Bruno v. Elitzky , 515 Pa. 47 ( 1987 )

NIX, Chief Justice,

dissenting.

I dissent from the majority’s conclusion that the instant appeal is interlocutory. While an appeal from an order imposing sanctions may be by nature interlocutory, the sanctions imposed in the instant case preclude appellants from presenting any of the affirmative defenses asserted in their New Matter, thereby effectively putting them “out of court.” Cf. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968); Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967); Posternak v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966); Adcox v. Pennsylvania Manufacturer’s Association Casualty Insurance Co., 419 Pa. 170, 213 A.2d 366 (1965). Moreover, the prevailing party is a sitting judge on the court in which the instant action was brought, a fact which renders strict compliance with general and local rules of procedure especially crucial. These are exceptional circumstances which, in my judgment, justify immediate review.

As to the merits of the instant appeal, it is clear to me that the order imposing sanctions was issued in violation of Philadelphia General Civil Rule 176, which provides:

Rule 176. Procedure as to Uncontested Motions for Sanctions.

1. Where (a) discovery has been ordered as a result of the filing of an Uncontested Motion to Compel or for Sanctions, (b) the defaulting party has served no response whatsoever during the time period provided for by the Order and (c) the moving party seeks sanctions, the moving party shall forward letter notice to the defaulting party, giving at least twenty (20) days notice of his or her intention to obtain such sanctions, which notice shall be substantially in the form attached to this Rule and shall set forth the sanctions which the Court will be requested to impose.

2. If the defaulting party still has not complied with the Order at the expiration of the aforesaid time period, the moving party shall forward to the Court a letter certification of the sending of the notice and the failure to comply, attaching thereto a copy of the notice sent in accordance with Section of this Rule, accompanied by a copy of the original Order entered and a copy of the most current docket entries. The moving party shall serve a copy of this letter certification, together with the said attachments, on all opposing counsel and unrepresented parties and shall indicate this service on the said letter certification.

3. Upon receipt of these documents, the Court shall enter an appropriate Order.

4. A copy of the letter certification and the notice shall be attached to the Order when it is filed.

5. The letter of certification to the Court shall be substantially in the form attached to this Rule.

Rule 176 clearly contemplates that the appropriate initial response to a motion for sanctions for failure to act upon a request for discovery is an order compelling discovery. The further procedures of Rule 176 are triggered when, in spite of such an order, the defaulting party continues to fail to comply. In the instant case no discovery order was even issued, although such an order was requested by the plaintiff as an alternative to striking the New Matter and prohibiting support of the defenses raised therein. The trial court thus ignored Rule 176 and proceeded to immediately impose the severest sanction short of a default judgment.

Local rules are permissible unless they are inconsistent with statewide general rules. See Pa.R.C.P. 239. While this Court could find that Rule 176 is in conflict with Rule 4019 of the Rules of Civil Procedure because the local rule added an unnecessary appendage to the general rule, that question is not before us. The judicial district that promulgated a local rule is surely bound to apply it and cannot be permitted to disregard that rule without taking any steps to eliminate it. Similarly, litigants are entitled to expect that local rules of procedure, once promulgated, will be observed.

For the foregoing reasons I would reverse the order of the Superior Court, vacate the trial court’s order imposing sanctions and remand the cause for further proceedings consistent with the views herein expressed.