under Pa. R.C.P. No. 4019 until the day of hearing. Although we acknowledge that many members of the bar commonly follow the courteous custom of making inquiry of opposing counsel and issuing reminders when such responses are overdue, we cannot conclude that Administrative Judge PAPADAKOS abused his discretion in settling upon the sanction which he here imposed, expressing his concern and responsibility for the prompt disposition of matters before the court.
A state government agency, such as DOT, has a responsibility for timely implementation of the court's business which is no less than that which rests upon other parties. We affirm the decision.
ORDER
NOW, April 4, 1983, the order of the Court of Common Pleas of Allegheny County, dated January 5, 1981, is affirmed.
I cannot quarrel with the majority opinion that the sanction imposed by the trial judge was within his discretion, but I am compelled to conclude that in this instance, that discretion was abused.
The papers sought by Petitioner's counsel were at the hearing and were presented to counsel before the hearing commenced. The precise nature of the matter sought to be discovered was Petitioner's prior record with DOT. That was exhibited to counsel, albeit well beyond the prescribed time for doing so.
It would seem to me that the imposition of sanctions under these circumstances produces a harsh and even unwarranted result. Surely there has been no prejudice to the Petitioner since he knew what his prior violations were. If the DOT record was not correct, he was in no better or worse position by reason of his late knowledge of that fact.
I would reverse and remand for a hearing on the merits.