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HomeMy WebLinkAbout05-3031 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.H. DONNELLEY PUBLISHING AND ADVERTISING, INe. t/d/b/a SPRINT YELLOW PAGES Civil Action - Law Plaintiff: vs. No.: OS; - 20J/ Cu',l/EA-WJ THOMAS S. DIEHL Defendant NOTICE TO DEFEND TO: Thomas S. Diehl 302 South Pitt Street Carlisle, Pennsylvania 17013 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff You may Jose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TOOR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU C.<\.NNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MftY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (800) 990-9108 LER, LERMAN, S BY: C S B. ALKINS, ESQUIRE Attorney for PI intiff Supreme Court .D. #84738 110 South North rn Way York, pennsylvan.a 17402 Telephone: (717) 757-7602 , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. t/dlb/a SPRINT YELLOW PAGES Civil Action - Law Plaintiff: vs. No.: THOMAS S. DIEHL Defendant A VISO USTED HA smo DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objeciones alas demandas en su contra. Se Ie avisa que si no se defienda, el caso puede proceder sin usted yla Corte puede decidiren su contra sin mas aviso 0 notificacion por cualquier dinero reclamado en la demanda 0 por cualquier otra queja 0 compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORT ANTES PARA USTED. LLEVE EST A DEMANDA A UN ABOGADO INMEDIATEMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RH. DONNELLEY PUBLISHING AND ADVERTISING, INe. t/dlb/a SPRINT YELLOW PAGES Civil Action - Law Plaintiff: No.: DS;- CiuL'!~ vs. THOMAS S. DIEHL Defendant AND NOW, TO WIT, this COMPLAINT ~ dayof JM~ , 200~ comes the Plaintiff, R.H. Donnelley Publishing and Advertising, Inc. t/dfb/a Sprint Yellow Pages, by and through its attorneys, Griffith, Strickler, Lerman, Solymos & Calkins, and Charles B. Calkins, Esquire and files its Complaint against the Defendant, Thomas S. Diehl, and in support thereof states as follows: I. The Plaintiff, R.H. Donnelley Publishing and Advertising, Inc. t/d!b/a Sprint Yellow Pages, is a duly organized Kansas corporation doing business in Pennsylvania whose business address is 1615 Bluff City Highway, Bristol, Tennessee 37620. 2. The Defendant, Thomas S. Diehl, is an adult individual whose address is 302 South Pitt Street, Carlisle, Cumberland County, Pennsylvania 17013. 3. The Plaintiff at oral instance and request of the Defendant provided certain advertising and publication services for the Defendant at the times and in the amounts as more fully set forth in a true and correct copy of the Plaintiff s Account Summary which is attached hereto, made a part hereof, and marked Exhibit "A". 4. The amounts charged for the advertising services are enumerated on Exhibit "A" totaled $32,796.07. 5. Prices charged for the advertising services were fair and reasonable and further are ~ what the Defendant agreed to pay therefore. 6. The Defendant has tendered payments in a total amount of$25,983. 79 to the Plaintiff. 7. The Plaintiffhas credited the Defendant's account in the total amount of$25,983.79. 8. The Plaintiffhas added late charges and collection fees to the Defendants account in the total amount of$5,488.75. 9. Due to the foregoing, the Defendant remains owing a total amount of$12,301.03 plus interest to the Plaintiff. 10. Plaintiffhas demanded payment from the Defendant in the amount of$12,301.03, but Defendant has refused and continues to refuse to pay the same or any part thereof. II. The amount in controversy herein requires mandatory reference to arbitration. WHEREFORE, Plaintiff respectfully demands judgment against the Defendant, for the sum of Twelve Thousand Three Hundred One and 03/1 00 ($12,301.03) Dollars together with interest plus costs of suit. BY: CARL . ALKINS, ESQUIRE Attorney for PI intiff Supreme Court I.D. #36208 110 South Northern Way York, Pennsylvania 17402 Telephone: (717) 757-7602 R Js ~ "" :t ~ ~~:r li",:f:'1:;:i ~~~~~',,' w J;I{j5 [., (",J, "I~~~:~ ~. ,., - 0., ! 8~~&' tN Q t? (1)5: . ." ~'" ~ , ~ (5 n ._. .f! ?"? ~g~i%~ ~ '2 C)Q .~ z!cc<; 0... '" <0 ~ .... .! ~ ~II~ > ~ E E ~ "' . . I EXHIBIT A ~~~~~~~8~~~~m~g~~~~~~~~~ ~~~~~~~ci~~~~~3~~~~S~~~~~ IH ~"" ~u " ~B ji O~ !j :et!?~:ele ~UU . . . ~ ~ ~ ~~~ }ea;~ ~a~ $ ~ 00. . 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" ~ ~ i " 8 ~ l:! ill ~ " 8 ~ .. ~ ~ .. ;, < :i E . j; g ~ <. o~ !~ ~,.:. << gi >, =" .a"<i ~* ~.; [i ~~ 0, ~. ~. ,~ g < " 0" o. [1.'e "< .- .~ i f- ~I ~. .. '0 o .E ~] 0;, H ~" 00 ~E H li~ 22 B :Et; it :Ell> l;'6 ". .> '~c ~! E! .. e.5 , . g~ "E ,; ~ ;;~ .$ ~ ,~ r <11= Eli ~~ .Eli H <0 ,0 .0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. tld/bla SPRINT YELLOW PAGES Civil Action. Law Plaintiff: vs. No.: THOMAS S. DIEHL Defendant VERIFICATION I, t t \ \, "r-< V, f\ \c ~v (l , hereby verify that the statements made in the foregoing document are true and correct to the best of my personal knowledge or information and belief, as well as reports, records, conferences and other investigatory material made available to me. To the extent that the foregoing contains averments which are inconsistent in fact, I verify that my knowledge or information is sufficient to form a belief that one or more of them is true, although I am currently unable, after reasonable investigation, to ascertain which of the inconsistent averments are true. To the extent that the foregoing contains legal conclusions or opinions, I hereby state that my Verification is made upon the advice of counsel, upon whom I have relied in the filing of this document. This Verification is made subject to the penalties of 18 Pa. C.s. ~4904 related to unsworn falsifications to authorities. DATED:Sl '/ [65 R.H. Donnelley Publishing and Advertising By: (V';~/~(( ~ Cl ~ 0 re (':::l c--'> -.1 ~ 111 G, U' ~.,] 7'\l '- V1 c:: rn f': ~ -(.J\"\". -- -nO ~ c 1- In w ~.) <. ) - ~ \)' ;~\~ :1;~ b ~~ ~~?B W -~ ....(n ~ - '2, )J - .- ., ~,~ 4) .(:: 1" ~ <.n. (JO ~ ...4... - ---- SHERIFF'S RETURN - REGULAR CASE NO: 2005-03031 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND R H DONNELLEY PUBLISHING VS DIEHL THOMAS S RON KERR , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon DIEHL THOMAS S the DEFENDANT , at 1906:00 HOURS, on the 21st day of June 2005 at 39 BRIAN DRIVE CARLISLE, PA 17013 by handing to DANA DIEHL, WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 3.70 .00 10.00 .00 31.70 ?'~~ R. Thomas Kline 06/22/2005 GRIFFITH STRICKL LERMAN SOLY Sworn and Subscribed to before By: me this ~ day of Sheriff (f.il ~"o:! A.D. ( ~~t(ln:!:a~~" { '-H IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA RH. Donnelley Publishing And Advertising, Inc. t/d/b/a Sprint Yellow Pages Plaintiff Civil Action - Law No. 05-3031 v. Thomas S. Diehl Defendant AAfSWE'R, AND NOW comes the Defendant, Thomas S. Diehl, Esq., who offers his Answer to Plaintiff's Complaint: I. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that the Defendant entered into several contracts with Sprint Yellow Pages (hereinafter "Sprint") from 1998 until 2002, but Plaintiffs complaint does not indicate under which one, if any, this action is being brought. The Defendant demands proof of the contract at issue. Furthermore it is denied that R H. Donnelly was privy to any of the contracts, and the Defendant is unaware of any relationship between Sprint and R H. Donnelly 4. Denied. The contract at issue, once produced by the Plaintiff, will speak for itself regarding the fees charged. 5. Denied in part. The fees charged by Sprint and/or the Plaintiff were neither fair nor reasonable. The Defendant however does acknowledge entering into a contracts with Sprint with the same reservations as express in answer to paragraph #3. 6. After reasonable inquiry, the Plaintiff is without knowledge or the truth of this averment. Proof is demanded at trial. 7. After reasonable inquiry, the Plaintiff is without knowledge or the truth of this averment. Proof is demanded at trial. 8. After reasonable inquiry, the Plaintiff is without knowledge or the truth of this averment. Proof is demanded at trial. 9. After reasonable inquiry, the Plaintiff is without knowledge or the truth of this averment. Proof is demanded at trial. 10. Admitted. 11. This averment is a conclusion at law to which no response is necessary. Dated: August 18, 2005 Respectfully submitted, 4?.{J.&q P A ID# 78942 P.O. Box 613 Harrisburg, PA 17108 (717) 241-4287 VERIFICATION I, Thomas S. Diehl, hereby verifY that the statements made in the foregoing document are true and correct to the best of my personal knowledge, information and belief. Furthermore I verify this Answer subject to the penalties of 18 Pa. C.S. Sec. 4904 related to unsworn falsifications to authorities. Dated: August 18, 2005 T~ CERTIFICATE OF SERVICE I, Thomas S. Diehl, state that the attached documents were mailed to the '\ following individual(s) by fitst class mail, postage prepaid on August 18,2005 and addressed to: Charles B. Calkins, Esq. 110 South Northern Way York, PA 17402 (717) 757-7602 Date: August 18, 2005 ~qQ o ~;. --> (:,,::;) c'" <>' ~ G"") L C ~'~~ -<: cP ~ :C-n rnr:: -om -" 'J: ~?,o :...._ ~T" -'--'J Qc,'J ,"-)rn ;:;--\ 2p :-< ;; -=.~ ,,-, c:> RA WLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 The Widener Building One South Penn Square Philadelphia, PA 19107 215-575-4200 Attorney for Defendant, Exel Logistics, Inc., n/k/a Exel Inc. TIMOTHY NEECE COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff v. NO. 05-3034 GENERAL MILLS, INC. Defendant/Third Party Plaintiff, and EXEL LOGISTICS, INC., n/kIa EXEL INC., and SWIFT TRANSPORTATION CO., INC. Additional Defendants, WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of defendant, Exel Logistics, Inc., nlk/a Exel Inc., in the above-captioned matter. RA WLr : By: J Ni I A. reene, Esquire Attorneys for Defendants ENTRY OF APPEARANCE Kindly enter my appearance on behalf of defendant Exe! Logistics, Inc., n/kIa Exel Inc., in the above-captioned matter. P By: ary N. Stewart, Esquire Attorneys for Defendant Exel Logistics, Inc., nlk/a Exel Inc. 1176259 v.l CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Withdrawal/Entry of Appearance of Defendant was served via first-class United States mail, postage prepaid, to the parties listed below: Alyssa L. Rebensdorf, Esquire Ailana T. McIntosh, Esquire Booth & Tucker, LLP 230 South Broad Street Second Floor Philadelphia, PA 19102 Bobbie Ann Thornburg, Esquire Feinberg & Silva Suite 1805 2000 Market Street Philadelphia, PA 19103 Robert P. Corbin, Esquire German Gallagher & Murtagh The Bellevue, Fifth Floor 200 S. Broad Street Philadelphia, PA 19102 /' Date: $?' -' L j -- 0 .5 1176259 v.l ?:, ~}~ o.;~ . ~';;, '1~~'- J":';'> k.-' _ j."1r"(.;, 3. 'i\ 'fJ> :P": ~ G' - cP .. q, -' ~~ :r:,i;3 (~~-\Q. :::..c"'"l'\ <t. w.. '" '"", 1fl = :S- o.>>- o o ,.., " - y . . . In the Court of Common Pleas of Cumberland County, Pennsylvania R.H. DONNELLEY PUBLISHING AND ADVERTISING,INC. t/d/b/a SPRINT YELLOW PAGES . . . . . . . . . . v. . . . . ARBITRATION THOMAS S. DIEHL . . . . No.: 05-3031 . . . . Civil Action - Law . . . . PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Charles B. Calkins, Esquire, counsel for the Plaintiff in he above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $12,301.03. The counterclaim ofthe Defendant in the action is $0. The following Cumberland County attorney's are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: None WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ~ () r-.) 0 ~ '- <= c = '"T1 N ~ 0'" i ~~.. :J: ~ \t lJlr > m~ \) rnr. -< -"';t."--'I -om D zC ::rJ 0 " ~ (f),; N 96 -"<0- :::::::l-r; 'l GJ V 1-;: -0 ;;.1.-:0 "~~..... ',J (") ~ \....; ..~:::: ("'\ :x z ~ ~E: om \) 'i! ~ -0 ~ 0 ~ E U1 =< --t- '"-( R.B. DONNELLEY PUBLISHING AND ADVERTISING,INC. t/d/b/a SPRINT YELLOW PAGES . . In the Court of Common Pleas of Cumberland County, Pennsylvania . . . . . . . . . . v. . . . . ARBITRATION THOMAS S. DIEHL . . . . No.: 05-3031 . . . . Civil Action - Law . . . . CERTIFICATE OF SERVICE AND NOW, this the ::)1"-- day of ~, 2006, I, Charles B. Calkins, Esquire, a member ofthe firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy of the Petition for Appointment of Arbitrators, addressed to the party as follows: Thomas S. Diehl 302 South Pitt Street Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS BY: Qfl ~k CHARLES B~CA1,KINS, ESQUIRE Supreme Court lD. No. 36208 Attorney for Plaintiff 110 South Northern Way York, Pennsylvania 17402-3737 Telephone: (717) 757-7602 (") ~ ~~f ~T~-:,'.!:.. ~r.: .:.- ". ~.i-=:' Pc '7 ~ ,....;) = = c::r- ::K ):100 -< ~ ~:!I hi ~.o 06 ~'"T; ?J:D '70 "-m 8 ~ ;.<; N -0 :Jl: ca o U1 :-.1\.. ,. R.H. DONNELLEY PUBLISHING AND : ADVERTISING, INC. t/dlb/a SPRINT : YELLOW PAGES : In the Court 0/ Common Pleas o/Cumberland County, Pennsylvania : : v. : : ARBITRATION THOMAS S. DIEHL : : No.: 05-3031 : : Civil Action - Law : : ORDER OF COURT AND NOW, 1117 /1 ~llJ~ (h. ,Esquire, r '1/ are appointed arbitrators in the above-captioned action as prayed for. , 2006, in consideration of the foregoing petition, , . squire, and fYl~ C. ~qUire ~'1~ , PJ. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA R.H. Donnelley Publishing And Advertising, Inc. t1d/b/a Sprint Yellow Pages Plaintiff Civil Action - Law No. 05-3031 v. Thomas S. Diehl Defendant MOTION FOR ORDER TO COMPEL ANSWERS TO INTERROGATORIES AND REOUEST FOR PRODUCTION Defendant, Thomas S. Diehl (hereinafter "Defendant"), moves this Court to Rule 4019 of the Pennsylvania Rules of Civil Procedure for an Order compelling plaintiff R. H. Donnelley Publishing and Advertising, Inc. (hereinafter "Plaintiff') to answer Defendant's Interrogatories and Request for Production of Documents, and in support of said motion states as follows: 1. On April 19, 2006, Defendant served counsel for Plaintiff with the original and two copies of Defendant's Interrogatories and Request for Production of Documents (First Set) propounded upon Plaintiff. 2. On May 26, 2006, Defendant sent Plaintiffs counsel a letter notifying him that, under the Pennsylvania Rules of Civil Procedure, Plaintiffs responses to outstanding discovery were overdue. A true and correct copy of this letter is attached hereto as Exhibit "A". 3. In an exchange of emails on June 2, 2006, the parties agreed to extend the deadline to respond to June 18, 2006. This agreement was confirmed in a letter from Plaintiff's counsel to Defendant dated June 2, 2006. True and correct copies of the emails and the subsequent letter are attached hereto as Exhibits "B" and "C", respectively. 4. As of the date of this motion, Plaintiff has failed to respond in any fashion to Defendant's discovery requests. WHEREFORE, Defendant respectfully requests that this Court enter an Order compelling Plaintiff to respond fully to Defendant's outstanding interrogatories and to produce all requested documents within ten (10) days of the date of said Order, under penalty of further sanctions pursuant to Pa.R.C.P 4019; OR issue a Rule to Show Cause, if any, the Plaintiff may have for not responding to Defendant's request for discovery; OR any other relief the Court deems appropriate. Respectfully submitted, c:t- S,I2f) Thomas S. Diehf P.O. Box 613 Harrisburg, P A 171 08 (717) 241-4287 P A ID# 78942 Thomas S. Diehl P.O. Box 613 Harrisburg, P A 17108 (717) 241- 4287 yourfriendtomdieh1@yahoo.com May 26, 2006 Charles B. Calkins 110 South Northern Way York, PA 17402 Re: R.H. Donnelley Publishing Civil Action No. 05-3031 Cumberland County Dear Mr. Calkins, On April 19, 2006 I mailed you interrogatories regarding the above matter. I have not received a response. I am contacting you pursuant to Pa.R.C.P. 239.3(c) in order to resolve this impasse without court action. If you need additional time to answer, please contact me and I will stipulate to any reasonable extension. If I do not hear from you within five (5) business days, I will presume you do not intend to respond and I will govern myself accordingly. Your attention is greatly appreciated. Very Truly Yours, Thomas S. Diehl E)C.hibi+ A Yahoo! Mail- yourfriendtomdiehl@yahoo.com Page 1 of2 ,- " .'(.i:3o.QQl My"Ya.bQQ.! M.~j! Make Yahoot vour home: oaoe Search: ~.>--_~_c_~_____",~,,~~'-"-""____.'____"__'_~~__"~__ Welcome, yourfriendtomdieh... [Sian Out, My Account] Mail Home ~ I::I..eill 1lAsoof0 MAIL I Mail v t-Addr;~~;;-.;;rcale~d;r-";I What's New - Mail For Mobile - Upgrades - Options :-~~,,!an] ~I'''~~t~ ~ VONAGE: Save up to ~50% on phone service [Folder. ---[Add:-EditTl . I Inbox (1) I Draft I Sent Bulk (2) Trash i [Empty] i [Empty] [ My Folders [Hide] Pat -.C" See your . credit score: $0 IlIRl Bad Credit IIIiI Refinance Rates .... Online Degree Programs -.: Best card for _ bad credit ~~~~li~?1I _ 3~Y;, '~""~',"'~'> ,c\&'if"e%! '-~""" ,'. PrevIous I ~ I Back to Messaoes ~~t b~'~l~ ~i~~"~rij ~~~ ~"."A,'."'''''",~,.to.' ',-' ""'.". .,~..,;.,.- "C ~.. '.,,,'''' ."""w~",'..., " .... .. ", . This message is not flagged. [ Flag Message - Mark as Unread J Printable View _....".,,_._~.,.__._"'---_._"-~.~.._._-------'--'-"'."-'----_...__.._-_."_.~-_......_._--,-_...~_._,~'"--,..__.."-"...-.-,.--.-....- Date: Fri, 2 Jun 2006 13:42:46 -0700 (PDT) "tom dlehl" <yourfriendtomdiehJ@yahoo,com> ~Add to Address Book iii Add Mobile Alert From: SubJect: Re: R.H. DonneJley Publishing and Advertising, Inc. t/d/b/a Sprint Yellow Pages v, Thomas S. Dlehl To: "Brittney Fisher" <bfisher@gslsc,com> Ms. Fisher, Thank you for your response. A 30 day extension is line with me. The original answers were due May 19th; thirty more days takes us to Sunday, June 18th. No one wants to have anything due over the weekend, so add two more days and kindly forward Donnelley's answers to me no later than Tuesday, June 18, 2006. Thank you, Tom Diehl Brittney Fisher <bflsher@gs/sc.com>wrote: Dear Mr. Diehl, I am in receipt of your correspondence dated 5/26/2006, wherein you indicated you will grant a reasonable extention of time to respond to your written discovery. Please consider this a request for a 30 day extension to complete Defendant's responses. Very truly yours, Charles B. Calkins E')(hibif. B http://us.f516.mail.yahoo.com/ym/ShowLetter?MsgId=966_ 8580801_477173_775_1416_0... 6/2/2006 Yahoo! Mail. yourfriendtomdiehl@yahoo.com Page 2 of2 " This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this in error, please (1) do not forward or use this information in any way; and (2) contact me immediately. Thank you. Brittney M. Fisher Griffith, Strickler, Lerman, Solymos & Calkins Do You Yahoo!? Tired of spam? Yahoo I Mail has the best spam protection around hltp:/lmail.yahoo.com I-~~-W r.---~-; J ~.c"-:;--;~-:J ~~tt"v~ 'Dill~.~ i.~I?IV";~I'" t.ij:l'~~y..h~ :;-i\.'!"v""'dt~l!Ii Previous I ~ I Back to Messaoes Save Messaae Text I Full Headers ~.~ !t~~~'~ t;~fc -. ">;"".,; '" ".~~tf',,*~~,_, ",'~,~~J; ~:~m j:}:,)" ,';" ',;,' 1iib/f~<_',' ...., ',' '- ~~ ,..:: Copyright<CJ 1994~2006 YahooIlnc. All rights reserved. Terms of Service - CopyrighVtP Policy ~ GUidelines. Ad Feedback NOTICE: We collect personal information on this site. To learn more about how we use your information, see our Privacy Policy http://us.f516.mail.yahoo.comlym/ShowLetter?Msgld=966 _8580801377173 _775_1416_0... 612/2006 LAW OFFICES GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ROBERT M. STRICKLER ROBERT A. lERMAW PETER D. SOL YMOS CHARLES B. CALKINS PAUL G. LUTr MICHAEL B. SCHEIB. THOMAS B. SPONAUGLE 1105. NORTHERN WAY YORK, PENNSYLVANIA 17402-3737 TELEPHONE: (717) 757-7602 FAX: (717) 757.J7B3 EMAll: info@QsIsc.com WEBS1TE: ~ ANN MARGARET GRAB KRISTI A. GOHN GLENN J. SMITH OF COUNSEL Charles B. Calkins' EMAIL: Ccalkins@aslsc.com ROBERT H. GRIFFITH MICHAEL P. BIANCHINI OAlso Member MD Bar -Ll.M (Taxation); also M6fllber CT Bar -Also Member NY lInd D.C. Bars June 2, 2006 Mr. Thomas S. Diehl PO Box 613 Harrisburg, PA 17108 RE: R.H. Donnelley Publishing tjd/b/a Sprint Yellow Pages v. Thomas S. Diehl Dear Mr. Diehl: I am in receipt of your correspondence dated 5/26/2006, wherein you indicated you will grant a reasonable extension of time to respond to your written discovery. Please consider this a request for a 30 day extension to complete Defendant's response. v e1\ truly yours, ~... CHARLES B. CALKINS CBC/bmf E><h;b;+ C I, Thomas S. Diehl, hereby certify that on the CERTIFICATE OF SERVICE ?*l" day of July, 2006 I served true and correct copies of the foregoing Motion for Order to Compel Answers to Interrogatories and Production of Documents and proposed Order(s) by United States first class mail, postage prepaid, on counsel for plaintiff: Charles B. Calkins Griffith, Streckler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402-3737 c:i s i/J) Thomas S. Di~ / ';':_('\ "."<~' --' ~-C-"("- \,'" -- c;;. ..--(': f~::' (,,) R. H. DONNELLY PUBLISHING AND ADVERTISING, INC. tJd/b/a SPRING YELLOW PAGES Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 18th day of July, 2006, upon consideration of the foregoing / ' Motion to 'Compel Answers to Interrogatories and Request for Production, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiff to show cause why the Defendant is not entitled to the relief requested; 2. The Plaintiff will file an answer to this petition on or before August 8, 2006; 3. A copy of said answer will be filed with this Court; 4. The petition shall be decided under Pa.R.C.P. No. 206.7; 5. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, a hearing will then be scheduled. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall be granted. By the Court, ~k J. M. L. Ebert, Jr., ,;fI'iomas S. Diehl Defendant bas ,\)\p p.. ~" \) he" . \ l:::l . I' \ n \ -.i\-\ \r0~7 ~ '_,~, 0 \' .',,.1 ,," IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA R.H. Donnelley Publishing And Advertising, Inc. tJdIb/a Sprint Yellow Pages Plaintiff Civil Action - Law No. 05-3031 v. Thomas S. Diehl Defendant MOTION TO MAKE RULE ABSOLUTE AND NOW comes the Defendant, Thomas S. Diehl, who avers the following: 1. On July 18, 2006 this Court issued an Order in response to Defendant's Motion for Order to Compel Answer to Interrogatories and Reauest for Production. A copy of said Order is attached as "Exhibit A". 2. Order of July 18,2006 directed Plaintiff to file an answer to Defendant's petition on or before August 8, 2006. 3. Order of July 18, 2006 further states that if no answer to the Rule to Show Cause is filed by the required date, the relief requested by Defendant shall be granted. 4. As of the date of this writing Plaintiff has failed to file an answer. WHEREFORE the Defendant requests this Court to make its Rule Absolute by issuing an Order directing the Plaintiff to answer fully Defendant's first set of Interrogatories and Request for Production of Documents within ten (10) days hereof, under penalty of further sanctions. Respectfully Submitted, d..5.j)J) Thomas S. Diehl P.O. Box 613 Harrisburg, PA 17108 (717) 241-4287 VERIFICATION I, Thomas S. Diehl, hereby verify that the statements made in the foregoing document are true and correct to the best of my personal knowledge, information and belief. Furthermore I verify this Answer subject to the penalties of 18 Pa. C.S. Sec. 4904 related to unsworn falsifications to auth~s. Dated: August 10,2006 G ~ > j)~ Thomas S. Diehl CERTIFICATE OF SERVICE I, Thomas S. Diehl, state that the attached documents were mailed to the following individua1(s) by first class mail, postage prepaid on August 10,2006 and addressed to: Charles B. Calkins, Esq. 110 South Northern Way York, PA 17402 (717) 757-7602 Date: August 10, 2006 ~ s. pJ} Thomas S. Diehl . . . ... R. H. DONNELLY PUBLISHING AND ADVERTISING, INC. t/d/b/a SPRING YELLOW PAGES Plaintiff IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 18th day of July, 2006, upon consideration of the foregoing Motion to Compel Answers to Interrogatories and Request for Production, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiff to show cause why the Defendant is not entitled to the relief requested; 2. The Plaintiff will file an answer to this petition on or before August 8, 2006; 3. A copy of said answer will be filed with this Court; 4. The petition shall be decided under Pa.R.C.P. No. 206.7; 5. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, a hearing will then be scheduled. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall be granted. By the Court, ~1 J. M. L. Ebert, Jr., Charles B. Calkins, Esquire Attorney for Plaintiff Thomas S. Diehl Defendant bas \\ I, E ~hj~;f A ~ ~ . ... g ,....;t ~ = c::r- s:: ~ 1 ~.g] c: CO') I~ ~~:~ 0 <::: c.. :J:lIo ~Q :x -~ 0 Sc: - ~ ~ .. c.n (J"I \\ I, P. t;JiAx 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R H. DONNELLY PUBLISHING AND ADVERTISIN ,INC. tld/b/a SPRING YE LOW PAGES Plain iff V. THOMAS S. DIEHL Defe dant NO. 05-3031 CIVIL : CIVIL ACTION - LAW ORDER OF COURT AND NOW, t is 15th day of August, 2006, upon motion of Defendant, Thomas S. Diehl, an the Plaintiff having failed to answer the Rule issued July 18, 2006, IT IS HEREBY ORD RED AND DIRECTED that the Plaintiff, R H. Donnelley Publishing and Adve ising, Inc., shall answer fully Defendant's first set of Interrogatories and Request for Pro uction of Documents on or before August 30,2006. Failure to answer will result in he imposition of sanctions. Charles B. Calkins, Attorney for Plaintiff Thomas S. Diehl Defendant bas By the Court, ~t M. L. Ebert, Jr., J. f-(~CJ~ ~ ~ ~ ViNVAlASNN3d AlNi1CO f1':d'H:::8~na II :'1 Wd S I 5!W SOOl Al:liflONOH10od 3H1 :10 3:xJ~o-G311:l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.H. Donnelley Publishing And Advertising, Inc. t/d/b/a Sprint Yellow Pages Plaintiff Civil Action - LaW No. 05-3031 v. Thomas S. Diehl Defendant PETITION FOR CONTEMPT AND SANCTIONS UNDER P.R.C.P. 4019 AND NOW comes the Defendant, Thomas S. Diehl, who avers the following: Factual Back!!:round 1. On April 20, 2006 Defendant filed a first set of Interrogatories and Request for Production of Docwnents under P.R.C.P. Rules 4005 and 4009. 2. On or about May 5, 2006, in lieu of responding to Defendant's discovery request, Plaintiff instead filed a petition to schedule and arbitration, which is currently scheduled for September 13, 2006. 3. Thirty (30) days had elapsed since Plaintiff was served with the Defendant's discovery request without a response from Plaintiff. 4. By letter dated May 26,2006, Defendant contacted Plaintiff pursuant to P.R.C.P. 239.3(c) in an effort to resolve the impasse without necessitating action by the Court. 5. Defendant's letter of May 26,2006 stated that the Defendant would, "Stipulate to any reasonable extension." 6. By email and letter of June 2, 2006, Plaintiff requested an extension of thirty (30) days to respond to Defendant's discovery request, which was agreed to by Defendant. 7. An additional thirty (30) days had elapsed since the Plaintiff had requested an extension and the Plaintiff had still not responded to Defendant's discovery request. 8. On July 10, 2006 Defendant filed a Motion for an Order to Compel Answers to Interrogatories and Request for Production. 9. In response, the Court issued Order dated July 18, 2006 (Attached hereto as "Exhibit A") that instructed the parties that this matter would be addressed pursuant to P.R.C.P. 206.7 and thereby directed to Plaintiff to file an answer to Defendant's petition on or before August 8, 2006. 10. Plaintiff did not file an answer in response to the Court's Order of July 18,2006. 11. On August 10, 2006 Defendant filed a Motion to Make Rule Absolute. 12. On August 15, 2006 the Court issued an Order (Attached hereto as "Exhibit B") directing Plaintiff to fully answer Defendant's first set of Interrogatories and Request for Production of Documents on or before August 30, 2006, and that Plaintiffs failure to do so will result in the imposition of sanctions. 13. Notwithstanding three (3) Petitions from the Defendant and this Court's two (2) prior directives of July 18, 2006 and August 15, 2006, the Plaintiff has not responded in any way to Defendant's discovery request. 14. The parties are less than two (2) weeks prior to an arbitration requested by the Plaintiff and currently scheduled for September 13,2006 and the Plaintiff has not yet provided anything in response to Defendant's request for discovery made more than four (4) months ago. 15. The Plaintiffs failure to respond to the Court's Ordered discovery has prejudiced the Defendant such that the Defendant is incapable of formulating a defense against the Plaintiff s complaint. ADDlication of the Pennsvlvania Rules of Civil Procedure 16. Sanctions for failure to respond to discovery are governed by P.R.C.P. 4019. 17. This Court may make an appropriate Order for sanctions as the Plaintiff has failed to: a. Serve answers to written interrogatories. (Rule 4019(a)(I)(i)); b. Respond to a request for production of documents. (Rule 4019(a)(I)(vii)); AND c. Obey court orders of July 18, 2006 and August 15, 2006 regarding discovery. (Rule 4019(a)(I)(viii)). 18. The Court may, when acting under subsection 4019(a), make an Order entering a judgment of Non Pros against the disobedient party. (Rule 4019(c)(3)). 19. Given the various sanctions available under Rule 4019(c), a judgment of Non Pros is the most appropriate sanction given the facts of the instant matter for the following reasons: a. Remedies under 4019(c)(1)&(2) are the functional equivalent to a judgment of Non Pros under 4019(c)(3). The Defendant has requested, among other things, the identity all witnesses and documents to be presented at hearing. Barring the Plaintiff from using such evidence, as proscribed by 4019(c)(I)&(2), would be tantamount to a dismissal with prejudice as a Plaintiff without witnesses or documentary evidence no longer has a case in chief. b. Staying the proceedings until the Plaintiff complies, as is also permitted under 4019(c)(3), only rewards the Plaintiffs non-compliance by further subjecting the Defendant to delaying the proceeding. c. A finding of attorney's fees under 4019(c)(4) would have no effect on Plaintiff as the Defendant is acting Pro Se. 20. Although dismissal of a complaint with prejudice is not a sanction specifically provided for under 4019, the "catch-all" provision of 4019(c)(5) has been interpreted to include dismissal of a complaint with prejudice. Pride Contracting. Inc. v. Biehn Construction. Inc. 381 Pa.Super. 155. 553 A.2d 82 (1989). (Attached hereto as "Exhibit C"). 21. Dismissal with prejudice of a Plaintiffs complaint for failing to respond to Defendant's interrogatories and the court's subsequent Rule to Show Cause has precedent in the Commonwealth. See Jones v. Walker. 275 Pa.Super. 524. 419 A.2d 24 (1980). (Attached hereto as "Exhibit D"). WHEREFORE, the Defendant requests this Court to issue an Order entering a judgment of Non Pros dismissing the Plaintiffs claims with prejudice consistent with the attached Order. Respectfully submitted, ~s.?PJ P.O. Box 613 Harrisburg, P A 17108 (717) 241-4287 R. H. DONNELL YPUBLlSHING AND ADVERTISING, INC. Ud/b/a SPRING YELLOW PAGES Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 18th day of July, 2006, upon consideration of the foregoing Motion to Compel Answers to Interrogatories and Request for Production, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiff to show cause why the Defendant is not entitled to the relief requested; 2. The Plaintiff will file an answer to this petition on or before August 8, 2006; 3. A copy of said answer will be filed with this Court; 4. The petition shall be decided under Pa.R.C.P. No. 206.7; 5. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, a hearing will then be scheduled. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall be granted. By the Court, ''t J. M. L. Ebert, Jr., Charles B. Calkins, Esquire Attorney for Plaintiff Thomas S. Diehl Defendant bas \\ ., E')(hibi+ A .k R. H. DONNELLY PUBLISHING : IN THE COURT OF COMMON PLEAS OF ANDADVERTIS/NG,/NC. : CUMBERLAND COUNTY, PENNSYLVANIA t1d/b/a SPRING YELLOW PAGES Plaintiff V. NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 15th day of August, 2006, upon motion of Defendant, Thomas S. Diehl, and the Plaintiff having failed to answer the Rule issued July 18, 2006, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff, R. H. Donnelley Publishing and Advertising, Inc., shall answer fully Defendant's first set of Interrogatories and Request for Production of Documents on or before August 30, 2006. Failure to answer will result in the imposition of sanctions. By the Court, '\\ 1. M. L. Ebert, Jr., J. Charles B. Calkins, Esquire Attorney for Plaintiff Thomas S. Diehl Defendant bas ~,.~ ..~_. J~r FROM ~ ... S1"y__"~, ...... ..,~ ... .. . """'Vtaut, fftJre unto...... ?-G~Coo~~ . /-CL ~~.. .......~ C><(y-g f ><h;b;+- B \' I, lA~:'.... y~vv. 553 A.2d 82 381 Pa.Super. 155,553 A.2d 82 (Cite as: 381 Pa.Super. 155, 553 A.2d 82) H Superior Court of Pennsylvania. PRIDE CONTRACTING, INC., Appellant, v. BIEHN CONSTRUCTION, INC., Appellee. Argued Oct. 14, 1988. Filed Jan. 6, 1989. Reargument Denied Feb. 14, 1989. Plaintiff appealed from an order of the Court of Common Pleas, Chester County, Civil Division, No. 85-05691, Smith, J., which dismissed its complaint with prejudice as a failure to comply with a court order directing discovery. The Superior Court, No. 2634 Philadelphia 1987, Wieand, 1., held that trial court did not abuse its discretion by dismissing complaint with prejudice as a sanction for plaintiff's willful disregard of discovery rules and two orders which court had entered directing discovery, particularly in light of fact that defendant had been prejudiced by plaintiffs failure to provide necessary discovery . AffIrmed. West Headnotes ill Pretrial Procedure 307A ~46 307A Pretrial Procedure 307 All Depositions and Discovery 307AlI(A) Discovery in General 307 Ak44 Failure to Disclose; Sanctions 307 Ak46 k. Dismissal or Default Judgment. Most Cited Cases Although dismissal of complaint with prejudice is not a sanction specifically provided for by applicable discovery rule, "catch-all" provision of rule has been interpreted to include dismissal of complaint with prejudice. Rules Civ.Proc.. Rule 40 1 9(c)(5), 42 Pa.C.S.A. ill Appeal and Error 30 ~961 30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k96 1 k. Depositions, AffIdavits, or Discovery. Most Cited Cases In reviewing an order dismissing a complaint as a Page 1 discovery sanction, appellate court must be satisfied that trial court selected a punishment appropriate for the violation. Rules Civ.Proc.. Rule 4019, 42 Pa.C.S.A. m Pretrial Procedure 307 A ~46 307 A Pretrial Procedure 307 All Depositions and Discovery 307AlI(A) Discovery in General 307 Ak44 Failure to Disclose; Sanctions 307 Ak46 k. Dismissal or Defaqlt Judgment. Most Cited Cases Trial court did not abuse its discretion by dismissing complaint with prejudice as a sanction for plaintiff's willful disregard of discovery rules and two orders which court had entered directing discovery, particularly in light of fact that defendant had been prejudiced by plaintiffs failure to provide necessary discovery. Rules Civ.Proc.. Rule 4019,42 Pa.C.S.A. ill Constitutional Law 92 ~305(3) 92 Constitutional Law 92XII Due Process of Law 92k304 Civil Remedies and Proceedings 92k305 Actions 92k305(3) k. Procedure in General; Limiting Defenses. Most Cited Cases Pretrial Procedure 307 A ~46 307 A Pretrial Procedure 307 All Depositions and Discovery 307AIl(A) Discovery in General 307 Ak44 Failure to Disclose; Sanctions 307 Ak46 k. Dismissal or Default Judgment. Most Cited Cases Plaintiffs due process rights were not violated by the absence of a hearing prior to dismissal of its complaint with prejudice for failure to comply with discovery where plaintiff failed to comply with initial court order for discovery, and ignored a second order for discovery resulting from a conference at which all parties were represented. Rules Civ.Proc.. Rule 4019,42 Pa.C.S.A.; U.S.C.A. Const.Amend. 14. **82 *157 Ronald F. Brien, Spring City, for appellant. Gary A. Rochestie, Philadelphia, for appellee. <<:l 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. ,\ E.~h:b;+ c. 11 553 A.2d 82 381 Pa.Super. 155,553 A.2d 82 (Cite as: 381 Pa.Super. 155, 553A.2d82) Before ROWLEY, WIEAND and BECK, J1. WIEAND, Judge: Pride Contracting, Inc. (Pride) has appealed from an order which dismissed with prejudice its third amended complaint against Biehn Construction, Inc. (Biehn) for failure to comply with a court order directing discovery. Pride contends that the trial court abused its discretion by imposing an unduly harsh sanction without a hearing. We disagree and affIrm the order of the trial court. **83 Pride's complaint against Biehn contained averments that Biehn had failed to pay for work done by Pride and had dealt with Pride in bad faith. Biehn filed preliminary objections in the nature of a demurrer to the complaint, and these were sustained in part. Preliminary objections were also sustained to amended and second amended complaints. Finally, a third amended complaint was upheld against another set of preliminary objections, and Pride's action was allowed to proceed. Biehn thereafter served on Pride a set of interrogatories and requested the production of documents. Pride did not respond. Correspondence by Biehn's counsel regarding its requests was ignored. Finally, Biehn moved for sanctions, and the trial court ordered Pride to comply with Biehn's discovery requests within thirty (30) days. In response, Pride delivered to Biehn a mass of documents which were unlabeled and represented an incomplete response. The answers to interrogatories were illegibly written, inadequate, and evasive. Biehn filed a second request for sanctions, and following a conference involving the court and counsel, an order was entered directing Pride to comply with all discovery requests within *158 forty-five (45) days. In response, Pride delivered another stack of documents which, Biehn's attorney contended, were unlabeled and irrelevant. No further answers were filed to the defendant- appellee's interrogatories. Thereafter, a third motion for sanctions was filed and produced an order which dismissed the complaint with prejudice and directed the plaintiff-appellant to pay counsel fees incurred by Biehn in connection with the several motions for sanctions. On appeal, a pan~l of the Superior Court remanded to the trial court for a statement of reasons for its order. Contrary to the Court's operating procedures, the panel did not retain jurisdiction and declined to consider the appeal further. Therefore, a second appeal, following the filing of a memorandum opinion by the trial court, was filed and is now before a different panel for decision. Page 2 The imposition of sanctions for failing to comply with a court's discovery order is authorized by Pa.R.C.P. 40l9(a). The sanctions permitted are enumerated in Rule 40l9(c) as follows: (c) The court, when acting under subdivision (a) of this rule, may make (1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; . (4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a *159 refusal to submit to a physical or mental examination under Rule 4010; (5) such order with regard to the failure to make discovery as is just. Il.la1 The specific sanction to be imposed under this rule is a matter within the discretion of the trial court. Hoffman v. Memorial Osteopathic Hosvital. 342 Pa.Super. 375. 385. 492 A.2d 1382. 1387 (1985). Although dismissal of the complaint with prejudice is not a sanction specifically provided for by the rule, the "catch-all" provision of Pa.R.C.P. 4019(c)(5) has been interpreted to include dismissal of the complaint with prejudice. Feinf!old v. Philadelphia National Bank. 313 Pa.Super. 579. 583. 460 A.2d 339. 341 (1983). In reviewing an order dismissing a complaint, an appellate court must be satisfied that the trial court selected a punishment appropriate for the violation. Id. at 583. 460 A.2d at 341-342; Brunetti v. Southeastern Pennsvlvania Transportation Authority. 329 Pa.Super. 477. 481- 482. 478 A.2d 889. 891 (1984). **84 "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." Gonzales v. Procaccio Bros. Trucking Co.. 268 Pa.Super. 245. 252. 407 A.2d 1338. 1341 (1979). The court must examine the party's failure to comply in light of the prejudice caused to the opposing party. Brunetti v. ~ 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. 553 A.2d 82 381 Pa.Super. 155,553 A.2d 82 (Cite as: 381 Pa.Super. 155, 553 A.2d 82) Southeastern Pennsvlvania Transportation Authoritv. supra 329 Pa.super. at 482. 478 A.2d at 891. Whether the failure to provide information represents a willful disregard of a court order is also a factor to be considered in fashioning the severity of the sanction. Roman v. Pearlstein. 329 Pa.Super. 392, 399.478 A.2d 845.848 (984). See also: Calderaio v. Ross. 395 Pa. 196. 150 A.2d 110 (959). ill In the instant case, the trial court recited the factors it considered in dismissing Pride's action as follows: (1) Appellant's repeated failure to comply with Appellee's discovery requests, (2) good faith efforts, if any, on the part of Appellant to comply with Appellee's requests, (3) *160 Appellant's disregard of our Orders concerning discovery, (4) the extent to which Appellee was prejudiced by Appellant's failure to comply with discovery requests and Orders, and (5) the various sanctions set forth by Rule 4019. The trial court specifically found that appellant had willfully disregarded the Rules of Civil Procedure pertaining to discovery and also the two orders which the court itself had entered directing discovery. Indeed, appellant had failed even to attempt to supplement its answers to the interrogatories which were found insufficient by the court in imposing its second order. The court, therefore, found that the plaintiff-appellant had made no attempt to demonstrate good faith. The court also determined that the p1aintiff-appellant's failure to supply information was related directly to its averments of non-payment and bad faith on the part of the defendant-appellee and would seriously impair the defendant-appellee's ability to prepare a defense. The court concluded, therefore, that the defendant had been prejudiced by the plaintiffs failure to provide necessary discovery. The court stated: Twice before imposing this drastic sanction we offered Appellant the opportunity to comply with Appellee's discovery requests; twice Appellant shunned such an opportunity. In light of this conduct and such factors as repeated failure to comply with discovery requests, absence of good faith efforts to comply, disregard of our Orders, and the extent to which Appellee was prejudiced by Appellant's failure to comply with discovery requests, we concluded that dismissal was appropriate and less severe sanctions were inappropriate in this case. Although the harsh sanction of dismissal should be imposed only under the most extreme circumstances, Page 3 Calderaio v. Ross. supra, a review of the record in this case reveals that the remedy chosen by the trial court was an appropriate exercise of the court's discretion. The appellant's third amended complaint raised issues of liability for breach. of contract and bad faith in appellee's business dealings. The specific allegations thereof related to Biehn's *161 alleged failure to comply with the terms of "written contracts," failure to pay for work completed, failure to properly supervise employees, and failure to provide adequate working conditions. Pride also alleged that Biehn had forced Pride to hire additional unnecessary union laborers which ultimately forced Pride out of business. However, the interrogatories requesting specific information regarding these allegations were answered in vague and general terms.FN1 They provided no explanation whatsoever regarding the facts relied upon to support Pride's alleged causes of action. The defendant-appellee's interrogatories had related directly to the allegations contained in the third amended complaint, and the answers**85 thereto were essential to the preparation of a defense. FN1. For example, one interrogatory asked: "State the method by which Pride Contracting, Inc. calculated lost future profits of over one million dollars." Appellant replied: "An estimate which will be substantiated at trial." Many other interrogatories were answered with the statement "Information already in defendant's possession," or "in accordance with contracts." It appears also that other sanctions available to the court in this case would have achieved the same result. Thus, if the court had stricken those counts as to which the plaintiff-appellant had failed to provide discovery or had refused to receive evidence pertaining thereto, the effect would have been to deny plaintiff the right to pursue the general causes alleged in its complaint. Appellant has not contended that it provided the discovery which the. defendant-appellee requested; neither has it asserted that it was, unable to provide the requested information. After the plaintiff- appellant failed to comply with the trial court's first order, the trial court gave appellant a second opportunity to comply. Again, appellant failed to provide the requested discovery. No excuse for this failure has been offered. In view of these circumstances and the difficulty plaintiff ~ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. .' 553 A.2d 82 381 Pa.Super. 155,553 A.2d 82 (Cite as: 381 Pa.Super. 155, 553 A.2d 82) Page 4 demonstrated in alleging with specificity a cause of action, the trial court could conclude, as it apparently did, that the existence of a cause of action *162 was doubtful and that, in any event, plaintiff should not be permitted to proceed further. ill Appellant's contention that the entry ofthe court's sanction order without a prior hearing violated due process is likewise meritless. In Calderaio v. Ross, supra, the Supreme Court determined that neither notice nor hearing was a necessary prerequisite to the imposition of sanctions pursuant to Pa.R.C.P. 4019. See also: Griffin v. Tedesco, 355 Pa.Super. 475. 513 A.2d 1020 (1986). In the instant case, appellant failed to comply with a court order for discovery, a conference was held at which all parties were represented, and a second order for discovery resulting from that conference was ignored. Appellant cannot now be heard to complain that it was not given adequate opportunity to avoid the ultimate dismissal of its complaint for refusal to comply with the Rules of Civil Procedure and the orders of the court.FN2 FN2. Although appellant does not specifically object to the court's order that Pride pay the costs incurred by Biehn in litigating the issue of sanctions, we note that such order was also within the proper discretion of the trial court. See: Roman v. Pearlstein, supra. Order affirmed. Pa.Super.,1989. Pride Contracting, Inc. v. Biehn Const., Inc. 381 Pa.Super. 155,553 A.2d 82 END OF DOCUMENT <<:> 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. , , . ~ L/ 419 A.2d 24 275 Pa.Super. 524, 419 A.2d 24 (Cite as: 275 Pa.Super. 524, 419 A.2d 24) c Superior Court of Pennsylvania. Bertram E. JONES and Andrea J. Jones, Administrators of the Estate of Craig Allen Jones, Deceased; Bertram E. Jones and Andrea J. Jones, Individually, Appellants, v. James M. TREXLER, Commercial Leasing Inc. and Ennis Manufacturing Company, Inc., a Division of Easco Tool Corporation, Appellees. Submitted June 29,1979. Filed Jan. 25, 1980. Reargument Denied March 31, 1980. Plaintiffs appealed from an order of the Court of Common Pleas of Berks County, Civil Action, Law, No. 113 August Term, 1976, Eshelman, J., summarily dismissing plaintiffs' petition to open or to strike the judgment entered against them. The Superior Court, No. 2872 October Term, 1978, Gates, J., held that where plaintiffs' counsel failed to respond to defendants' interrogatories and to a rule to show cause why an order of sanction should not be granted, court subsequently entered an order dismissing plaintiffs' complaint with prejudice and entering judgment for defendants, and thereafter counsel for plaintiffs failed to me for argument brief on the petition to open or to strike the judgment until the date of argument, contrary to the court's order and the local rules of court, there was a lack of prosecution, and the lower court did not abuse its discretion by dismissing plaintiffs' petition to open and to strike judgment. Affrrmed. Dowling, J., dissented and med opinion. West Headnotes Judgment 228 €=>344 228 Judgment 228IX Opening or Vacating 228k344 k. Discretion of Court. Most Cited Cases Where counsel for plaintiffs failed to respond to defendants' interrogatories and to a rule to show cause why an order of sanction should not be granted, court subsequently entered an order dismissing Page I plaintiffs' complaint with prejudice and entering judgment for defendants, and thereafter counsel for plaintiffs failed to me her argument brief on the petition to open or to strike judgment until the day of argument, contrary to the court's order and the local rules of court, there was a lack of prosecution, and thus lower court did not abuse its discretion by dismissing plaintiffs' petition to open and to strike judgment. Pa.R.C.P. Nos. 126, 40 I 9(c)(3), 42 Pa.C.S.A. **25 *525 Lynn Erickson Stock, Reading, for appellants. Arthur Ed Saylor, Reading, for appellees. Before PRICE, DOWLING and GATES, JJ.rFN*l FN* President Judge G. THOMAS GATES of the Court of Common Pleas of Lebanon County, Pennsylvania, and Judge JOHN C. DOWLING of the Court of Common Pleas of Dauphin County, Pennsylvania, are sitting by designation. *526 GATES, Judge: This is an appeal from an order of the lower court summarily dismissing appellants' petition to open or to strike the judgment entered against them on October 30, 1978. For the reasons stated herein we affIrm the order of the lower court. The essential facts of this case are not in dispute and may be summarized as follows: On June 17 1975 sixteen year old Craig Allen Jones sustained fatal injuries when he was struck by a tractor-trailer truck while riding his bicycle. Bertram E. Jones and Andrea J. Jones, as administrators of decedent's estate and individually commenced an action in trespass against James M. Trexler IBiU, Commercial Leasing Inc.fFN2], and Ennis Manufacturing Company, Inc.rFN31. On April 19, 1977, appellees, Trexler, Commercial and Ennis served interrogatories on appellants, the Joneses, directing that they be answered within twenty days of service. No answers were frIed. FNl. James M. Trexler was driving the tractor-trailer truck. <<;) 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. ~\ E >,h,b\~ I, i:) .' 419 A.2d 24 275 Pa.Super. 524,419 A.2d24 (Cite as: 275 Pa.Super. 524, 419 A.2d 24) FN2. Commercial Leasing Inc., owned the tractor-trailer truck. FN3. Ennis Manufacturing Company, Inc., leased the tractor-trailer truck and employed James M. Trexler. Thereupon appellees, after notifying appellants of their intention to. initiate sanction procedures, filed a motion for an order of sanction pursuant to Pa.R.C.P. 4019(c)(3) on October 17, 1977 seeking dismissal of appellants' complaint and entry of judgment in favor of appellees. Contemporaneously appellees filed a petition for a rule to show cause why the motion for order of sanction should not be granted, which the court issued returnable on November 7,1977. No answers to the rule or interrogatories having been filed, appellees, by letter dated November 23, 1977 notified appellants of their intention to appear in court and move the rule be made absolute on November 28, 1977. Subsequently, *527 the court entered an order dismissing appellants' complaint with prejudice and entering judgment for appellees. On December 30, 1977, appellants filed a petition to open or to strike the order dismissing their complaint. Appellees filed an answer thereto on January 13, 1978. The case was listed for argument on September 5, 1978, and, upon the motion of appellants, the court granted a continuance until the October 2, 1978 argument court. **26 On October 2, 1978, appellants again moved for a continuance; the motion was granted, over appellee's objection, with the proviso that the case be argued on October 30, 1978 or the petition would be dismissed. Contrary to Berks County local rules of court fFN41, Sections 85, 87 and 88, appellants did not file with the court or serve on opposing counsel a copy of the argument brief prior to the October 30, 1978 argument court date, but for the first time presented a brief of argument to the court and to appellees in the courtroom on October 30, 1978, rendering it impossible for appellees to file a reply brief and to have the case argued on that day in compliance with the local rules of court and court order of October 2, 1978. On that same day, the lower court, upon appellees' motion, dismissed appellants' petition to open or to strike the judgment. This appeal followed. Page 2 FN4. The local rules of court pertaining to arguments provide, as follows: "Section 85. The party having the burden shall, at least ten (10) days before argument, serve a copy of brief of argument on the opposing counsel and shall file two (2) copies thereof with the Prothonotary or Clerk of Court as applicable, for distribution to the court. . . "Section 87. The opposing party shall, at least four (4) days before argument, except in criminal cases at least three (3) days before argument, serve a copy of brief of argument on the opposing counsel and file two (2) copies thereof with the Prothonotary or Clerk of Court as applicable, for distribution to the court . . . "Section 88. Unless otherwise ordered by the court, filing of briefs and oral arguments shall be required in all cases. . . ." Four issues are presented for our review. At the threshold of our consideration is appellants' contention that the lower court abused its discretion by dismissing appellants' *528 petition to open and to strike judgment for failure to comply with the order of court of October 2, 1978, and having failed to comply with the local rules of court by failing to file a timely argument brief. Counsel argues that the lower court's order dismissing the petition on the basis of a technical, non-prejudicial error was a harsh and unnecessary ruling contrary to Pa.R.C.P. 126, which specifically provides: "The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties." Nevertheless, the Pennsylvania Rules of Civil Procedure, promulgated for the orderly administration of justice, cannot be ignored but must be followed in order to insure the smooth and efficient operation of the judicial process. In this case, we are of the opinion that appellants' counsel has flagrantly and repeatedly violated the rules of court by constant delay and inaction. fFN51 As has already been mentioned, counsel failed to respond to interrogatories and a rule to show cause why an order of sanction should not be granted. Thereafter counsel failed to file her argument brief (Q 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. . . .' 419 A.2d 24 275 Pa.Super. 524,419 A.2d 24 (Cite as: 275 Pa.Super. 524, 419 A.2d 24) until the date of argument, contrary to the court's order and the local rules. Counsel states in her appellate brief that she was unable to timely file her argument brief because of illness. To support this position, however, counsel should have made some movement towards protecting herself on the record. Counsel could have petitioned the *529 court for an amendment of the lower court order. Instead appellants were content to sit idly by until the date of argument, in contravention of the local rules, and then attempted to proceed with the argument on its merits. This failure to comport with the local rules, coupled with appellants' failure to respond **27 to the interrogatories and the rule to show cause amounts to a lack of prosecution. " 'The sheer number of cases and appeals make it imperative the rules be strictly enforced. Anything less would disrupt the already tenuous flow of trials and resulting appeals'''. Straff v. Nationwide Mutual Fire Ins. Co.. 230 Pa.Super. 403. 326 A.2d 586 (1974). Furthermore, this court is not disposed to correcting the errors of counsel when the record does not indicate any disposition on the part of counsel to take procedural avenues which were available to protect her case. Moreover, counsel, after her unexplained failure to move forward, may not now argue that the court should overlook these procedural errors in the interest of justice. The principles of fairness dictates a fmal resolution of this case, and hence, we fmd that the lower court did not abuse its discretion. FN5. The docket entries display a lack of diligent prosecution of appellants' case from the onset. The action was instituted by the filing of a writ of summons one day before the expiration of the statute of limitations. The writs were not served until after the statute had run. Appellees ruled the appellants to file a complaint on June 23, 1976 but none was filed until April 7, 1977, more than nine months later. We suspect that this is the type of situation that motivated our Supreme Court to adopt the "240 day rule" for civil cases. See Chief Justice Eagen's order entered November 19, 1979 to No. 161, E.D. Misc. Docket 1979. Accordingly, we need not address appellants' remaining contentions. AffIrmed. DOWLING J., files a dissenting opinion. Page 3 DOWLING, Judge, dissenting. This case involves the death of a 16 year old cyclist allegedly as a result of the negligent oper!ition of a tractor trailer. To dismiss with prejudice such an action for what is basically a failure to respond to form interrogatories seems unnecessarily harsh and misdirected. It is the lawyer who should be punished for his disregard of the rules, not his innocent client. Why throw the baby out with the bathwater. Pa.Super., 1980. Jones v. Trexler 275 Pa.Super. 524,419 A.2d 24 END OF DOCUMENT ~ 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. . VERIFICATION I, Thomas S. Diehl, hereby verify that the statements made in the foregoing document are true and correct to the best of my personal knowledge, information and belief. Furthermore I verify this Answer subject to the penalties of 18 Pa. C.S. Sec. 4904 related to unsworn falsifications to authorities. Dated: August 31, 2006 c:L>- i/J) Thomas S. Die@. CERTIFICATE OF SERVICE I, Thomas S. Diehl, state that the attached documents were mailed to the following individual(s) by first class mail, postage prepaid on August 31,2006 and addressed to: Date: August 31, 2006 Charles B. Calkins, Esq. 110 South Northern Way York, PA 17402 (717) 757-7602 cL >yJi Thomas S. Diehl ...'..;;. o c :Z~: '" c.:::) c,,::. C:',---., ,~ ,.~ '"11 --4 I fT- *..~:.:.' W ,: c"'- (-I C.: <' . , . R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. Ud/b/a SPRINT YELLOW PAGES, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. Civil Action - Law No. 05-3031 Jury Trial Demanded THOMAS S. DIEHL, Defendant. CERTIFICATE OF SERVICE AND NOW, this ~~f August, 2006,1, David E. CookiEsquire,a mernberof the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, Esquires, hereby certify that I have, this date, served a copy of Plaintiffs' Answers to Defendant's Interrogatories and Response to Request for Production of Documents, by United States Mail, addressed to the party or attomey of record as follows: Thomas S. Diehl PO Box 613 Harrisburg, PA 17108 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS c- BY ~ 7-~ DAVID E. COOK, ESQUIRE Supreme Court 1.0. 78318 Attorney for Plaintiff 110 South Northern Way York, PA 17402 (717) 757-7602 () ~ "'" "T~{i- rLr, 2:' (j:' -<" fs ,':'~: I~ ~~.~; :-:-..i -( "'" = = C"' (/) rr; " I en o " ~.,., rnl-.: -orn ~~~t? '-..,,1 "~5 (Ii :.~_)rn ~ .D .< """ -r;" - f'<> 0,) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA RH. Donnelley Publishing And Advertising, Inc. t/d/b/a Sprint Yellow Pages Plaintiff Civil Action - Law No. 05-3031 v. Thomas S. Diehl Defendant MOTION TO AMEND PETITION FOR CONTEMPT AND TO STRIKE PLAINTIFF'S OBJECTIONS TO DISCOVERY Factual Backe:round 1. On August 15, 2006 this Court entered an order directing Plaintiff to answer fully Defendant's first set of Request for Interrogatories and Request for Production of Documents on or before August 30, 2006. Order attached hereto as "Exhibit 1". 2. On August 31, 2006 Defendant filed a Petition for Contempt and Sanctions under P.RC.P. 4019 as he had not yet received discovery from the Plaintiff. 3. The further factual averments of this Motion are set forth in the above referenced Petition for Contempt and Sanctions under P.RC.P. 4019 but for the additions set forth below. 4. Later on August 31, 2006 the Defendant learned of Plaintiffs email sent on August 30, 2006 at 3:39 pm, in which the Plaintiffs counsel had stated the answers to Defendant's first set of Request for Interrogatories and Production of Interrogatories were mailed on August 30, 2006. 5. Defendant received Plaintiffs Answers to Interrogatories and Response to the Request for Production for Documents Propounded bv Defendant (First Set) on September 1, 2006. 6. Upon receiving answers Defendant learned that Plaintiff had objections to some of the interrogatories. 7. Plaintiff objected to thirteen (13) of Defendant's twenty-three (23) interrogatories. 8. Plaintiff had not previously expressed any objections to Defendant's interrogatories. Application of Rules of Civil Procedure and relevant case law 9. Rule 4006(a)(2) states in pertinent part, "The answering party shall serve a copy of the answers, and objections if any, within thirty days after the service of the interrogatories. " 10. Case law supports that the time for servmg answers may be extended, but objections generally must be made or waived within thirty (30) days of service. Lane v. Hartford Accident and Indemnity Co., 6 Pa. D.&C. 4th 537 (1990); Bonk v. Block, 12 Pa. D.&C. 3d 749 (1980). Attached hereto as "Exhibit Cl" and "Exhibit C2" 11. In this instant matter, the Plaintiff had not raised any objections to interrogatories prior to: a. Defendant's Motion to Compel Answers to Interrogatories (July 10,2006) b. Court Order directing the Plaintiff to respond (July 18,2006) c. Defendant's Motion to Make Rule Absolute (August 10,2006) d. Court Order directing the Plaintiff to answer fully (August 15,2006). 12. Case law is clear that objections raised after the party seeking discovery files an action to compel are untimely and deemed waived. See Mountain View Condominium Owners' Assoc. v. Mountain View Assoc. 9 Pa. D.&C. 4th 81 (1991); Burda v. Cesare, 50 Pa. D.&C. 3d 354 (1988), affirmed 421 Pa. Super 645,613 A.2d 26 (1992). Attached hereto as "Exhibit C3" and "Exhibit C4". 13. Although Defendant is aware of a few exceptions in which a party has been permitted to file objections beyond thirty (30) days of service of a request for discovery, he is not aware of any instance, as in this case, in which a party was permitted to lodge objections after a petition to compel discovery had been filed and a corresponding Order of Court directing compliance had been issued. 14. To entertain Plaintiffs objections at this time would vitiate this Court's order of August 15, 2006 and discourage the proper practice of parties considering objections between themselves prior to seeking intervention by the Court as, "How can one party examine objections to its discovery (and possibly reconsider the propriety thereof in the face of such objections) before coming into court if the other party is not even required to make such objections known?" Mountain View, supra. WHEREFORE the Defendant requests in the alternative of his August 31, 2006 petition that this honorable Court strike the Plaintiffs recent objections to discovery and find the Plaintiff in contempt of its Order of August 15, 2006 for not having answered fully the Defendant's first set of Interrogatories and Request for Production of Documents on or before August 30, 2006. Upon such finding, the Defendant requests the Court to impose sanctions upon the Plaintiff in the form of a fine for each day of its continued contemptuous behavior in an amount deemed appropriate by the Court until the Plaintiff so complies, OR in the alternative, such other relief as the Court may deem appropriate. ~IY Submitted, Tbom~s~~ P.O. Box 613 Harrisburg, PA 17108 (717) 241-4287 yourfriendtomdiehl@yahoo.com "\ ) . R. H. DONNELLY PUBLISHING : IN THE COURT OF COMMON PLEAS OF AND ADVERTISING, INC. : CUMBERLAND COUNTY. PENNSYLVANIA t1d/b/a SPRING YELLOW PAGES Plaintiff V. : NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 151h day of August. 2006. upon motion of Defendant, Thomas S. Diehl, and the Plaintiff having failed to answer the Rule issued July 18, 2006, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff. R. H. Donnelley Publishing and Advertising, Inc.. shall answer fully Defendanfs first set of Interrogatories and Request for Production of Documents on or before August 30, 2006. Failure to answer will result in the imposition of sanctions. By the Court, '\\ 1 M. L. Ebert, Jr.. . J. Charles B. Calkins, Esquire Attomey for Plaintiff Thomas S. Diehl Defendant bas YRW... . . -,~> .~__. i~T FROM ~ I.L-",~ f ...." . .. .. .-vtaul. 'IWreunro _.. '- ~. _G. . said '~.~.l Carll......... , . . -'J-~ei... ""'~~ C><:yg " E)(h;ha I" V\eStlaw: 6 Pa. D. & CAth 537 1990 WL 300276 (Pa.Com.PI.), 6 Pa. D. & CAth 537 ~ Court of Common Pleas of Pennsylvania, Dauphin County . Lane v. Hartford Accident and Indemnity Co. No. 104-8-1989. July 12, 1990 *1 **537 Motion to compel. West Headnotes Pretrial Procedure ~252 307 Ak252 Most Cited Cases Pretrial Procedure ~ 403 307 Ak403 Most Cited Cases Pa.R.C.P. 4006(b)(2)(42 Pa.C.S.A.) and 4009(b)(2), (42 Pa.C.S.A.), which require the filing of objections to the interrogatories and a request for production of documents within 30 days, are mandatory and the failure to timely object will result in the waiver of the objections. Ralph B. Pinskey, for plaintiffs. C. Kent Price, for defendant Hartford Accident and Indemnity Company. DOWLING, J. Can a party object to interrogatories or a request for documents after the 30- day period specified in the rules? The instant case concerns three discovery requests propounded by plaintiffs upon defendant Hartford Accident and Indemnity Company involving two separate requests for production of documents and a set of interrogatories. On October 20, 1989, plaintiffs' first request for production of documents was served on Hartford. On February 13, 1990, plaintiffs served a second **538 request for production of documents as well as a set of written interrogatories. No answers or objections were served with respect to this discovery until May 11, 1990. At that time defendant Hartford served responses to both requests for production in which it objected to portions of Page 1 each request. On May 18, 1990, defendant Hartford served objections to three interrogatories and promised to answer the rest of them, though this has not yet occurred. While many words in our wonderful language are ambiguous, it is difficult to ascribe an alternate meaning to the phrase "30 days" or to construe "shall" into "may." It is worth remembering that this seemingly small, modest word "shall" has, at times in the past, been the pivot upon which the hopes and dreams of whole empires have turned. Whether one considers MacArthur's ringingly famous promise of eventual triumph after the fall of the Philippines, "I shall return!", or Marshal Petain's equally determined assertion of national resolve, "line passeront pas" ("they shall not pass") as the Germans besieged Verdun in 1916,-1lliU this word has universally been regarded as a statement of the positive and the unequivocal, not the conditional or the variable. Even the greatest poet of our language made it the centerpiece of one of his most inspirational passages, at the conclusion of King John: FN 1. One could wish that the doughty Marshal had had the will and the courage to remember his own words 24 years later, when history so tragically repeated itself. "This England never did, nor never shall Lie at the proud foot of a conqueror But when it did first help to wound itself. Now these her princes are come home again, Come the three comers of the world in anns, **539 And we shall shock them. Nought shall make us rue, If England to itself do rest but true." *2 If any of the "shalls" in those three passages quoted above had been rendered by their original speakers as "may," one might fmd oneself in a world whe~e Manila was governed from Tokyo, Paris from Berlm, and Shakespeare's beloved "sceptered isle" from either the Elysees Palace or the Alhambra. Since we have no stomach for such a wholesale rewriting of history, we shall hew to the view that (0 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. \' II E ,c hi b:f- Cl 6 Pa. D. & CAth 537 1990 WL 300276 (Pa.Com.PI.), 6 Pa. D. & CAth 537 "shall" is a word of command, not of suggestion. There would likewise seem to be no ambiguity about the meaning of the term "30 days." fFN21 If there were a dispute about whether this phrase meant "30 calendar days" or "30 business days," we would consult the written instruments under review for clarification; otherwise, one must rely upon the traditional and statutory construction which holds that "30 days" from a given date means 30 calendar days from the date certain; unless the 30th day falls on a weekend or holiday, in which case the next business day is counted as the fmal day. Nor, certainly, does an allotment of 30 days in which to perform a certain function mean a minimum of 30 days in which to do it. If this were so, a person sentenced to a 30-day jail sentence could be kept incarcerated for 20 years, on the grounds that 20 years encompasses the period of 30 days. Yet that is what defendant, in the instant case, seems to be suggesting when he says that it was permissible for **540 him to answer the plaintiffs requests for production after 30 days had passed. FN2. One of the oldest, and most bitterly true, witticisms about America's treatment of its Indian population holds that, when a copy of the first treaty between white men and Indians was discovered, it was found to declare that the Indians would have the right to keep their lands for as long as the sun shines, the wind blows, and the rivers run -- or 30 days, whichever comes first. Defendant's position is that, since the rules do not address the issue of the failure to serve objections within the 30~day period, this requirement merely establishes the minimum time that one is required to wait before moving for sanctions; that is, passage of the 30 days "triggers" the parties' right to move to compel. It points to rules 1026 and 237.1, the former of which provides that every pleading subsequent to the complaint "shall" be filed within 20 days after service of the preceding pleading; yet this does not automatically allow for a default judgment. Once the 20 days has expired, one must go further and send notice of intention to take such a judgment as provided by rule 237.1. The "double dip" may be called for in an instance where a default judgment is at stake, but here we are only concerned with discovery. This reasoning might be relevant to the failure to answer interrogatories or produce documents, but it fails in its application to objections to such requests. The party seeking the information must have a remedy if it is not Page 2 forthcoming, but this is quite different from the question of the propriety of the data. If no objections are timely filed, then the requester's way is clear, and his only concern need be with the time in which he is going to be accommodated. We feel that any other interpretation renders the specific time period mere surplusage with respect to the duty to object. *3 Defendant relies on two lower court decisions, Hall v. Sears Roebuck & Co.. 14 D. & C.3d 231 (1980), and Northampton Borough Municipal Authority v. Remsco Associates Inc.. 22 Pa. D. & C.3d 541 (1980. In Hall, the decisions relied upon by the **541 court dealt with the previous rule, which concluded that the language of rule 4005 -- providing that a party may file objections within 10 days -- was permissive. Relevant at this point are the words of our Supreme Court in Masland v. Bachman. 473 Pa. 280. 289. 374 A.2d 517. 521 (1977): "A change in the language of a statute ordinarily indicates a change of legislative intent. In any event, the decisions are not binding on this court; we are not persuaded by their reasoning; and we decline to follow them." The Supreme Court in Nissley v. Pennsylvania Rail Road Company. 435 Pa. 503. 259 A.2d 451 (969), notwithstanding the apparent permissive nature of the old discovery rules, held that there was a waiver of objections to interrogatories when they were not filed and served until five days before trial. The court observed that "this case aptly demonstrates that the integrity of the discovery rules can be preserved only if the rules are taken more seriously than they were in the lower court. The rule requiring a party to object to an improper interrogatory within 10 days was included in the Rules of Civil Procedure for a purpose; that purpose would be defeated if we accept the lower court's apparent conclusion that the plaintiffs failure to follow this rule was not crucial under the facts of this case." In Aetna Life Insurance Co. v. Green. 116 Ga. App. 783. 159 S.E.2d 87.90- 1 (967), a Georgia Court of Appeals, interpreting the same language, said: "Code Ann. ~ 38-2108 is the same as rule 33 of the Federal Rules of Civil Procedure and both contain the identical statement that '[ w )ithin (10) days after service of interrogatories a party may serve written **542 objections thereto....' Accordingly, we look to the construction placed on the federal rule as persuasive in applying the identical Georgia rule. '[A] party cannot give an evasive answer to an interrogatory and on motion to require a proper answer raise an objection which should have been <0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 6 Pa. D. & CAth 537 1990 WL 300276 (pa.Com.PI.), 6 Pa. D. & CAth 537 raised by objection to the original interrogatory within 10 days after service thereof.' Moore's Manual of Federal Practice and Procedure, pp. 1154, 1155, ~ 15.04(8). Where a timely objection is not made to interrogatories, the right to object is waived. McKean v. Highway Truck Drivers and Helpers. Local 107. 28 F.R.D. 592 (D. Del. 1961). The permissiveness of language of this rule is simply that a party has a choice of answering the interrogatory or making an objection in the manner set forth in the rules, and objections to interrogatories may not be raised in any other manner. Thus, if written objections are not served within 10 days, there is a waiver of the right to object. Baxter v. Vick. 25 F.R.D. 229 (D.C. Pa. 1960). Also, see Moore's Federal Practice (2d ed.) Vol. 4, p. 2410 et. seq., par. 33.27. Having failed to raise the issue of relevancy in the proper manner and at the proper time in the lower court, the appellant will not be heard to complain as to such an issue in this court." *4 The introductory explanatory note to the Deposition and Discovery Rules states "[m]ore than 25 years of experience and the general acceptance of the philosophy of discovery justify bringing the Pennsylvania system into as close conformity as possible with the federal system." Clearly, under similar federal discovery procedures, if one does not timely file objections to discovery, those objections are waived. **543 In Shenker v. Sportelli. 83 F.R.D. 365. 366 (E.D. Pa. 1979), the court said that "the failure to abide by the discovery procedures outlined in the Rules thwarts the policy of the rules as expressed in Fed.R.C.P. I, that seeks the ~ust, speedy and inexpensive determination of every action'" rFN31 and, in Philpot v. Philco-Ford Corp.. 63 F.R.D. 672. 675 (E.D. Pa. 1974) the court warned: FN3. Pa.R.C.P. 126 provides in relevant part that "[t]he rules shall be liberally construed to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applied." "The provisions governing discovery under the Federal Rules of Civil Procedure are more than mere procedural guidelines to be consulted at the pleasure of a party to a federal civil suit. The language of these rules is carefully drafted and specific in its terms in order that they 'secure the just, speedy and inexpensive determination of every action.' [citing Fed.R.C.P. 21] Plaintiffs have chosen a most reckless course by failing to acquaint themselves with, and by failing to comply with, the clear, precise and central Page 3 provisions of these rules." Another federal court has said: "Regardless of how outrageous or how embarrassing the questions may be, the defendants have long since lost their opportunity to object to the questions. If they feel that the questions are unfair they have no one to blame but themselves for being required to answer them now. If discovery rules are to have any effect or meaning, the failure to serve such objections within the time prescribed ... should be considered a waiver of such objections." Davis v. Romnev. 53 F.R.D. 247. 248 (E.D. Pa. 1971). (citation omitted) **544 See also, Krewson v. City of Quincy. 120 F.R.D. 6. 7 (D. Mass. 1988), and cases cited therein. "If a party fails to file timely objections to document requests, such a failure constitutes a waiver of any objections which a party might have to the requests...' Any other result would ... completely frustrate the time limits contained in the federal rules and give a license to litigants to ignore the time limits for discovery without any adverse consequences...." (citations omitted) In Davis v. Romney. supra. at 247 the court said that, "The plaintiffs' patience in agreeing to wait for answers beyond the 45-day period cannot be considered as a stay or an extension of the time for filing objections." (Citing Sturdevant v. Sears, Roebuck & Co., 321 F.R.D. 426 (W.D. Mo. 1963).) *5 And, in Perry v. Golub. 74 F.R.D. 360. 363 (N.D. Ala. 1976). where a protective order was sought after the date required for production of documents, the court held: "Similarly, the defendants' protective order motion does not alter the situation since rule 34 required the point be raised by timely objections. As Professor Moore says, 'The party served with the request must respond to it within the time limits set forth in the rule, or object, stating the reasons for the objection.' 4A Moore's Federal Practice ~ 3702, page 36-7 (2d ed. 1975)." Accordingly, we enter the following ORDER And now, July 12, 1990, defendant Hartford Accident and Indemnity Company is directed to answer plaintiffs' interrogatories and requests for production of documents within 15 days or suffer appropriate sanctions.o END OF DOCUMENT ~ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. ~ 12 Pa. D. & C.3d 749 12 Pa. D. & C.3d 749,1980 WL 966 (pa.Arb.P.H.C.) C Pennsylvania Arbitration Panel for Health Care, Philadelphia County. Bonk v. Block No. M78-0968. February 22, 1980 **1 *750 Arbitration Panels for Health Care, West Headnotes Health ~806 198Hk806 Most Cited Cases (Fonnerly 299k17.5 Physicians and Surgeons) Arbitration Panels for Health Care under the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, as amended (40 P.S. ~ 1301.502), lack subject matter jurisdiction over a counterclaim by a defendant for his fee. Health ~806 1 98Hk806 Most Cited Cases (Fonnerly 299k 17.5 Physicians and Surgeons) An answer to a motion for sanctions filed by mail with the Arbitration Panels for Health Care 14 days after the filing of the motion and two days after an order was entered thereupon should be considered by the panels and the order vacated. Pretrial Procedure ~252 307 Ak252 Most Cited Cases Under Pa.R.C.P. 4006(a)(2)(42 Pa.C.S.A.) all objections to interrogatories shaU be filed within 30 days from the service thereof; objections not timely filed must be deemed waived. opinion by Frankston, Administrator. On October 24, 1979, defendants filed a motion for sanctions based upon plaintiffs' failure to respond to expert witness interrogatories which were served on or about May 25, 1979. On November 5, 1979, we entered an order granting plaintiffs 30 days to answer the interrogatories and deeming aU objections to the interrogatories waived inasmuch as none were filed within 30 days of service. We further provided that should plaintiffs fail to comply with the order, any defendant could petition that a judgment of non pros Page 1 be entered in his favor. On November 7, 1979, plaintiffs' answer and new matter to motion for sanctions was received. Plaintiffs recited that they had encountered difficulty in retaining an expert witness to testify on their behalf and requested 180 days' additional time to secure an expert witness. On November 13, 1979, plaintiffs infonnaUy requested reconsideration of our November 5, 1979 order in light of their answer and new matter, asked that the answer and new matter be filed nunc pro tunc, and challenged our ruling that all objections had been waived, citing DeMontagne v. Albert Einstein Medical Center. 1 Pa. D. & C.3d 604 (Phila. Co. 1977). On December 5, 1979, plaintiffs filed answers to the interrogatories, stating in essence that no expert had yet been retained and that upon retention of an expert, the answers would be amended. Further, plaintiffs filed objections to interrogatory 6, which requested aU cases in which *751 any proposed trial expert had testified in the past five years, and to interrogatory 7, which sought the names of aU experts consulted by plaintiffs who were not expected to testi fy. In response to plaintiffs' answers and objections to the interrogatories, defendants filed petitions for entry of judgment of non pros on January 7, 1980 and January 10, 1980, contending that plaintiffs violated our order of November 5, 1979, by filing objections and asserting that because no medical expert has yet been retained, defendants are entitled to entry of judgment of non pros. Plaintiffs answered these petitions on January 29, 1980, contending that the answers given were as complete and accurate as possible under the circumstances and that they cannot identify an expert without access to certain medical records which plaintiffs requested on December 10, 1979, to which request defendant hospital objected on January 7, 1980, on grounds that the request was burdensome and proceduraUy untimely. **2 In conjunction with this attempt to secure medical records, plaintiffs included new matter in their answer to defendant-hospital's petition for non pros consisting of the following motions: (1) motion to compel fuU and complete answers to interrogatories (seeking more specific answers to interrogatories served upon the hospital on or about February 1, 1979); (2) motion to strike objections @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. " E )(~;~;+ c..~" 12 Pa. D. & C.3d 749 12 Pa. D. & C.3d 749, 1980 WL 966 (Pa.Arb.P.H.C.) (seeking to compel production of the medical records requested on December 10, 1979); and (3) motion for sanctions (seeking counsel fees in connection with the answer to the petition for judgment of non pros). Defendant-hospital responded to these motions by filing an answer on February 11, 1980. *752 To further complicate this procedural morass, on December 28, 1979, defendant Block filed a counterclaim against plaintiffs for payment of his fee. Plaintiffs filed preliminary objections to the counterclaim asserting we lack subject matter jurisdiction over such matters. To dispose of this matter summarily, we merely note that plaintiffs' position is correct. See Loverdi v. Mercy Catholic Medical Center, M77-0383 (opinion of the administrator dated November 1, 1978). We shall deal with the remaining motions in the order in which we have recounted them. Initially, we note that the instant action was begun over two years ago. The Supreme Court, by order dated November 19, 1979, regarding prompt certification for trial of civil cases, has imposed a 240-day time frame within which all civil cases before the courts must be certified ready for trial. See Vol. 9, Pennsylvania Bulletin, page 3936, published December 1, 1979. Along this line, we recently adopted a one-year rule for filing of Certificates of Readiness effective February 12, 1980. See 37 Pa. Code ~ 171.123, adopted at Vol. 10, Pennsylvania Bulletin, page 690, published February 9, 1980. The new rules also provide, in effect, that all time limits for completion of discovery previously imposed are removed. See 37 Pa. Code & 171.33 (10 Pa.B. 692). Should a party wish to terminate discovery, he must now follow the procedure set forth in 37 Pa. Code & 171.33 and & 171.71 (10 Pa.B. 692). It is our intention to strictly enforce these rules and require prompt disposition of all claims filed before us. Nevertheless, inasmuch as plaintiffs' answer to the motion for sanctions was filed just *753 two days after entry of our order and undoubtedly mailed prior to receipt of it, we feel the order should be vacated and the motion should be considered in light of plaintiffs' answer and new matter. Accordingly, defendants' petitions for entry of judgment of non pros must be dismissed without prejudice. The DeMontagne case, upon which plaintiffs rely in filing objections to the expert interrogatories, is of no moment to our disposition of the instant issues since it predated the present rules of discovery. The rules Page 2 now provide that all objections to interrogatories shall be filed within 30 days from service thereof: Pa.R.C.P. 4006(a)(2). Inasmuch as plaintiffs' objections were not timely filed, they must be deemed waived. Accordingly, interrogatory 7 shall be answered within ten days from the date this opinion and accompanying order are certified from the record or judgment of non pros will be entered upon petition of any defendant. **3 While we are loath to compel disclosure of names and addresses of experts specially consulted, but not expected to testify, particularly in view of the express language of Pa.R.C.P. 4003.5(a)(3) protecting the names of such experts from discovery, we note that not only did plaintiffs fail to file their objection when the question was propounded, they also failed to raise it in their answer to the motion for sanctions. In fact, paragraph 5 of the new matter contained in their answers avers that defense counsel were notified that the expert interrogatories would be answered. As to the remaining interrogatories, plaintiffs requested an extension of 180 days for supplying defendants with the names of their proposed experts. At the time the motion for sanctions was filed, the *754 action was nearly two years old--twice the time within which a certificate of readiness must now be filed after instituting suit. In addition, the recent flurry of motions and petitions has caused an additional three months of delay. However, because we recognize that in some instances it may be extremely difficult for a plaintiff to retain an expert witness in an action brought against a fellow physician, and in view of plaintiffs' averment that competent physicians, who are not willing to testify, have advised them that defendants were negligent, we are willing to accord plaintiff additional time to conscientiously seek a trial expert. Therefore, plaintiffs are directed to fully and completely respond to interrogatories 1, 2, 3, 4, 5, and 6 within 90 days from the date this opinion and accompanying order are certified from the record or be barred from introducing expert testimony at the arbitration hearing in this case upon petition of a defendant. As to plaintiffs' motion to compel, we note that no reasons have been assigned to explain plaintiffs' contention that the hospital's answers are incomplete. Further, the hospital filed these answers on March 12, 1979. We find it odd that plaintiffs' dissatisfaction with the answers took nearly a year to surface, and then only in response to petitions which would have <0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 12 Pa. D. & C.3d 749 12 Pa. D. & C.3d 749, 1980 WL 966 (Pa.Arb.P.H.C.) Page 3 brought the action to an end. Accordingly, the motion to compel is denied. By the same token, defendant hospital's objections to plaintiffs' request for production of documents contain no concrete reasons why such records are not discoverable. The fact that a petition seeking judgment of non pros is pending has no effect upon other pretrial matters. For these reasons, *755 defendant hospital shall, within ten days from the date this opinion and accompanying order are certified from the record, supply the requested documents or suffer imposition of appropriate sanctions upon petition of plaintiffs. Plaintiffs' motion for sanctions, which seeks counsel fees in connection with answering defendants' petitions, is denied. Accordingly, we enter the following ORDER And now, February 22, 1980, is is hereby ordered and decreed that the instant action shall proceed as set forth in the foregoing opinion. END OF DOCUMENT ~ 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. W?8f1aw: 9 Pa. D. & CAth 81 1991 WL 299494 (Pa.Com.Pl.), 9 Pa. D. & CAth 81 c Court of Common Pleas of Pennsylvania, Chester County . Mountain View Condominium Owners' Association v. Mountain View Associates No. 88-01863. January 8, 1991 *1 **81 Motion for sanctions. West Headnotes Pretrial Procedure ~41 307 Ak41 Most Cited Cases Pretrial Procedure ~252 307 Ak252 Most Cited Cases An objection to interrogatories or other discovery under Pa.R.C.P. 4006(a)(2)(42 Pa.C.S.A.) or an application for protective order under Pa.R.C.P. 4012 (~2 Pa.C.S.A.) 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 the objection or the grounds upon which the protective order is sought will be waived. Steven L. Sugarman, for plaintiff. William 1. Taylor, for defendant. SHENKIN,1. In this case we are faced with the all too common ~i~~tion 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 ans~ers 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 Page 1 requesting responses and advising that if counsel for defendants **82 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 plaintiffs 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 co~nsel 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. *2 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 rather the fai~ure 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 pho~e call, le~ 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 ~ 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 ~ 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. " E"h;Ai~ C3 II 9 Pa. D. & C.4th 81 1991 WL 299494 (Pa.Com.Pl.), 9 Pa. D. & C.4th 81 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. Pennsvlvania Railroad Comoany. 435 Pa. 503. 510.259 A.2d 451. 455 (1969); lJ. White Inc. v. Bucklev and Comoanv Inc.. 65 Pa. D. & C.2d 794 (1974); Bonk v. Block. 12 Pa. 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 had 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 & Comoanv. 14 Pa. 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 Page 2 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. *3 **85 In the Hall case, the court was concerned that it could fmd no basis for disregarding the protections ofPa.R.C.P. 4011 and ordering discovery of matters which it considered to be outside the scope ofthe discovery rules. We fmd 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 fmd 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 fmd that any interrogatory is required to be answered unless a timely objection thereto is lodged or protective order sought. Rights, slept on, are lost every day and we see nothing to be gained by encouraging dilatory and discourteous behavior. Discovery received is entitled to a response before the party proffering the discovery must seek the court's assistance. The decision in Hall v. Sears Roebuck & Company, supra, gives primacy to the protections of Pa.R.C.P. 4011 over the obligations of Pa.R.C.P. 4006(2) and the directive of Pa.R.C.P. 40 19(a)(2), and the court stated that its decision was consistent with most cases which considered the issue under the previous rules of discovery. However, all of the cases cited in Hall v. Sears Roebuck & Company, supra, were decided prior to the adoption of Pa.R.C.P. 40 19(a)(2). Also we note that under the previous rules, it was stated that a party may file objections within 10 days after service of the interrogatories; **86 the present rule states that objections shall be filed within 30 days. And the previous rules required a willful failure to respond before sanctions could be imposed; under the present rules sanctions may be imposed merely upon the failure to respond, whether willful or not (willfulness being only a factor to be considered in determining whether a sanction is to be imposed and, if it is, what sanction is appropriate). It is clear to us that the intention of Rule 40 19( a )(2) is to prevent just <<;) 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. 9 Pa. D. & CAth 81 1991 WL 299494 (Pa.Com.PI.), 9 Pa. D. & CAth 81 Page 3 the situation which occurred in this case. Otherwise the rule would be practically meaningless; its only effect would be to preclude a party from defending against a motion for sanctions on the basis that the discovery is objectionable when no objection had actually been filed or protective order applied for. Permitting objections to be lodged or protective orders to be applied for at so late a time (that is, after a motion for sanctions or other motion to enforce discovery has been filed) would vitiate Pa.R.C.P. 40 1 9(a)(2) but requiring such action before the court's assistance is invoked to enforce discovery rights gives effect and a proper balance both to those rules which limit the scope of discovery as well as to those rules requiring diligence in response to discovery requests received. Our ruling in this case does not diminish any limitation imposed upon the scope of discovery; it requires only that such limitations be raised in a timely fashion. Moreover, our ruling will encourage parties to make discovery disputes known to each other before the court becomes involved and will further the policy that parties ought to make a good-faith effort to resolve such disagreements before invoking the assistance of the court. How can one party examine objections to its discovery (and possibly reconsider the propriety thereof in the face of such objections) before coming **87 into court if the other party is not even required to make such objections known? *4 For the reasons set forth above, we enter the following ORDER And now, January 8, 1991, upon consideration of defendants' motion for sanctions, it is hereby ordered that plaintiff shall serve upon defendants' counsel full and complete answers to interrogatories numbers 1, 2, 6 through 58 inclusive, including all sub-parts thereof, 59(b) and (c), 60(b) and (c) and 61 through 71 inclusive, including all sub-parts thereof, of defendants' fIrst set of interrogatories addressed to plaintiff, and interrogatories numbers 1 through 9 inclusive of defendants' expert interrogatories directed to plaintiff, within 30 days of the date of this order, and shall produce to defendants' counsel for inspection and copying all documents in its possession or within its control responsive to defendants' fIrst request for the production of documents addressed to plaintiff within 30 days of the date of this order or suffer such sanctions as this court may thereafter deem appropriate. END OF DOCUMENT ~ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. ~ 50 Pa. D. & C.3d 354 50 Pa. D. & C.3d 354, 1988 WL 168507 (Pa.Com.PI.) ~ Court of Common Pleas of Pennsylvania, Luzerne County . Burda v. Cesare No. 252-C of1984. September 12, 1988 **1 *355 Motion to compel answers to interrogatories. West Headnotes Pretrial Procedure E?36.1 307 Ak36.1 Most Cited Cases (Formerly 307 Ak36) Discovery of fmancial information is not warranted where the record does not contain sufficient evidence in support of a claim for punitive damages. Pretrial Procedure ~305 307 Ak305 Most Cited Cases Pursuant to Pa.R.C.P. 4006(a)(2), (42 Pa.C.S.A.), a failure to file objections to interrogatories within 30 days after the service of the interrogatories is deemed a waiver of the right to object. Maurice Cardone, for plaintiff. Eugene D. Sperazza, for defendant Cesare. John 1. Aponick Jr., for defendant Bromain. TOOLE, 1. This matter comes before the ~ourt upon motion to compel answers to interrogatories. The court received briefs and heard oral argument. The issues are now ripe for resolution. Plaintiff commenced the instant medical malpractice action by summons on January 20, 1984. A complaint was filed on February 24, 1984, while defendants' answers and new matter were filed on Ap~i1 .3, 1984. A certificate of readiness was filed by plamtIff on July 6, 1987, and pretrial conference took place on September 8, 1987. On January 20, 1988, plaintiff filed a petition to show cause why plaintiff should not be granted leave to file an amended complaint. By order of Judge Page 1 Podcasy on April 5, 1988, plaintiff was granted leave to file an amended complaint which she did on April 18, 1988. The amended complaint included a claim for punitive damages. In addition to the complaint, plaintiff also served interrogatories on defendants on April 18, 1988. These interrogatories dealt exclusively with fmancial information relative to the punitive damages. *356 Objections were filed on behalf of Dr. Cesare on June 8, 1988; on June 17, 1988, plaintiff filed a motion to compel answers to discovery. Counsel for Dr. Bromain filed objections on June 23, 1988. Plaintiff argues that both defendants' objections are untimely and that they should be compelled to answer the interrogatories. Defendants argue that the fmancial information requested is irrelevant until evidence sufficient to support the allegations of willful, wanton, and outrageous conduct is established. ~ny inquiry on this subject must naturally begin ~ith the Rules of Civil Procedure governing discovery. The procedure for answering interrogatories is specifically governed by Pa.R.C.P. 4006, which provides: "The answering party shall file and serve a copy of the answers and objections, if any, within 30 days after the service of the interrogatories. The party submitting the interrogatories may move the court to dismiss an objection and direct that the interrogatory be answered." 42 Pa. C.S. ~ 4006(a)(2). ~e~endants argue that there is nothing to suggest that fallmg to file objections within 30 days waives those objections. While this may be true, it is also true that the rule does not prohibit a fmding that objections not made within 30 days are deemed waived. Numerous courts have so interpreted and this court believes that such a holding best promotes the spirit of the rules. **2 Our Supreme Court, in Nisslev v. Pa. R.R. Co.. 435 Pa. 503.259 A.2d 451 (969) would not allow a plaintiff to object to interrogatories outside the time limits prescribed by the rules. fFNll We recognize the arguments *357 that the factual difference between the Nissley case fFN21 and the case at bar raise limitations in applying Nissley as precedent. The spirit of the court's opinion, however, is equally <<;) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. ,. E )(hib..~ C. 't If 50 Pa. D. & C.3d 354 50 Pa. D. & C.3d 354, 1988 WL 168507 (Pa.Com.PI.) applicable here as it was there. "[T]he integrity of the discovery rules can be preserved only if the rules are taken more seriously than they were in the lower court. The rule requiring a party to object to an improper interrogatory within 1 0 days was included in the Rules of Civil Procedure for a purpose; . . ." Id. at 510. 259 A.2d at455. FNl. Nissley was governed by Pa.R.C.P. 4005 which allowed a 10- day time limit. Rule 4006 later expanded the allowance time to 30 days. FN2. Nissley involved plaintiffs agreeing to supply the requested information and then five days before trial objecting to the interrogatories. Similar reasoning has been employed by the courts of common pleas in other counties. In three separate cases, the court in Philadelphia County held that objections not timely filed in accordance with Pa.R.C.P. 4006(a)(2) are considered waived. See Bonk v. Block. 12 Pa. D. & C.3d 749 (1980); Frank v. PhiladelDhia. 38 Pa. D. & C.2d 487 (1965); Construction of Vine Street Extension. 18 Pa. D. & C.2d 115 (1959). The Montgomery County Court similarly found a waiver of objections to interrogatories not filed within the appropriate time limits in Hirsch v. Merzow. 72 Pa. D. & C.2d 736 (1975). Hirsch was based on the York County case of Toomey v. 1. Robert Bazley Inc.. 18 Pa. D. & C.2d 673 (1959). There, the court found the time limits "clear and unambiguous." An interpretation of the rules indicates that untimely objections to interrogatories must be considered waived. Rule 4006 is a mandatory provision and enforcement is left to judical discretion. See Vogel v. Berkley. 40 Pa. D. & C.3d 339 (1985). There are, of course, cases which do not find that *358 filing objections to interrogatories constitutes a waiver. In Hall v. Sears. Roebuck & Co.. 14 Pa. D. & C.3d 231 (1980), the court declined to hold that objections not filed within 30 days are waived. In DeMontagne v. Einstein Medical Center. 1 Pa. D. & C.3d 604 (1977), the court held that a party is not precluded from objecting to an offensive interrogatory at the time the other party moves for sanctions. The rationale of DeMontagne was argued here by defendants. More specifically, defendants contend that objections to interrogatories can be made at various stages of the judicial process outside the prescribed time limit of rule 4006. In support of this Page 2 position, cases have been submitted for the court's review. See e.g., SDragUe v. Walter. 23 Pa. D. & C.3d 638 (1982). (Motion for protective order in response to a motion to compel.) **3 After reviewing all of the cases presented we feel persuaded to and hold that in order to adhere to the spirit and letter of the Rules of Civil Procedure, all objections to interrogatories must be filed within the 30-day time period of rule 4006. A failure to respond within that time period will be deemed a waiver of the right to object and leaves a party with only one recourse, that is to fully, adequately and completely answer the interrogatories. Realizing that our decision is of first impression in this county, we have decided that the ruling should be applied prospectively from the date of this order. Our attention must now turn to the issue of punitive damages. The general principles of punitive damages are well enunciated in King v. Logue. 9 Pa. D. & C.3d 137 (1978). "In negligence actions the right to recover punitive damages is contingent upon proof that defendant's actions constituted *359 wanton misconduct or outrageous conduct done with reckless indifference to the interest of others." King at 140. It is established law that a plaintiff is entitled to discovery of a defendant's [mancial condition when punitive damages are claimed. Sprague v. Walter, supra; King v. Logue, supra; Judson v. Tracey Jr.. 25 Pa. D. & C.2d 97 (1961). The pivotal issue is when, that is, at what stage of the proceedings should a defendant's financial status be given to an opposing party . There is, of course, a dearth of cases with varying standards. This court has previously held averments in the complaint were not sufficient to allow [mancial discovery. Norbeth Corp. v. Rex Vending Co., 77 Luzerne Leg. Reg. 105 (1987). Yet that is not the situation presently before the court. Here, plaintiff has taken the deposition testimony of both defendants. She points to specific portions of those depositions in support of the claim for punitive damages. We have carefully reviewed the directed pages of depositions and we do not feel the present record contains sufficient evidence at this time to warrant discovery or disclosure of the [mancial information. Our decision in no way passes judgment on the validity of plaintiffs claim for punitive damages. Clearly, this is an issue which can be better addressed at some other stage of the proceedings. We also specifically note the possibility that discovery may be ~ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 50 Pa. D. & C.3d 354 50 Pa. D. & C.3d 354, 1988 WL 168507 (Pa.Com.PI.) Page 3 appropriate at a later date. At this time, however, the motion to compel will be denied. ORDER It is hereby ordered and decreed that the motion to compel is denied and dismissed without prejudice. END OF DOCUMENT ~ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. ~tlaw 613 A.2d 26 (Table) 421 Pa.Super. 645, 613 A.2d26 (Table) (Cite as: 421 Pa.Super. 645, 613 A.2d 26 (Table)) Page I H (The decision of the Court is referenced in the Atlantic Reporter in a table captioned "Superior Court of Pennsylvania Decisions Without Published Opinions". Reports of cases decided by the Superior Court in which the order, decree, judgment or decision of the court below w_as. affIrmed or otherwise disposed of without opinion or without extended opinion. Beginning with the March 1979 session, the Superior Court adopted a practice of afftrming per curiam some cases without a published opinion. However, in most cases a memorandum opinion has been prepared and filed. Copies of these memorandum opinions may be obtained at the clerk's offtce of the Superior. Court in the district in which the case arose. These memorandum opinions cannot be considered as precedent, nor can they be cited for any purpose, except when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel and the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum is relied upon, a copy of it must be furnished to the other party and to the Court. (Pa.Super.Ct.R.65.37.) Superior Court of Pennsylvania. Burda v. Cesare FN4 NO.OI993PHL91 May 01, 1992 Appeal From: 252-C of 1984 (Luzerne) Affirmed FN4. Petitions for reargument denied July 13, 1992 Pa.Super. 1992. Burda v. Cesare 421 Pa.Super. 645,613 A.2d 26 (Table) END OF DOCUMENT <<;) 2006 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. VERIFICATION I, Thomas S. Diehl, hereby verify that the statements made in the foregoing document are true and correct to the best of my personal knowledge, information and belief. Furthermore I verify this Answer subject to the penalties of 18 Pa. C.S. Sec. 4904 related to unsworn falsifications to authorities. Dated: September 18, 2006 ~ ~ j;>JJ Thomas S. Diehl CERTIFICATE OF SERVICE I, Thomas S. Diehl, state that the attached documents were mailed to the following individual( s) by first class mail, postage prepaid on August 31, 2006 and addressed to: Charles B. Calkins, Esq. 110 South Northern Way York, PA 17402 (717) 757-7602 Date: September 18, 2006 ~~. j/J) Thomas S. Dieril l-_"\ r") en C) -'." C) R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. tld/b/a SPRINT YELLOW PAGES, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. Civil Action - Law No. 05.3031 Jury Trial Demanded THOMAS S. DIEHL, Defendant. PLAINTIFF'S RESPONSE TO DEFENDANT'S PETITION FOR CONTEMPT AND SANCTIONS UNDER PA.R.C.P. 4019 AND NOW, comes Plaintiff, R.H. Donnelly, by their counsel, David E. Cook, Esquire and Griffith, Strickler, Lerman, Solymos & Calkins and states the following in opposition to Defendant's Petition for Contempt and Sanctions: 1) Admitted. 2) Admitted in part denied in part. It is admitted that Plaintiffs filed a petition to have the matter scheduled for arbitration. The arbitration hearing, which at the time of Defendant's Petition for Contempt and Sanctions, was scheduled for September 13, 2006. The hearing has been rescheduled to October 25, 2006. All other allegations in this paragraph are denied. 3) It is admitted that Plaintiff did not respond to the Interrogatories and Request for Production of Documents within thirty (30) days. 4) Admitted. 5) Admitted. 6) Admitted. 7) Admitted. 8) Admitted. 9) The Order of Court speaks for itself and no response is necessary. Should a response be deemed necessary, the allegations contained in this paragraph are denied. 10) Admitted. 11) Admitted. 12) The Order of Court speaks for itself and no response is necessary. 13) This paragraph is argumentative in nature and as such is denied. It is admitted, however, that as of August 15, 2006, Plaintiff had not responded to Defendant's discovery request. It is denied that Plaintiff has failed to comply with the August 15, 2006 Order of this Honorable Court. 14) Admitted in part and denied in part. It is admitted that at the time Defendant filed the instant Petition the arbitration hearing was quickly approaching. At the present time, however, the arbitration hearing has been postponed and is rescheduled to October 25, 2006. Moreover, Plaintiff has provided discovery to Defendant and will also be providing supplemental answers to the interrogatories as well as a supplemental response to the request for production of documents. (A true and correct copy of the Certificate of Service for the Plaintiff's Answers to Defendant's Interrogatories and Response to Request for Production of Documents is attached hereto as Exhibit 1). 15) Plaintiff is without sufficient information and/or belief to form a response to Defendant's claim of prejudice. As a result, this allegation is denied. Moreover, as indicated in Paragraph 14, Plaintiff has provided discovery and the hearing has been rescheduled. 16) The rule speaks for itself and no response is necessary. 17) This paragraph contains legal argument and conclusions of law to which no response is required. Should a response be required, the allegations are denied. 18) This paragraph contains legal argument and conclusions of law to which no response is required. Should a response be required, the allegations are denied. 19) This paragraph contains legal argument and conclusions of law to which no response is required. Should a response be required, the allegations are denied. As discovery has been provided, any motion and/or argument is moot. Finally, as discovery has been provided, and the hearing rescheduled, the harsh sanction of exclusion of evidence and/or dismissal would be inappropriate. 20) This paragraph contains legal argument and conclusions of law to which no response is required. Should a response be required, the allegations are denied. By way of further response, Plaintiff hereby incorporates its response in Paragraph 19 as if set forth at length. 21) This paragraph contains legal argument and conclusions of law to which no response is required. Should a response be required, the allegations are denied. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Motion as Plaintiff has complied with Defendant's request for discovery and Defendant will not be prejudiced as the arbitration hearing has been rescheduled. GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS By: ~ ~~ DAVID E. COOK, ESQUIRE Supreme Court I.D. 78318 Attorney for Plaintiff 110 South Northern Way York, PA 17402 (717) 757-7602 ~ DA TED: I.!:L day of September, 2006 R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. tld/b/a SPRINT YELLOW PAGES, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. Civil Action - Law No. 05-3031 Jury Trial Demanded (~) (.' "' r-.'::' ,-'-', .' -", oJ :'::J I THOMAS S. DIEHL, Defendant. -,I i <--' , - ~', ., CERTIFICATE OF SERVICE ':. ~~~ AND NOW, this ~/~f August, 2006, I, David E. Cook, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, Esquires, hereby certify that I have, this date, served a copy of Plaintiffs' Answers to Defendant's Interrogatories and Response to Request for Production of Documents, by United States Mail, addressed to the party or attorney of record as follows: Thomas S. Diehl PO Box 613 Harrisburg, PA 17108 GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS BY S- ~ J--~~ DAVID E. COOK, ESQUIRE Supreme Court J.D. 78318 Attorney for Plaintiff 110 South Northern Way York, PA 17402 (717) 757-7602 IT R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. tld/b/a SPRINT YELLOW PAGES, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. Civil Action - Law No. 05-3031 Jury Trial Demanded THOMAS S. DIEHL, Defendant. CERTIFICATE OF SERVICE AND NOW, this #r--of September, 2006, I, David E. Cook, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, Esquires, hereby certify that I have, this date, served a copy of Plaintiffs' Response to Defendant's Petition for Contempt and Sanctions, by United States Mail, addressed to the party or attorney of record as follows: Thomas S. Diehl PO Box 613 Harrisburg, PA 17108 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ~ BY ~.~ ~J DAVID E. COOK, ESQUIRE Supreme Court I.D. 78318 Attorney for Plaintiff 110 South Northern Way York, PA 17402 (717) 757-7602 -- \~:- . R. H. DONNELLY PUBLISHING AND ADVERTISING, INC. t/d/b/a SPRING YELLOW PAGES Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 20th day of September, 2006, upon consideration of the Defendant's Petition for Contempt and Sanctions, to include a judgment of Non Pros, and it appearing that the Plaintiff did answer the Defendant's Interrogatories and Request for Production of Documents by August 30, 2006, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Petition for Contempt and Sanctions is DENIED. By the Court, ,~~ M. L. Ebert, Jr., J. ~vid E. Cook, Esquire Attorney for Plaintiff ,;(homas S. Diehl Defendant bas ~ames Flower, Jr., Esquire Chairman of the Board of Arbitrators ~ 'v'INV1ri{SNN3d AlNnn") r" 1~'I''1u'''~IAI/')I'\ "".",,,, U-!.:::ltil''iJ hJ SO: /J /.;V Ol ellS 900l I-.E:JV10NOHIOdd 3Hi. '':10 30!:J:JO-O:i7f:J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.H. Donnelley Publishing and Advertising, Inc. tJd/b/a Sprint Yellow Pages, Plaintiff, Civil Action - Law NO. 05-3031 v. Thomas S. Diehl, Defendant. PRAECIPE FOR WITBDRAWAIiENTRY OF APPEARANCE PURSUANT TO Pa.R.C.P. 1012 TO THE PROTHONOTARY: Kindly withdraw the appearance of Kristi A. Gohn, Esquire of Griffith, Strickler, Lerman, Solymos & Calkins, and enter the appearance of David E. Cook, Esquire of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for the Plaintiffs, R.H. Donnelley Publishing and Advertising, Inc. tJdlb/a Sprint Yellow Pages, in the above-captioned matter and mark the docket accordingly. GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS BY:~' a.//J~. KRISTI A. GOHN, ESQUIRE Supreme Court!D No. 84738 ~ =-------- ~ - .-:;J ~-- ) DAVID E. COOK, ESQUIRE Supreme Court ID No. 78318 Attorney for Plaintiff, R.N Donnelley Publishing and Advertising, Inc. t/d/b/a Sprint Yellow Pages 110 South Northern Way York, PA 17402-3737 Telephone: (717) 757-7602 Dated: September 21,2006 .. -~..... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA R.H. Donnelley Publishing and Advertising, Inc. t/d/b/a Sprint Yellow Pages, Plaintiff, Civil Action - Law NO. 05-3031 v. Thomas S. Diehl, Defendant. CERTIFICATE OF SERVICE AND NOW, this 21st day of September, 2006, I, David E. Cook, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy of the Praecipe for WithdrawallEntry of Appearance by United States Mail, addressed to the party or attorney of record as follows: Thomas S. Diehl 302 South Pitt Street Carlisle, P A 17013 GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS BY: c- '--~ r ?~ DAVID E. COOK, ESQUIRE Supreme Court ID No. 78318 Attorneyfor Plaintiff, R.H Dotmelley Publishing and Advertising, Inc. tld/bla Sprint Yellow Pages 110 South Northern Way York, PA 17402-3737 Telephone: (717) 757-7602 () c s: """(')cq rnr: : Z:,Lo ti~ ~~ .:.'- ~C:~ '-%-t:) -;P'C ~ ~ = = c::<"' en r"1 -0 N N ~ ~~ :g8 b6 :3-1'. ;':> :!J "?'"~ o ~ ::..::::. -0 :;.: N .- .r:- eo R. H. DONNELLY PUBLISHING AND ADVERTISING, INC. t/d/b/a SPRING YELLOW PAGES Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 21st day of September, 2006, upon consideration of the Motion to Amend Petition for Contempt and to Strike Plaintiff's Objections to Discovery filed by the Defendant, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiff to show cause why the Defendant is not entitled to the relief requested; 2. The Plaintiff will file an answer to this Motion on or before October 2, 2006; 3. The Prothonotary is directed to forward said answer to this Court when filed; ... A hearing will be held on Friday, October 6, at 1 :30 p.m. in Courtroom NO.5 of the Cumberland County Courthouse, Carlisle, PA. By the Court, Thomas S. Diehl Defendant ''t J. David Cook, Esquire Attorney for Plaintiff q-~---()(p ~.~ bas Vlf\iVAl}SNN3c! jl ! l\ In'' ,"\ "'__r" '"V'; U\lnf"l \lJ~j ,t)-, '. )'''-'l'jV~jV B +j :8 HV SZ d3S SOUl AHV10NGH1Dud 3Hl :10 381:1:10-03111 ,.. R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. tJd/b/a SPRINT YELLOW PAGES, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. Civil Action - Law No. 05-3031 Jury Trial Demanded THOMAS S. DIEHL, Defendant. PRAECIPE TO: PROTHONOTARY Please mark the docket in the above captioned matter discontinued and ended without prejudice. GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS BY:~~ ---=:: ~ DAVID E. COOK, ESQUIRE Supreme Court J.D. 78318 Attorney for Plaintiff 11 0 South Northern Way York, PA 17402 (717) 757-7602 DATED: October 4, 2006 ~ R.H. DONNELLEY PUBLISHING AND ADVERTISING, INC. t1d/b/a SPRINT YELLOW PAGES, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. Civil Action - Law No. 05-3031 Jury Trial Demanded THOMAS S. DIEHL, Defendant. CERTIFICATE OF SERVICE AND NOW, this 4th day of October, 2006, I, David E. Cook, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, Esquires, hereby certify that I have, this date, served a copy of the foregoing Praecipe to Discontinue, by United States Mail, addressed to the party or attorney of record as follows: Thomas S. Diehl PO Box 613 Harrisburg, PA 17108 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS BY ~ -- ---=c-~ DAVID E. COOK, ESQUIRE Supreme Court I.D. 78318 Attorney for Plaintiff 110 South Northern Way York, PA 17402 (717) 757-7602 ~ c:::> 0-' o (J _\ , tJ1 ~ ..-\ :I:'""f'\ n'f;; ~g~~j \~~\G'l ':2r~ ,<~:: rn ::!t ~ ? ~~..:;}. .,...;.... -- - o CO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA R.H. Donnelley Publishing And Advertising, Inc. t/d/b/a Sprint Yellow Pages Plaintiff Civil Action - Law No. 05-3031 v. Thomas S. Diehl Defendant PETITION TO STRIKE DISCONTINUANCE Facts 1. On September 21, 2006, this court entered an Order that: a. Directed the Plaintiff to file an answer, on or before October 2,2006, to Defendant's outstanding motion to strike Plaintiffs objections to discovery; AND b. Scheduled a hearing on Friday, October 6,2006 to address the issues raised in Defendant's motion. (A copy of the Order is attached as "Exhibit A") 2. On October 2, 2006 Plaintiff s counsel informed Defendant by telephone of Plaintiff s intention to discontinue this present action. 3. Defendant advised Plaintiff s counsel that he would only agree to do so if said discontinuance was with prejudice. 4. Plaintiffs counsel requested an additional day to file an answer in order to either acquire authority from Plaintiff to discontinue this matter with prejudice or, in the alternative, to file an answer as directed in the order of September 21, 2006. 5. On October 2,2006 the parties contacted this Court via conference call and notified the court of their agreement to extend Plaintiff s deadline for filing an answer until October 3,2006. 6. On October 3, 2006, having not received a response from the Plaintiff, Defendant sent an email to Plaintiff s counsel requesting status, which stated in pertinent part: "If we are unable to resolve this matter today, please email me a copy of your answer to the outstanding motion contemporaneously with your filing it with the court. If you send it by mail, I will likely receive it with little or no time remaining before Friday. If this is not possible, please let me know." 7. Later on October 3,2006, Plaintiffs counsel responded in pertinent part: "I am still awaiting a response from my client." 8. On October 4,2006, Defendant again requested status of the Plaintiff by sending Plaintiffs counsel an email that read in pertinent part: "Have you submitted an answer to the court? If so, can you email a copy to me? Thanks" 9. Plaintiff s counsel did not respond to this request. 10 On October 5,2006, the Defendant again requested status of the pending matter by sending Plaintiff s counsel an email that read in pertinent part: "Our hearing is tomorrow and I still have not received a copy of your answer by mail, email, or otherwise. Moreover I am a little disappointed that you have not responded to my previous inquires into this matter. A response would be greatly appreciated. Thanks." (The above mentioned emails are collectively attached as "Exhibit B".) 11. Again, Plaintiff s counsel did not respond. 12. On October 6,2006 the Defendant learned from the Court that the Plaintiff had not filed an answer pursuant to the court's directive of September 21, 2006, but rather had on October 5,2006 filed a praecipe to discontinue the matter without prejudice. Attached hereto as "Exhibit C". 13. Accordingly, the hearing of October 6,2006 was cancelled without prior notice to the Defendant. Application of Law 14. P.R.C.P. 229(c) states in pertinent part: "The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice." 15. Defendant has sought discovery in this matter for six months through numerous motions. 16. In response, Plaintiff has repeatedly failed to respond to court directives regarding discovery; Plaintiff has not complied with prior orders of court dated: July 18, 2006, August 15, 2006, and September 21, 2006. Attached collectively as "Exhibit D". 17. The issue scheduled to be heard by the court on October 6,2006 was whether Plaintiffs dilatory and non-responsive behavior had constituted a waiver of its ability to object to the Defendant's discovery request. 18. Permitting the Plaintiff to avoid having this determination made by the court and preserving plaintiffs ability to re-file this action anew in the future prejudices the Defendant's right to seek and obtain timely discovery pursuant to the P.R.C.P. 19. Given the Plaintiff s history of dilatory and non-responsive prosecution of this matter, permitting it to "start over" would subject the Defendant to the very unreasonable inconvenience and expense that P.R.C.P. 229(c) was intended to prevent. 20. Plaintiff has not set forth any reason for now desiring to discontinue the proceeding. 21. Plaintiff desires to retain its right to re.file this action at a later date. 22. Plaintiff s praecipe expressly sets forth the discontinuance as being "without prejudice" . 23. A "discontinuance for the purpose of initiating a second suit is, without more, presumptively invalid." Yachere v. Yachere, 52 Pa. D. & C. 2d 669. Attach hereto as "Exhibit E". WHEREFORE The Defendant respectfully requests this court to issue and order directing an answer from the Plaintiff and scheduling a hearing in which the Plaintiff may set forth its reasons, if any, why its praecipe to discontinue should not be stricken. Thomas S. . I P.O. Box 613 Harrisburg, P A 17108 (717) 241-4287 yourfriendtomdiehl@yahoo.com y , R. H. DONNELLY PUBLISHING : IN THE COURT OF COMMON PLEAS OF AND ADVERTISING, iNC. : CUMBERLAND COUNTY, PENNSYLVANIA tJd/b/a SPRING YELLOW PAGES Plaintiff . V. : NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 21st day of September, 2006, upon consideration of the Motion to Amend Petition for Contempt and to Strike Plaintiffs Objections to Discovery filed by the Defendant, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiff to show cause why the Defendant is not entitled to the relief requested; 2. The Plaintiff will file an answer to this Motion on or before October 2, 2006; 3. The Prothonotary is directed to forward said answer to this Court when filed; 3. A hearing will be held on Friday, October 6, at 1 :30 p.m. in Courtroom No.5 of the Cumberland County Courthouse, Carlisle, PA. . -, ., {. \" ~ ~ '. . :; . By tne . Court; David Cook, Esquire Attorney for Plaintiff Thomas S. Diehl Defendant ,"'- J. bas -CDPr~. ~\:;.I~~"".~- 'zr~~~~ ~~..,., .. E. )<h;b~ -t A" ,-y rf "., , ~-.". Yahoo! Mail- yourfriendtomdi~hl@yahoo.com Page 1 of2 Search: i ~!i,ii"'l"""""-"- Yahoo! My Yahoo! Mail Make VI your home cage ~HOO!~MAIL Mail Home-Mail Tutorials - HelD Welcome, yourfriendtomdieh... [Sign Out, My Account] F7RT~E.c.cmE..'$ G". ....U... C...........C..-. "1' .ptll~~e . . ... . ...__j.~~ ". .... '. ". '.. ..... watch. ~&~ .1.DI~.~. l Mail v ~dres_ses ""'1- Calendar "'1 Notepad ""'l Mail For Mobile - Uparades - Options I\-J\ Vonage: 1 Free V Month & Router r-Folti"ersm------------ Ir ! I [Add - Edit] ! J Inbox (3) Draft Sent Bulk (6) Trash I My Folders I Pat I Search Shortcuts I II' My Photos : . My Attachments . I '-----________-1 hi ~:~~ss~~~;: $0 .' - . -. Earn a degree , . in 1 yr. Mortgage rates as low as 4.625% Degrees in as fast as 1 year Previous I Next I Back to Messaaes .._.__..____._....__________.__..____.____...._MM............._...._.__......__._..____.._...____._____......_..........m....__....__.____._..__...._._.__............_.__.__...__.----..-.-........--.. This message is not flagged. [ Flag Message - Mark as Unread] Printable View ___._.____._....... ..... ._~___._.______...M.._....._.._...__........._~__.______.--..-...-..---...-.--..-..-........---...--...... .....-,.....-....--.-...-........-....-.--..... ..............--.-..---...---....-....-.........-- Subject: RE: R. H. Donnelly Date: Tue, 3 Oct 200613:59:17 -0400 "David Cook" <dcook@gslsc.com> IIAdd to Address Book I Add Mobile Alert From: To: "tom diehl" <yourfriendtomdiehl@yahoo.com> FYI - I am still awaiting a response from client. This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If-you have received this in error, please (1) do not forward or use this information in any way; and (2) contact me immediately. Thank you. David E. Cook, Esquire Griffith, Strickler, Lerman, Solymos & Calkins -----Original Message----- From: tom diehl [mailto:yourfriendtomdiehl@yahoo.com] Sent: Tuesday, October 03, 2006 11:21 AM To: David Cook Subject: R. H. Donnelly Mr. Cook, If we are unable to resolve this matter today, please email me a copy of your answer to the outstanding motion contemporaneously with your filing it with the court. If you send it by mail, I will likely receive it with little or no time remaining before Friday. If this is not possible, please let me know. y E')(h~b~+ B - \ ' http://us.f516.mail.yahoo.com/ym/ShowLetter?Msgld=240 1_880686_944273_1567_1505... 10/4/2006 Yahoo! Mail- yourfriendtomdi~hl@yahoo.com Page 1 of 1 Search: ! ____~,lW~~""~~~~~ . Yahoo! Mv Yahoo! Mail Make V! your home oage Mail Home-Mail Tutorials - ./::!.elQ hHOOf&MAIL Welcome, yourfrlendtomdieh... [Sign Out, Mv Account] Calendar ... Mail For Mobile - Uogrades - Options ......... . $200k for $667/mo V No SSN Required I Folders [Add - Edit] I I Inbox (3) II , Draft ! r--~-'--------'--~ I ! Bulk (6) [Empty] i 'Trash [Empty] . [..-......_..._._...w.............w .........._..........."............ I My Folders [Hide] I I Pat .............._1 i Search Shortcuts I I My Photos L My Attachments I ~ . What's your credit score: $0 . Earn a degree in 1 yr. .$200,000 Loan . for $771/month .... Degrees in as ., v( fast as 1 year Previous I Next I Back to Messaaes This message is not flagged. [ Flag Message - Mark as Unread] Date: Wed, 4 Oct 2006 08:51:48 -0700 (PDT) Printable View From: "tom diehl" <yourfriendtomdiehl@yahoo.com> ~ View Contact Details I Add Mobile Alert Subject: R. H. Donnelly To: dcook@gslsc.com Mr. Cook, Have you submitted an answer to the court? If so, can you email a copy to me? Thanks, Tom Diehl All-new Yahoo! Mail- Fire up a more powerful email and get things done faster. Previous I Next I Back to Messages Save Messaae Text I Full Headers Copyright@ 1994-2006 Yahoo! Inc. All rights reserved_ Terms of Service - CopyrightllP Policy - Guidelines - Ad Feedback NOTICE: We collect personal information on this site. To learn more about how we use your information, see our Privacy Policy '" If E xh,b,+ B-~ http://us.f516.mail.yahoo.comlymlShowLetter?Msgld=71 08_900072_539916_563_906_0... 10/4/2006 Yahoo! Mail- yourfriendtomdiehl@yahoo.com ~ Yahoo! My Yahoo! Mail ,~ Page 1 of 1 ..... ,;Co ,...,__~,.,~~_~._~~,.."., S~a r:_~:~L";;;;;C,;;";;c''';;;'''''=';''',","';;;;;;",",''ii;j;;;;,,""''''"';;'=,_,,,,,,,,,,,,,..L.~.l!!~d Make Y! your home oage Mail Home-Mail Tutorials - 'tieJQ r '.. '. hHOO,g, MAIL ... $200k for $667/mo ~ No SSN Required . I Folders [Add - Edit] I Inbox (5) ! I Draft i ----~--'~~~.~_._-_._~_._-~._~ II Sent _~ I Bulk (17) [Empty] I Trash [Empty] f.. .'.'''-.'' .... '.."-.'.') I My Folders [Hide] ! I Pat I L-- _~ !'"Sea'rch-'sti"ortcuts ! i I ! I My Photos My Attachments . What's your credit score: $0 .. Earn a degree in 1 yr. 30 yr mortgage rates still low Degrees in as fast as 1 year Welcome, yourfriendtomdieh... [Sign Out, Mv Account] Calendar Notepad Mail For Mobile - Upgrades - Options Previous I Next I Back to Messaaes . This message is not flagged. [ Flag Message - Mark as Unread] Printable View . ...-...._....._........__....__._....~--.~.._.._......_.-.-_....._~.......-....__...._..........._......._._..................-.- .. .....-... .. --......-.................. ....._...._....-.__........__.........~....._._.,...._...... Date: Thu, 5 Oct 2006 09 :48: 10 -0700 (PDT) "tom diehl" <yourfriendtomdiehl@yahoo.com> ~view Contact Details i1 Add Mobile Alert Subject: R. H. Donnelley From: To: dcook@gslsc.com Mr. Cook, Our hearing is tomorrow and I still have not received a copy of your answer by mail, email, or otherwise. Moreover I am a little disappointed that you have not responded to my previous inquires into this matter. A response would be greatly appreciated. Thanks, Tom Diehl Do you Yahoo!? Get on board. You're invited to try the new Yahoo! Mail. Previous I Next I Back to Messaaes Save Messaae Text I Full Headers Copyright @ 1994-2006 Yahoo! Inc. All rights reserved. Terms of Service - CopyrightllP Policy - Guidelines - Ad Feedback NOTICE: We collect personal information on this site. TO learn more about how we use your information, see our Privacy Policy \,- E ~h~h~t B-3" http://us.f516.mail.yahoo.comlymlShowLetter?MsgId=6890 _942080_540581_596_512_0... 10/5/2006 \' ') R.H. DONNELLEY PUBLISHING "NO ADVERTISING, INC. tld/b/a SPRINT, YELLOW PAGES, Plaintiffs, IN THE.COURT OF COMMON PLEAS " ,CUMBERLAND COUNTY, PA .' Civil Action - Law No. 05-3031 Jury Trial Demanded vs. THOMAS S. DIEHL, Defendant. PRAECIPE (") c <- a~T ~~:~ ~e._.. >,--. .L~:- j; :~.: '- 2: _..J ,.J -, TO: PROTHONOTARY. C) co Please mark the docket in the above captioned matter discontinued and ended without prejudice. GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS By: C ~- -==: ~ DAVID E. COOK, ESQUIRE Supreme Court 1.0.78318 Attorney for Plaintiff 110 South Northern Way York, PA 17402 (717) 757-7602 DATED: October 4,2006 \" . E')C"'~ b;-\- C ,......, = c:;:, CT'\ o c---; -1 I U1 o " "-i :C,., mp -om :nCJ C-, '. '.--1 c_ ._,.,. :~;; om :-{ ;:> ::0 -< ~ r R. H. DONNELLY PUBLISHING AND ADVERTISING, INC. Ud/b/a SPRING YELLOW PAGES Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 18th day of July, 2006, upon consideration of the foregoing Motion to Compel Answers to Interrogatories and Request for Production, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Plaintiff to show cause why the Defendant is not entitled to the relief requested; 2. The Plaintiff will file an answer to this petition on or before August 8, 2006; 3. A copy of said answer will be filed with this Court; 4. The petition shall be decided under Pa.R.C.P. No. 206.7; 5. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, a hearing will then be scheduled. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall be granted. By the Court, ~1 J. M. L. Ebert, Jr., Charles B. Calkins, Esquire Attorney for Plaintiff Thomas S. Diehl Defendant bas " " E ~h~b\'~ 0- \ '. I .Ie ,.~.-...~.~.-..........~ R. H. DONNELLY PUBLISHING : IN THE COURT OF COMMON PLEAS OF AND ADVERTISING. INC. : CUMBERLAND COUNTY. PENNSYLVANIA tJdlb/a SPRING YELLOW PAGES Plaintiff V. : NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant : CIVIL ACTION - LAW ORDER OF.COURT AND NOW. this 1511'1 day of August~ 2006, upon motion of Defendant, Thomas S. Diehl, and the Plaintiff having failed to answer the Rule issued July 18, 2006, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff. R. H. Donnelley Publishing and Advertising, Inc.. shall answer fully Defendanfs first set of Interrogatories and Request for Production of Documents on or before August 30, 2006. Failure to answer will result in the imposition of sanctions. By the Court, ~1 M. L. Ebert, Jr., J. Charles B. Calkins. Esquire Attomey for Plaintiff Thomas S. Diehl Defendant bas --tbPY.'-.'. . ,'..'i . ..t'UIG.~..t~~ ~~1~ CX::srt " f.". h~~;.\ D - ~ .. .,. "\ i .... R. H. DONNELLY PUBLISHING ,.: IN THE COURT OF COMMON PLEAS OF AND ADVERTISING, 1NC. . ,.,..: CUMBERLAND.COUNTY, PENNSYLVANIA tld/b/a SPRING YELLOW PAGES . '. .' . Plaintiff . . V. THOMAS S. DIEHL Defendant . : NO. 05-3031 CIVIL : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 21st day of September, 2006, upon consideration of the Motion to Amend Petition for Contempt and to Strike Plaintiff's Objections to Discovery filed by the Defendant, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the Ptain!iff to show cause why the Defendant is nat entitled to the relief requested; 2. The Plaintiff will file an answer to this Motion on or before October 2, 2006; 3. The Prothonotary is directed to forward said answer to this Court when filed; 3. A hearing will be held on Friday, October 6, at 1 :30 .p.m. in Courtroom NO.5 of the Cumberland County Courthouse, Carlisle, PA. . . . i"\..~-'" ~ ..if~' t ...~, By ttle COUrt; . . ~ 1 . ! David Cook, Esquire Attorney for Plaintiff Thomas S. Diehl Defendant ,'\. J. bas E,,~:b;~ ~-.". ~"'f." ~ ~law: 52 Pa. D. & C.2d 768 26 Som. LJ. 196,52 Pa. D. & C.2d 768, 1971 WL 14217 (Pa.Com.PI.) Page 1 p Court of Common Pleas of Pennsylvania, Somerset County . Yachere v. Yachere C. D. 1969, no. 325. July 22, 1971. ** 1 *768 Petition to strike off discontinuance. West Headnotes Divorce ~139 134k139 Most Cited Cases Divorce ~219 134k219 Most Cited Cases While a discontinuance in a divorce action filed without leave of court is presumptively valid, a discontinuance for the purpose of initiating a second action is invalid and will be stricken off on defendant's motion pursuant to Pa.R.C.P. 229(c) (12 P.S. Appendix) where the purpose of the discontinuance is to enable plaintiff to file a divorce action in Nevada; an alimony order previously entered will continue in effect. Divorce C::::>139 134k139 Most Cited Cases Under Pennsylvania law, a discontinuance for purpose of initiating a second suit is, without more, presumptively invalid, unless a legitimate reason for the second suit appears. Divorce ~139 134k139 Most Cited Cases Defendant wife's petition to strike off plaintiff husband's discontinuance of divorce action will be granted where there is no showing of legitimate cause for a subsequent divorce action in Nevada. Divorce €==>139 134kl39 Most Cited Cases Where court strikes off discontinuance of plaintiff husband's divorce action, alimony order will continue in effect. Robert W. Critchfield, for plaintiff. Alexander Ogle, for defendant. COFFROTH, P. J. This case is here on two petitions: I. Defendant wife's petition to strike off plaintiff husband's discontinuance of this divorce action; and 2. Plaintiff husband's petition to strike off a judgment entered against him by defendant wife for unpaid alimony. On February 23, 1970, we granted defendant's petition for alimony pendente lite and ordered payment of $45 monthly in addition to the contribution of $60 monthly being made for the support of one child. On July 27, 1970, plaintiff discontinued the action "without prejudice" by praecipe to the prothonotary. On August 17, 1970, defendant petitioned to strike off the discontinuance. On February 3, 1971, defendant entered judgment against plaintiff for $90, unpaid alimony for the months December, 1970 and January, 1971; and on February 19, 1971, plaintiff petitioned to strike off judgment. *769 At the hearing the parties did not appear and no testimony was taken, but counsel agreed that following the discontinuance plaintiff went to Nevada and filed a divorce complaint in Washoe County on August 14, 1970, and that a divorce decree was later obtained there. Counsel for defendant asserts that plaintiff discontinued for the purpose of filing the Nevada action although plaintiff is still a resident of Pennsylvania, that defendant will be put to ""additional and unreasonable inconvenience, vexation, harassment, expense and prejudice" and that she would lose her investment in this action if the discontinuance is allowed. Counsel for defendant states that the purpose of the discontinuance was not to file in Nevada, but to obtain the cost refund; that since the Nevada decree has not been pleaded or in any way asserted here and since no master has been appointed and no hearing held defendant is not prejudiced; and that defendant improperly seeks to use the alimony decree as a support order. NA TURE OF DISCONTINUANCE As at common law, a discontinuance means no more <0 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. \" E~h;b,t E" 52 Pa. D. & C.2d 768 26 Som. LJ. 196,52 Pa. D. & C.2d 768,1971 WL 14217 (Pa.Com.PI.) Page 2 than a declaration of plaintiffs willingness to stop the action. It is not an adjudication of his cause, nor an acknowledgement that he has no cause of action: Gibson v. Gibson. 20 Pa. 9 (Black, C. J.); Snyder v. Snyder. 19 Pa. D. & C. 125: Goodrich-Arnram. Section 229-2. **2 The discontinuance is not of right but requires leave of court: Beaver v. Slane 271 Pa. 317: but in Pennsylvania the universal practice is to enter the discontinuance without leave, and to presume leave subject always to the power of the court to strike off the discontinuance whenever shown to be inequitable or prejudicial to the defendant: Bausewine v. Norristown. 351 Pa. 634: Shapiro v. Philadelohia. 306 Pa. 216: Commonwealth v. Mal!ee. 224 Pa. 166: Commonwealth v. Tucker. 78 Pa. Superior Ct. 19. Thus, a *770 plaintiff has the option of seeking prior leave or of entering the discontinuance of record on his own motion without leave, but subject always to the control of the court on a motion or petition by defendant to strike off for prejudice. These are alternative methods of reaching the same result. In either case the court always detennines on equitable grounds whether pennission to discontinue should be granted. The court applies exactly the same principles in detennining the propriety of the discontinuance whether plaintiff asks for prior leave or not: 1 Goodrich-Arnram. Section 229 (c)-I, page 156. Moreover, if leave to discontinue has been improvidently granted the discontinuance may be later stricken if challenged: Rabuck v. Rabuck. 54 Pa. D. & C. 276. As to the third party effect of a recorded discontinuance on the basis of presumed leave, see Lindsav v. Dutton. 217 Pa. 148. 149: compare Eichert Estate. 155 Pa. 59 and Sherwood v. Yeomans. 98 Pa. 453. 456. Since a discontinuance does not adjudicate any part of the subject matter of the action, it is not res judicata and is no bar to a subsequent action on the same cause of action: Gibson v. Gibson, supra. In divorce cases, however, the lower courts have refused to presume leave to discontinue, requiring express prior leave of court after notice and hearing in order to discontinue a divorce case: Geiger v. Geiger. 54 Pa. D. & C. 557: Sellers v. Sellers. 25 Pa. D. & C. 77. We find no appellate decision announcing this rule, but it has been applied in this court in MulI v. Mull, 14 Somerset 192 (Boose, P. J.). The distinction between divorce cases and other civil actions in this regard is based on the notion that divorce is affected with the public interest which requires stricter supervision of its proceedings. *771 Discontinuances are now governed by Pa. R. C. P. 229 which provides as follows: "(a) A discontinuance shall be the exclusive method of voluntary tennination of an action, in whole or in part, by the plaintiff before commencement of the trial. **3 "(b) A discontinuance may not be entered as to less than all defendants without leave of court after notice to all parties. "( c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice. II The rule makes some notable changes in the common law practice (see 1 Goodrich-Amram. Section 229-1:) I. It eliminates all procedures other than discontinuance for tennination before trial, such as retraxit and nolIe prosequi; 2. It limits the discontinuance to use before trial; 3. It limits the voluntary nonsuit to use during trial; 4. It prohibits a discontinuance as to less than all defendants without leave of court after notice. Since the rule singles out the case of a discontinuance as to less than all defendants as the only instance requiring prior leave of court, the inference is that in all other cases, including divorce, such prior leave is not required, thus changing the prior practice. This inference is reinforced by the fact that, as pointed out in the Committee's Note to Rule 229, prior court approval must be obtained where it is expressly required by other rules: where a minor is a party, (2039 a and 2206a), where an incompetent is a party (2064; Lauterbach v. Lauterbach, 202 Pa. Superior 260), and in class actions (2230b); Rule 2231 (e) also places special limits on a discontinuance where defendants primarily and secondarily *772 liable are joined. Yet the divorce rules contain no such requirement for prior court approval and state expressly that the procedure in divorce shall, unless otherwise provided in the divorce rules, "be in accordance with the rules relating to assumpsit." r But the authors of Goodrich-Amram say that the fonner discontinuance practice in divorce requiring express prior leave of court, will continue under the co 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 52 Pa. D. & C.2d 768 26 Som. LJ. 196,52 Pa. D. & C.2d 768,1971 WL 14217 (Pa.Com.PI.) Page 3 new Rule 229 "since it is in no way inconsistent with these rules. Particularly is this true because of the 'substantive' right of the Commonwealth, as the so- called third party, in divorce suits." Apparently most lower courts are going along with the old practice; yet, when there is a motion to strike a divorce discontinuance entered without leave, instead of striking it off for that reason, inquiry is made into the fairness of the discontinuance just as is done in any other civil case whether prior leave was obtained or not. Therefore it does not appear that discontinuances in divorce are being treated any differently than in other types of civil cases. In Elliott v. Elliott. 30 Pa. D. & C.2d 533. the court rejected the reasoning of Goodrich-Amram and the prior practice, and held that Rule 229 puts divorce cases on an equal plane with other civil actions. In response, Goodrich-Amram comments, Section 229- 8, 1971 Supplement: "It is not clear from the Court's opinion how the 'public interest' of the Commonwealth in divorce actions is eliminated by the language of the rules." **4 We agree with Elliott, not only because of the language of the rules above cited, but because the public interest is not specially involved in a divorce discontinuance any more than in the discontinuance ofthe usual type of civil action. The public interest is involved to a degree in every lawsuit. See Vivian v. Renaldo, 364 C. D. 1970. The concept of the Commonwealth *773 as third party in divorce actions was developed as a barrier to collusion and to dissolution of marriage for improper causes: Hall v. Hall. 122 Pa. Superior Ct. 242: .Smith v. Smith. 112 Pa. Superior Ct. 210: English v. English, 19 Pa. Superior 586, 598. The law favors continuance of the marriage, not divorce: Mathiot Estate. 243 Pa. 375. The doctrine of the Commonwealth as third party is unrelated to terminating divorce cases; there is no policy of encouraging the continuation of divorce litigation. Divorce is not the kind of case which ought necessarily in the public interest go on despite the desire of the party filing it, as is the case with some civil matters. See Mercersburg School District. 237 Pa. 368 and In Re Wilhelm. 104 Pa. Superior Ct. 479. The public interest is adequately protected by court supervision and control over the granting of divorce decrees. Accordingly, under Rule 229, we conclude that a discontinuance may be entered in a divorce case unilaterally on praecipe of plaintiff upon a presumption of leave as in any other civil case, and we would therefore not strike this one simply for lack of such leave and without inquiring into the merits of its propriety. THE VOLUNTARY NONSUIT COMPARED The similarity of the discontinuance to the voluntary nonsuit should be noted: both terminate the action, and neither is res judicata nor a bar to a subsequent suit. Rule 231(a); Goodrich-Amram. Section 230-3. There are these differences: the voluntary nonsuit may be made only during trial and before the close of the testimony; if done before resting his case, plaintiff may have a nonsuit as a matter of right but if done later only by leave of court: Rule 230. It has been held under this rule that a hearing before a master in divorce is a "trial" and therefore a discontinuance is improper after the hearings *774 begin: Deigan v. Deigan 210 Pa. Superior Ct. 240. It is not entirely clear why a voluntary nonsuit during plaintiffs case at trial should be a matter of right which cannot be defeated by any showing of prejudice, whereas a discontinuance before trial is not of right; but the distinction is well established judicially. Ordinarily plaintiff after going to trial may promptly take a voluntary nonsuit which terminates the action beyond the control of defendant or of the court: Felts v. Delaware. 170 Pa. 432. irrespective of any resulting inequity to defendant. Under Rule 229, the discontinuance may be refused or stricken "in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice." Yet a timely voluntary nonsuit cannot be denied on any such ground. DISCONTINUANCE TO BEGIN ANOTHER ACTION **5 Although plaintiffis not barred, after discontinuance, from beginning a new action against the same defendant upon the same cause of action, it is precisely such a second action which brings the discontinuance into question here. It is plain that the purpose of the discontinuance was not only to retrieve plaintiffs deposited cost money, but to clear the Somerset County record so that he might seek a divorce in Nevada, and we so find; we infer that purpose from the order and timing of defendant's actions. Whether the Nevada court had jurisdiction to make a decree in this case is unknown to us and plaintiff has not pleaded that decree in support of either his discontinuance nor his petition to strike the alimony judgment; consequently the validity of that decree is not before us. In fact, in this case the material fact is not the Nevada decree but rather the discontinuance in Pennsylvania for the purpose of filing the Nevada action; whether that action is pending or concluded is immaterial in this record. *775 The general rule has been stated to be that "the @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 52 Pa. D. & C.2d 768 26 Som. LJ. ]96,52 Pa. D. & C.2d 768, ]97] WL ]42]7 (Pa.Com.PI.) Page 4 fact that plaintiff intends to institute, or institutes another suit on the same cause of action is not a sufficient ground for a denial of his motion to discontinue the action....": 27 CJS. Dismissa] and Nonsuit. Section 26, page 357. The same text goes on to state, however, that the contrary has been held, citing Pennsylvania authority. Whatever may be the prevailing rule elsewhere, it was early established in Pennsylvania that: "Whenever, therefore, it appears a party discontinues one suit, for the purpose, merely, of instituting another for the same cause of action elsewhere, the court, on motion, will set aside the discontinuance, and reinstate the former suit, and subject the party to the consequences of his own acts": Mechanics Bank v. Fisher. 1 Rawle. 341. 347 (829). This statement was quoted with approval in Brown v. Phillips. 365 Pa. 155. 159 (950), and its principle has been generally applied in the Pennsylvania decisions. Those cases show a consistent pattern. The court in Leibowitz v. Platt, 43 Pa. D. & C.2d, 225, 230, correctly outlined that pattern: "In all of the reported decisions on the subject which we have examined, we have observed that where the discontinuance was allowed or upheld, a substantial and legitimate reason was shown for the entry of the discontinuance and the institution of the second suit." It appears that a discontinuance without more is presumptively valid; but a discontinuance for the purpose of initiating a second suit is, without more, presumptively invalid. This has been the holding whether the second action is filed in the same court, Rabuck v. Rabuck, supra, or in another Pennsylvania county, Keiser v. Keiser. 4 Pa. D. & C.2d 65. or in another State, LeFever v. LeFever. 30 Pa. D. & C.2d 553 or in a Federal court, Brown v. Phillips, supra. On the other hand, *776 where a legitimate reason for the second action appears, the discontinuance is approved: Pesta v. Barron. 185 Pa. Suoerior Ct. 323: Caimaichelo v. Pinkston 41 Pa. D. & C.2d 727: Snyder v. Snyder, supra. In this case plaintiff has not attempted to explain or justify nor even to rely upon his Nevada divorce action, which suggests that he did merely what many divorce plaintiffs do: filed his action here at the matrimonial domicile to test defendant's resistance; finding it firm, and faced with an unpalatable alimony order requiring him to contribute to his wife's maintenance which he undoubtedly regards as unjust in his view of the marital controversy, which has never been adjudicated here, he concluded that he would have a better chance elsewhere, particularly in a distant and liberal "quickie" divorce state, where defendant is likely to find it difficult to resist him. Of course if the Nevada decree were shown to be valid, plaintiff would necessarily succeed here: Harrison v. Harrison. 183 Pa. Superior Ct. 562. **6 If plaintiff had some discernible legitimate cause for going west to sue, we would not place too much emphasis on the differences in substantive and procedural divorce law as between Pennsylvania and Nevada, nor upon the practical burdens imposed upon defendant by the distance involved, compare Delaware v. Ashelma. 300 Pa. 291; but in the absence of such a showing these latter considerations loom large and are in fact vexatious and prejudicial to defendant. Under the circumstances we must strike the discontinuance. Although the situation here differs factually from the case of concurrent duplicate actions, similar policy considerations are involved: Renaldo v. Vivian, supra. There we held that the filing of a local trespass action, concurrent with a Federal action, was justified because of Federal jurisdictional uncertainties, and we allowed the prompt discontinuance of the local *777 action after the Federal court took jurisdiction. In McSherry v. Erving, 25 Somerset 8], we allowed a discontinuance against one of several defendants where no subsequent action was contemplated. Courts abhor "forum shopping": Lauterbach v. Lauterbach, supra, at page 262; see also concurring opinion in Monihan v. Monihan. 438 Pa. 380 at page 386. It implies plaintiffs belief that justice is unavailable to him in the first forum. Accordingly, the foreign action may be disapproved to "protect the jurisdiction" and the integrity of the local court, apart from prejudice to any party: Wenz v. Wenz. 400 Pa. 397. In practical terms, striking this discontinuance will not affect the Nevada Court in proceeding with its case, nor the validity of its decree: 27 CJS. Divorce. Section 230. Nor can we force plaintiff to trial in the local action: Felts v. Delaware, supra; Elliott v. Elliott, supra, page 542. Plaintiffs failure to proceed to trial when called may cost him a nonsuit, but it bears the characteristics of a voluntary nonsuit and does not bar a later action under Rule 23 ] (b): 1 Goodrich-Amram. Section 231 (b)-b and -6. The chief practical consequence of striking the discontinuance here is that the alimony order will continue in effect; apart from the question whether a discontinuance impliedly terminates an order for alimony pendente lite, compare Commonwealth v. DiDonato. 156 Pa. Superior Ct. 385. which we need @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 52 Pa. D. & C.2d 768 26 Som. LJ. ]96,52 Pa. D. & C.2d 768, ]97] WL ]42]7 (Pa.Com.PI.) Page 5 not here decide, it is certain that the order continues in effect when the discontinuance is stricken, because the litigation is still pending. Since plaintiff is not presently disposed to prosecute this case, the alimony order is not strictly necessary to enable defendant to maintain the action and defendant is thus permitted, as counsel for plaintiff says, to use it as a support order. But there is no rea] objection to that; it is in substance a support order because it fu]filIs *778 plaintiffs support obligation to his wife, despite the technical differences between alimony and support, as we pointed out when this case was here before: 25 Somerset 41; were we to vacate the alimony order defendant would simply be relegated to seeking a support order to accomplish substantialIy the same objective. That too would be prejudicial to defendant. **7 According]y, we will "subject the party to the consequences of his own acts," whatever they may be. As to the judgment for alimony, it is authorized by the Divorce Law as amended, 23 P. S. 46, and no other question as to its propriety has been raised. ORDER Now, Ju]y 22, ]97], the rule to strike off the discontinuance is made absolute and the discontinuance is stricken off. Plaintiffs petition to strike off the alimony judgment is denied. Costs on plaintiff. END OF DOCUMENT @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. VERIFICATION I, Thomas S. Diehl, hereby verify that the statements made in the foregoing document are true and correct to the best of my personal knowledge, information and belief. Furthermore I verify this petition subject to the penalties of 18 Pa. C.S. Sec. 4904 related to unsworn falsifications to authorities. Dated: October 13,2006 c;:..5j)J) Thomas S. Diehl CERTIFICATE OF SERVICE I, Thomas S. Diehl, state that the attached documents were mailed to the following individual(s) by first class mail, postage prepaid on October 13,2006 and addressed to: Date: October 13, 2006 David E. Cook, Esq. 110 South Northern Way York, PA 17402 (717) 757-7602 ~ ~j)j) Thomas S. Diehl \. -)-.)1 , \ ;~.11 ~." .,:. '-too '. '" '" of......;. , ......... '.~l . " ...'...... Ci S:;; t:::; () -'T1 t~~ CJ ~.. ) ......c_j c,:' (;';' C.~) .6.;--" R. H. DONNELLY PUBLISHING : IN THE COURT OF COMMON PLEAS OF AND ADVERTISING, INC. : CUMBERLAND COUNTY, PENNSYLVANIA t/d/b/a SPRING YELLOW PAGES Plaintiff V. : NO. 05-3031 CIVIL THOMAS S. DIEHL Defendant : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 30th day of October, 2006, upon consideration of the Defendant's Petition to Strike discontinuance, IT IS HEREBY ORDERED AND DIRECTED that the Petition to Strike Discontinuance is DENIED at this time without prejudice. By the Court, ~avid E. Cook, Esquire Attorney for Plaintiff ~mas S. Diehl Defendant bas / J. ss : tll,IV IE 1:109D02 I U\" C' ,\ ;;;. '.' ' , ::11-1: :l"" I\c.ril q ,~\....;!j.'..lc;o :.ru.U :IJUJ0' {]3l!:J