
    Berg v. Levenberg
    (No. 2)
    
      Sidney B. Berg, for plaintiff.
    
      William K. Ravetz, for defendant.
    April 21, 1959.
   Flood, P. J.,

We do not see how we can grant the prayer of plaintiff’s motion. He asks us to grant him leave to file his complaint for commissions due (1) as reflected by audit and partial verification thus far in the amount of $10,622.48, and (2) on estimated sales of $400,000, because of missing charge accounts and C. O. D. ledger books, and partial disclosure of other accounts.

As to (1) he can of course file such a complaint, without leave of court, on information and belief. As to (2) his remedy would seem to be to request an account, as he may do under Pa. R. C. P. 1021. This rule clearly gives him the right to ask for a verdict as to the part of his claim which he is then in a position to prove, and an accounting as to the balance.

We take it from his brief that plaintiff may be asking us for an adjudication in advance of trial on the merits of his case because of defendant’s alleged refusal to comply with Julge Bok’s order to allow the inspection of his books. He cites 4 Goodrich-Amram Civ. Pract. §4019 (a) -7, to the effect that when defendant refuses to produce its sales records, the court may find that the sales made by plaintiff and the commissions due him are as he claims. Assuming that this might be so on a flat refusal to produce records, it seems to us obviously inappropriate where defendant produces voluminous sales records, even though they are incomplete, if defendant has a plausible explanation for their nonproduction. We think this case should take the ordinary course, and that plaintiff should seek an account for such amounts as he cannot prove on the basis of his inspection of the books.

Plaintiff is in effect, if we understand his argument correctly, asking us to decide an action for accounting on depositions. Our Common Pleas Rule *1038 sets forth the method in which such a question should be decided. We think that a disposition of such matters on deposition in.advance of trial would be an unwise procedure and we are not disposed to adopt it.

The motion is dismissed.  