
    McCormack v. The Pennsylvania Railroad Co.
    (No. 2)
    
      
      Richter, Lord & Levy, for plaintiff.
    
      Barnes, Dechert, Price, Myers & Rhoads, for defendant.
    April 28, 1958.
   Alessandroni, P. J.,

Defendant, proceeding under rule 4003 (a) (2), filed written interrogatories to be exhibited to and answered by three doctors who had treated plaintiff. It does not appear whether or not the treatment concerned injuries which arose out of the subject matter of this trespass action. Pa. R. C. P. 4003(a) (2) provides for the taking of the testimony either by written interrogatories or oral deposition for use in open court, of a witness who is more than 100 miles from the courthouse.

Plaintiff petitioned for and' obtained a rule upon defendant to show cause why the interrogatories should not be stricken. Plaintiff’s petition and rule are based on an opinion and order of this court, dated April 7, 1958, 15 D. & C. 2d 483, wherein discovery proceedings on behalf of defendant were attempted after pretrial conference was had. It was there held that the certificates required to be filed to list a case for a pretrial conference precluded further discovery without leave of court being first obtained. In that proceeding defendant had neither sought nor obtained leave of court and the interrogatories were stricken.

Rule 4003 is not a discovery rule; it is a rule for obtaining testimony for use in court. Such a proceeding is not within the certification required by Pretrial Regulation P-11. Plaintiff argues that although rule 4003 is not a discovery rule, that discovery is defendant’s purpose, and therefore defendant is bound by our previous order.

The language of rule 4003 does not support plaintiff’s position; its language confers the privilege of taking depositions under the circumstances therein set forth as of right. In the absence of an affirmative showing of a present intention to pervert the rules of court, or to use the rules to harass a party, defendant is entitled to proceed under rule 4003.

Order

And now, to wit, April 28, 1958, plaintiff’s rule upon defendant to show cause why the interrogatories should not be stricken, is discharged.  