HomeMy WebLinkAbout96-2728 CivilJOAN M. BEATTIE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vo
CIVIL ACTION - LAW
WILLIAM H. BEATTIE,
Defendant
NO. 96-2728 CIVIL TERM
IN RE: PLAINTIFF'S PETITIONS FOR DISCOVERY SANCTIONS
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., January 7, 2003.
In this acrimonious divorce case, Plaintiff has filed several petitions for discovery
sanctions based on Defendant's failure to respond adequately to interrogatories and
requests for production of documents after an order of court compelling such discovery
had been obtained by Plaintiff.~ A hearing was held on these petitions on June 3, 2002,
and August 22, 2002.
For the reasons stated in this opinion, Plaintiff's petition for discovery sanctions
will be granted.
STATEMENT OF FACTS
Plaintiff Joan M. Beattie resides at 75 Partridge Circle, Carlisle, Cumberland
County, Pennsylvania.2 Defendant William H. Beattie resides at 111 Clemson Drive,
Carlisle, Cumberland County, Pennsylvania.3 Plaintiff and Defendant were married on
December 6, 1969, and separated in April 1996, when Plaintiff left the marital home.4 In
May 1996, Plaintiff commenced this divorce action against Defendant.5
~ Pl.'s Third Pet. for Disc. Sanctions, filed Mar. 14, 2002; Pl.'s Second Pet. for Disc.
Sanctions, filed Dec. 26, 2001; Pl.'s Pet. for Disc. Sanctions, filed Dec. 10, 2001.
2 N.T. 40, Hr'g, Aug. 22, 2002 (hereinafter N.T. , Aug. 22, 2002).
3 N.T. 88, Aug. 22, 2002.
4 N.T. 40-41, Aug. 22, 2002.
5 Pl.'s Compl. in Divorce, filed May 16, 1996.
Several years before the parties separated, Plaintiff was involved in a car accident
and received approximately $100,000 in an ensuing personal injury claim.6 These
proceeds were used to purchase an apartment building in joint ownership of the parties, to
satisfy existing debts of the parties, and to invest in various stocks.7 The building, which
included four apartments, was managed by both parties, but Defendant was primarily
responsible for the investment of the personal injury proceeds and the parties' finances.8
Following the separation of the parties, Defendant assumed managerial control of
the rental property. In July 1996, Plaintiff filed a motion for preliminary injunction in
which she requested authority to control the cash flows from the apartments. This motion
was denied, and Defendant has remained in exclusive control of the management of the
property and the rental income.9
On April 23, 1999, after the issues of equitable distribution and other expenses had
been submitted to a divorce master,l° Plaintiff served on Defendant a request for
production of documents and a set of eleven interrogatories, in which Plaintiff requested
information pertaining to Defendant's investment of the personal injury proceeds and
management of the apartments since April 1996, when Defendant obtained exclusive
control over the rental property.~ On May 7, 1999, Defendant served a response to these
interrogatories. ~2 The response failed to answer fully several of Plaintiff's interrogatories,
specifically those dealing with the amount of monthly rent for each apartment unit; the
dates and amounts of rental increases for each unit; the dates and durations of, and the
6 N.T. 22, Hr'g, June 3, 2002 (hereinafter N.T., June 3, 2002); N.T. 44, 50, 56-58,
Aug. 22, 2002.
7Id.
8 Order of Ct., July 10, 1996 (Hoffer, J.); N.T. 22-24, 33-35, June 3, 2002; see also N.T.
44, 50, 56-58, Aug. 22, 2002.
9 N.T. 22-26, June 3, 2002; see also N.T. 44, 50, 56-58, Aug. 22, 2002.
l0 Order of Ct., Dec. 10, 1997 (Sheely, P.J.).
~ N.T. 28-31, June 3, 2002; see Pl.'s Pet. To Compel Disc., filed Aug. 31, 2001, para. 31.
~2 N.T. 28-31, June 3, 2002; see Pl.'s Ex. 13, Hr'g, June 3, 2002 (hereinafter Pl.'s Ex. ,
June 3, 2002).
2
reasons for, vacancies in the apartment; the dates, payors, and amounts of each rental
payment or other receipts for each unit; the dates, payees, amounts, and purposes of all
disbursements with respect to the rental properties; and all insurance policies in which
Defendant had an interest after April 1996.~3 Defendant stated that he had invested
approximately $41,000 from the proceeds of the personal injury recovery; however,
Defendant did not account for the current status of the investments.TM Defendant's
response also suggested that Plaintiff had removed furniture for which Defendant was
still making payments and that documentation to support many of these claims would be
provided "at the appropriate time.''~5
On November 8, 1999, Plaintiff requested by letter that Plaintiff provide
documentation to support the claims made in the response and give full and complete
answers to the interrogatories outlined previously.~6 Further, Plaintiff asked that
Defendant offer a complete accounting of the investment of the proceeds from the
personal injury recovery. ~7
After receiving no response to the letter, Plaintiff served on Defendant a second
request for production of documents and a second set of interrogatories, in which Plaintiff
asked for substantially the same information outlined previously.~8 Defendant failed to
~3 See Pl.'s Ex. 13, June 3, 2002. As an example, in response to an interrogatory
requesting "[t]he amounts of monthly rents for each unit as of April 5, 1996," Defendant
offered the following answer: "1996 gross rent - $21,375.00 / Per month - $1,781.25."
Id.
~4 Id.
~S ld.
~6 Pl.'s Ex. 14, Hr'g, Aug. 22, 2002 (hereinafter Pl.'s Ex. , Aug. 22, 2002); see N.T. 38,
77, Aug. 22, 2002.
~7 ld.
~8 See P1.'s Pet. To Compel Disc., filed Aug. 31, 2001, para. 40; Def.'s Answer to Pet. To
Compel Disc., filed Oct. 31,2001.
3
respond to either set of discovery requests, and, on August 31, 2001, Plaintiff filed a
motion to compel discovery. ~9
On October 31, 2001, following a discovery conference, the motion was granted
by order of court, which provided as follows:
AND NOW this 31st day of October, 2001, upon consideration of
Plaintiff's Petition and following a discovery conference held on this date,
Defendant shall, within (30) days from the date of this Order, provide
Plaintiff with the following information:
1. The amount of monthly rent for each apartment unit as of April
5, 1996, as requested in Plaintiff's interrogatory 5(a).
2. The dates and amounts of any rent increase for each apartment
unit after April 5, 1996, as requested in Plaintiff's interrogatory 5(b).
3. Durations and reasons for vacancies for each apartment unit
after April 5, 1996, as requested in Plaintiff's interrogatory 5(c).
4. Dates, payors and amounts of each payment of rent or other
receipt for each apartment unit from April 5, 1996, as requested in
Plaintiff's Interrogatory 5(d).
5. Dates, payees, amounts and purposes of all disbursements with
respect to the apartments from April 5, 1996, as requested in Plaintiff's
Interrogatory 5(e).
6. Documentation establishing that Plaintiff took furniture that
was on Defendant's credit card to which Defendant made reference in
response to Plaintiff's interrogatory 7(b).
7. Complete information concerning Defendant's life insurance
policies as requested in Plaintiff's interrogatory 8, from April 23, 1996,
though April 23, 1999.
8. Complete Responses to Plaintiff's Second Set of
Interrogatories.
9. Complete responses to both sets of Plaintiff's Request for
Production of Documents.
~9 See P1.'s Pet. To Compel Disc., filed Aug. 31, 2001, para. 41; Def.'s Answer to Pet. To
Compel Disc., filed Oct. 31, 2001. In Defendant's answer to the motion to compel
discovery, Defendant argued that the failure to respond was justified because Defendant
had exceeded the number of interrogatories permitted under local rule without obtaining a
permissive order of court. Id
4
10. Where Plaintiff's Request for Production of Documents
requests income tax returns be provided through and including income tax
year 2000.
11. Where Plaintiff's Request for Production of Documents
requests documents to the present that the present be construed to be the
date of Defendant's responses to Plaintiff's discovery under terms of this
Order.
12. In the event of Defendant's failure to respond completely with
respect to Plaintiff's inquiries concerning rents for the apartments,
Defendant may be charged with constructive receipt of the rents which
should have been received from all four apartments as if they had been fully
occupied since July 10, 1996.
13. Defendant shall be credited only with expenses for which he
can produce documentary evidence.
14. In the event of Defendant's failure to respond completely with
respect to Plaintiff's inquires concerning his stock trades, Defendant may
be charged with constructive receipt of $41,450 of Plaintiff's personal
injury proceeds.
The issue of attorney's fees is deferred to the Divorce Master.2°
On December 10, 2001, ten days after the expiration of the period in which
Defendant was to comply with the order of court, Plaintiff filed a petition for discovery
sanctions, in which Plaintiff proposed that Defendant be charged both with $41,450 of
Plaintiff's personal injury proceeds and with constructive receipt of the rents from all
rental properties.2~ Soon after receiving a copy of the petition, counsel for Defendant
transmitted to counsel for Plaintiff a facsimile document, which stated that counsel for
Defendant had "placed the Answer in the mail this day.''22 On December 14, 2001,
Plaintiff received the "Answer," which bore a postmark of December 13,2001.23
20 Order of Ct., Oct. 31,2001.
2~ Pl.'s Pet. for Disc. Sanctions, filed Dec. 10, 2001; see also N.T. 39-41, June 3, 2002.
22 Pl.'s Second Pet. for Disc. Sanctions, filed Dec. 26, 2001, paras. 46-47; Def.'s Answer
to Pl.'s Rule To Show Cause, filed Jan. 17, 2002; see also N.T. 39-41, June 3, 2002.
23 N.T. 39-41, June 3, 2002.
In the answer, Defendant responded to the interrogatories and requests made in
Plaintiff's second set of discovery requests, which primarily dealt with Defendant's
investment of the personal injury proceeds for stock trades; however, Defendant did not
provide answers to the remaining inquiries enumerated in the order of court dated
October 31, 2001.24 With respect to the interrogatories concerning stock trades,
Defendant stated that the proceeds from the personal injury recovery had been invested in
certain stocks, which had dropped in value and were now "essentially worthless.''25 To
many of the questions dealing with dates of trades and value of the stock, Defendant
stated that he was "unsure" and that "most [of the] records [were taken] by [Plaintiff] .,,26
After the "Answer" was mailed to Plaintiff, and after a rule to show cause had
been issued in response to the first petition for discovery sanctions, Plaintiff filed a
second petition for discovery sanctions.27 In the petition, Plaintiff explained that the new
filing was necessary because "the record has been confused by [Defendant's] late filing
of his totally deficient 'Answer'... [and] this Petition is necessary to clarify the record
as to the present status of [Defendant's] refusal to comply with the order of October 31,
2001."28 The petition reiterated allegations regarding the lack of complete responses to
the first and second sets of discovery requests.29
In response to these petitions, Defendant stated that the interrogatories were
"answered to the best of [Defendant's] ability" and that the failure to produce the
requested documents was justified because "[Defendant] does not have exclusive control
over many of the documents sought, and, in fact, many of the documents that related to
24 N.T. 50-51, June 3, 2002; see Pl.'s Ex. 17, June 3, 2002.
25 Pl.'s Ex. 17, June 3, 2002.
26 ~/d.
27 See N.T. 4-5, June 3, 2002.
28 Pl.'s Second Pet. for Disc. Sanctions, filed Dec. 26, 2001.
29 Xee id. Plaintiff's Third Petition for Discovery Sanctions was filed after both the rule to
show cause and Defendant's answer to Plaintiff's Second Petition for Discovery
6
the marriage were taken by [Plaintiff] at the time that she left the home.''3° Defendant
suggested that discovery sanctions were improper under these circumstances and that all
matters should be submitted to the Divorce Master for consideration as to the weight of
the evidence regarding equitable distribution and expenses.3~
DISCUSSION
Statement of Law
Pennsylvania Rule of Civil Procedure 4006, which governs answers to written
interrogatories, provides, in pertinent part, as follows:
Each interrogatory shall be answered fully and completely unless objected
to, in which event the reasons for the objection shall be stated in lieu of an
answer .... The statement of an objection shall not excuse the answering
party from answering all remaining interrogatories to which no objection is
stated. The answering party shall serve a copy of the answers, and
objections if any, within thirty days after the service of the interrogatories.
Pa. R.C.P. 4006(a)(2); see als'o Pa. R.C.P. 4005 ("[A]ny party may serve upon any other
party written interrogatories to be answered by the party served .... "). Similarly, parties
are required either to answer or to object to requests for production of documents within
thirty days of service. Pa. R.C.P. 4009.12.
Pennsylvania Rule of Civil Procedure 4019, which governs discovery sanctions,
provides, in pertinent part, as follows:
(1) The court may, on motion, make an appropriate order if
(i) a party fails to serve answers, sufficient answers or objections to
written interrogatories under Rule 4005; [or]
(viii) a party or person otherwise fails to make discovery or to obey
an order of court respecting discovery.
(2) A failure to act described in subdivision (a)(1) may not be excused
on the ground that the discovery sought is objectionable unless the party
Sanctions were placed incorrectly in another file by court personnel. N.T. 5, June 3, 2002.
The latest petition substantially repeated the allegations made in the previous two.
3o Def.'s Answer to P1.'s Rule To Show Cause, filed Jan. 17, 2002, paras. 13-14.
3~ Id paras. 16-18.
7
failing to act has filed an appropriate objection or has applied for a
protective order.
Pa. R.C.P. 4019(a). Whether a party has provided "sufficient answers" to interrogatories
or otherwise complied with an order of court with respect to discovery is to be
determined by the trial court and will generally be reviewed under an abuse of discretion
standard. See Patronick v. Commonwealth Arbitration Panel for Health Care, 62 Pa.
Commw. 439, 443-44, 436 A.2d 1252, 1254 (1981).
After a violation of the Pennsylvania Rules of Civil Procedure or an order of court
regarding discovery has been established, the trial court has discretion to impose
sanctions on the opposing party so as "to ensure compliance with proper orders of the
court and adequate and prompt discovery of matters allowed by the Rules of Civil
Procedure." Dunn v. Maislin Transp. Ltd, 310 Pa. Super. 321, 329, 456 A.2d 632, 636
(1983); see also Pa. R.C.P. 4019(c) ("The court, when acting under.., this rule, may
make.., such order with regard to the failure to make discovery as is just."). In
fashioning an appropriate order, the court should "select a punishment which 'fits the
crime'" in order to strike an appropriate balance between the magnitude if the violation
and the effect of the sanction. McGovern v. Hos£. Serv. Ass 'n of Northeastern Pa., 785
A.2d 1012, 1019 (Pa. Super. Ct. 2001) (quoting Ghaner v. Bindi, 779 A.2d 585, 590 (Pa.
Super. Ct. 2001)) (emphasis omitted). This analysis requires consideration of several
factors:
(1) the nature and severity of the discovery violation;
(2) the defaulting party's willfulness or bad faith;
(3) prejudice to the opposing party;
(4) the ability to cure the prejudice; and
(5) the importance of the precluded evidence in light of the failure to
comply.
Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super.
Ct. 1997) (quoting Stewart v. Rossi, 452 Pa. Super. 120, 125, 681 A.2d 214, 217 (1996)).
Regardless of the sanction imposed, the party in violation should, absent mitigating
circumstances, be assessed "the reasonable expenses, including attorney's fees, incurred
in obtaining the order of compliance and the order for sanctions." Pa. R.C.P. 4019(g)(1);
see also Sun Pipe Line Co. v. Tri-State Telecomms., Inc., 440 Pa. Super. 47, 66, 655 A.2d
112, 121 (1994) (stating that, if a discovery violation is established, counsel fees incurred
"as a direct result" of the violation should generally be awarded).
Application of Law to Facts
In the present case, the court is of the opinion that Defendant's failure to provide
sufficient answers to Plaintiff's first set of interrogatories and request for documents, as
required by order of court, constituted a discovery violation for which sanctions are
warranted. A discovery violation may be established by evidence that a party either failed
to provide sufficient answers to interrogatories or that a party did not comply with an
order of court regarding discovery. See Pa. R.C.P. 4019(a)(1)(viii) (stating that a
violation may be found when "a party.., fails to make discovery or to obey an order of
court respecting discovery"). In this case, Defendant failed to provide sufficient answers
to the first set of interrogatories and failed to respond to a second set of interrogatories.32
Further, in response to the order of court directing Defendant to supply answers to several
specific inquiries within thirty days, Defendant neither provided the responses in a timely
fashion nor answered all of the questions enumerated in the order of court.33 Accordingly,
32 In response to the motion to compel, Defendant argued that the second set of discovery
requests was improper as exceeding the maximum number of interrogatories permitted
under local rule, see Def.'s Answer to Pet. To Compel Disc., filed Oct. 31, 2001;
however, these objections were made only in response to the motion to compel, and were
not raised in response to the interrogatories themselves, as required by the Pennsylvania
Rules of Civil Procedure. See Pa. R.C.P. 4019(a)(2) ("A failure to act.., 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."); see also
Pa. R.C.P. 4006 ("Each interrogatory shall be answered fully and completely unless
objected to, in which event the reasons for the objection shall be stated in lieu of an
answer.").
33 In response to the petition for discovery sanctions, Defendant argued that Defendant
did not have control of the documents requested, see Def.'s Answer to Pl.'s Rule To
Show Cause, filed Jan. 17, 2002; however, these objections were made only in response
to the motion to compel, and were not raised in response to the interrogatories
themselves, as required by the Pennsylvania Rules of Civil Procedure. See Pa. R.C.P.
9
Defendant's conduct is sufficient to implicate sanctions under Pennsylvania Rule of Civil
Procedure 4019. Cf Phila. Contribtttionship Ins. Co. v. Shapiro, 798 A.2d 781, 785-86
(Pa. Super. Ct. 2002) (finding discovery violation when party failed to respond to formal
discovery requests, informal requests, and orders of court compelling discovery).
In determining the appropriate sanction to be imposed for a violation, courts
should balance the nature and willfulness of the violation and the potential effect of the
proposed sanction in curing any prejudice to the moving party. McGovern, 785 A.2d at
1019; Croydon Plastics Co., 698 A.2d at 629. In this case, in the view of the court,
Defendant's failure to provide timely or adequate responses to the interrogatories, as
required by order of court, constituted less than good-faith conduct. In April 1999,
Plaintiff served on Defendant the first set of discovery requests, to which Defendant
provided insufficient answers. Despite informal requests to supplement these responses,
Defendant failed to do so, necessitating a second set of discovery requests, to which
Defendant failed to respond at all. In granting the subsequent motion to compel, the court
allowed Defendant thirty additional days in which to respond and enumerated the specific
inquiries that Defendant should answer. Yet, Defendant failed to submit a response
within the period, and did so only after receiving a copy of the petition for discovery
sanctions filed by Plaintiff. Further, the answers mailed by Defendant - several days later
than the date on which Defendant verbally assured Plaintiff's counsel that they would be
sent - did not ad&ess many of the inquiries listed in the order of court. In the court's
view, these actions are indicative of willfulness on the part of Defendant.34 Cf Hein v.
4019(a)(2) ("A failure to act.., 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."); see also Pa. R.C.P. 4006 ("Each interrogatory shall
be answered fully and completely unless objected to, in which event the reasons for the
objection shall be stated in lieu of an answer.").
34 At the hearing on Plaintiff's petitions for discovery sanctions, Plaintiff presented
evidence that suggested a course of misconduct on the part of Defendant since the start of
this case. See, e.g., N.T. 15-19, June 3, 2002 (suggesting that Defendant withheld keys to
Plaintiff's car in contravention of an order of court). However, the court is of the view
10
Hein, 717 A.2d 1053, 1056 (Pa. Super. Ct. 1998) (finding "willful" discovery violation in
divorce case in which husband refused to make full discovery despite repeated requests
and court orders).
Against this willful misconduct, the court must balance the proposed sanction to
ensure that it "fits the crime." McGovern, 785 A.2d at 1019. In the petitions for discovery
sanctions, Plaintiff proposed that Defendant be charged both with $41,450 of Plaintiff's
personal injury proceeds and with constructive receipt of the rents from all rental
properties.35 With respect to the first proposed sanction, the court is of the opinion that
Plaintiff has not presented sufficient evidence that Defendant failed to provide adequate
answers to those questions dealing with Defendant's investment of the personal injury
proceeds, and that, therefore, this sanction is not warranted. Defendant did provide
responses to those interrogatories dealing with the investment of the personal injury
proceeds, and, although several of these responses indicate that Defendant has no
knowledge of the requested facts or that Plaintiff has equal access to the necessary
records, Plaintiff has not presented evidence that Defendant is intentionally withholding
this information.36 Cf Boyle v. Steiman, 429 Pa. Super. 1, 13, 631 A.2d 1025, 1031
(1993) (stating that discovery should not be compelled when the requested "information
[is] already under the control or readily available to the opposing party"). Because
that these events, most of which occurred several years ago, were not probative on the
question of bad faith with respect to the discovery violation subjudice.
35 E.g., Pl.'s Second Pet. for Disc. Sanctions, filed Dec. 26, 2001.
36 See, e.g., N.T. 67-68. At the hearing on Plaintiff's petitions for discovery sanctions,
Plaintiff testified that she was unsure whether Defendant had retained records of the
disbursements and investments of the personal injury proceeds, see N.T. 58, 62-64, 67-
68, Aug. 22, 2002, that neither of the parties was "organized" in terms of his or her
record-keeping, see N.T. 58, Aug. 22, 2002, and that, although she was a joint owner of
the investment accounts, she had not attempted to obtain the records of those accounts by
contacting the entities that were involved in the investments and whose names she had
previously been provided, see N.T. 59-60, 64, 68, Aug. 22, 2002. Defendant testified that
he had retained no records from the investments and that Plaintiff, as the primary owner
of the accounts used for the investments, was in at least as good a position as Defendant
to request the information from those entities involved. N.T. 38, 68-70, June 3, 2002.
11
Plaintiff has not shown that Defendant's responses to the questions dealing with the
investment of the personal injury proceeds are incomplete, charging him with the receipt
of these proceeds would not be just.
With respect to the second proposed sanction, the court is of the view that it is too
severe in consideration of the limited prejudicial impact of the discovery violation.
Because the sanction would preclude Defendant from offering evidence to rebut
Plaintiff's claims regarding receipt of rental income, it constitutes a serious penalty and
should be imposed only if Plaintiff has suffered or will suffer substantial prejudice from
the violation. Cf. Hein, 717 A.2d at 1056 (stating that sanction precluding testimony is
"serious"). At this time, no proceedings before the divorce master have yet taken place,
and, therefore, the failure to receive timely answers will not adversely affect Plaintiff's
ability to prosecute the merits of her claims. Further, any problems caused by the delay in
receiving the information can be cured by a continuance, a motion for which would likely
be granted in this case. See First Lehigh Bank v. Haviland Grille, Inc., 704 A.2d 135,
139-40 (Pa. Super. Ct. 1997) (stating that continuance should be granted in circumstances
when late disclosure of discovery information would otherwise prejudice a party). As
such, Plaintiff has not yet suffered any substantial prejudice by virtue of the discovery
violation.
However, although the proposed sanctions are too severe at this time, substantial
prejudice could accrue if Defendant is allowed to persist in the discovery violation.37
Accordingly, an appropriate sanction to ensure prompt compliance with Plaintiff's
discovery requests is to provide that, if Defendant fails again to comply with an order of
court compelling discovery, Defendant will, on motion of Plaintiff, be charged with
constructive receipt of the rents from all rental properties.
Accordingly, the petitions for discovery sanctions will be granted to the extent that
Defendant will be ordered to provide, within thirty days, complete responses to each
unanswered inquiry enumerated in the order of court dated October 31, 2001, and, if
37 N.T. 47, Aug. 22, 2002.
12
Defendant fails to do so, Defendant will be charged with constructive receipt of the rents
that would have been received from all four apartments if they had been fully occupied
since July 10, 1996. Because the court is not of the opinion that the "opposition to the
motion was substantially justified or that other circumstances [would] make an award of
expenses unjust," Plaintiff shall be awarded the reasonable expenses, including attorney's
fees, incurred in obtaining the order of court compelling discovery and the order of court
for sanctions. See Pa. R.C.P. 4019(g)(1).
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 7th day of January, 2003, upon consideration of Plaintiff's
petitions for discovery sanctions, and for the reasons stated in the accompanying opinion,
the petitions are granted and it is hereby ordered as follows:
1. Defendant shall, within thirty days from the date of this order,
provide Plaintiff with the information requested in paragraphs 1-7 and 9-10
of the order of court dated October 31,2001.
2. If Defendant does not provide Plaintiff with this information
within thirty days from the date of this order, Defendant shall be charged
with constructive receipt of the rents that would have been received from
all four apartments if they had been fully occupied since July 10, 1996.
3. Defendant shall pay to Plaintiff the reasonable expenses,
including attorney's fees, incurred in obtaining the order of court
compelling discovery and the order of court for sanctions. Within fifteen
days of the date of this order, Plaintiff shall serve on Defendant an itemized
list of all such expenses. Within fifteen days of the date of service of
Plaintiff's list, Defendant shall forward payment for these expenses to
Plaintiff or, if justified, may file objections to the reasonableness of the
expenses as itemized by Plaintiff.
13
4. All other aspects of the order of court dated October 31,2001,
shall remain in full force and effect.
BY THE COURT,
J. Wesley Oler, Jr., J.
Wayne F. Shade, Esq.
53 West Pomfret Street
Carlisle, PA 17013
Attorney for Plaintiff
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
14
JOAN M. BEATTIE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vo
CIVIL ACTION - LAW
WILLIAM H. BEATTIE,
Defendant
NO. 96-2728 CIVIL TERM
IN RE: PLAINTIFF'S PETITIONS FOR DISCOVERY SANCTIONS
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 7th day of January, 2003, upon consideration of Plaintiff's
petitions for discovery sanctions, and for the reasons stated in the accompanying opinion,
the petitions are granted and it is hereby ordered as follows:
1. Defendant shall, within thirty days from the date of this order,
provide Plaintiff with the information requested in paragraphs 1-7 and 9-10
of the order of court dated October 31,2001.
2. If Defendant does not provide Plaintiff with this information
within thirty days from the date of this order, Defendant shall be charged
with constructive receipt of the rents that would have been received from
all four apartments if they had been fully occupied since July 10, 1996.
3. Defendant shall pay to Plaintiff the reasonable expenses,
including attorney's fees, incurred in obtaining the order of court
compelling discovery and the order of court for sanctions. Within fifteen
days of the date of this order, Plaintiff shall serve on Defendant an itemized
list of all such expenses. Within fifteen days of the date of service of
Plaintiff's list, Defendant shall forward payment for these expenses to
Plaintiff or, if justified, may file objections to the reasonableness of the
expenses as itemized by Plaintiff.
4. All other aspects of the order of court dated October 31,2001,
shall remain in full force and effect.
BY THE COURT,
J. Wesley Oler, Jr., J.
Wayne F. Shade, Esq.
53 West Pomfret Street
Carlisle, PA 17013
Attorney for Plaintiff
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant