Nowosielski v. Kryzosiak

SPAETH, Judge,

dissenting:

In Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1094 (1979), this court was confronted with a case involving a violation of a pre-trial conference order entered pursuant to Pa.R.Civ.P., No. 212. That rule did not provide any specific mandatory sanction for violation of an order; the sanction to be imposed was within the discretion of the trial judge. Accordingly, in Gill, this court discussed some of the factors that a trial judge should consider before exercising his discretion to impose the drastic sanction of excluding a witness from testifying. And see Saks v. Jeanes Hospital, 268 Pa.Super. 578, 408 A.2d 1153 (1979) (as case arose before effective date of Rule 4019(i), sanction was discretionary).

In the present case, however, the Allegheny County Local Rule specifically provides that “[witnesses . . . whose reports have not been furnished . . . will not, under any circumstances whatsoever, be permitted to testify at the subsequent trial of the case.” Thus, the sanction of excluding the witness’s testimony was not discretionary, as in Gill, but mandatory, required in all cases and “under any circumstances whatsoever.” Gill, therefore, is inapposite, and by relying on it, the majority has rewritten the local rule and transformed a mandatory sanction into a discretionary one.

In my opinion we should not rewrite the rule but should require the lower court to apply it as the lower court has written it. Since here the lower court failed to apply its own rule, its judgment should be reversed and appellants granted a new trial.