Matusow Manufacturing Co. v. Weinraub

-Plaintiff has petitioned for a rule on defendants to show cause why they should not produce and plaintiff be permitted to make *97copies of all orders and invoices given by defendants to Emanuel Steinberg, of all invoices given to defendants by Steinberg, as well as the purchase records, books of original entry, inventory records, cash • disbursement vouchers, checks payable to Steinberg or to cash, sales records, and all other pertinent records which will show the dates, identity or quality, quantity and prices of all sales, and all deliveries of plaintiff’s merchandise to defendants during the years of 1948, 1949, 1950 and 1951.

Plaintiff’s petition avers that the information is necessary in order that he may prepare his bill. The action was started by a summons in equity dated February 3,1952. To this petition defendants filed an answer raising questions of law. The rule to produce was made absolute. Defendants filed exceptions to the order.

The gravamen of defendants’ exceptions is that it would be equivalent to the ordering of an accounting without bill, answer and hearing and, further, that defendants should be given an opportunity to answer plaintiff’s petition on the merits. Since paragraph 10 of plaintiff’s petition avers that it will seek an accounting, defendants’ point is well taken. A bare averment that the information sought is in the exclusive possession of defendants is insufficient in and of itself to warrant such an order, when such is denied by defendants. Plaintiff cannot obtain an accounting by means of an order to produce under rule 35: Baker v. Fowler, 24 Luz. 3.

Defendants can make an answer to the petition for the order to produce, if necessary, setting forth facts why the examination should be denied or limited, and the matter presented to the court on petition and answer: 8 Standard Pa. Practice 149.

Order

And now, to wit, June 2,1952, the order dated April 18,1952, making plaintiff’s rule to show cause absolute *98is vacated; defendants are ordered to file an answer on the merits to plaintiff’s petition within 20 days from date hereof.