The Pennsylvania motion to compel: winning earns you nothing, losing costs you

Pennsylvania's fee provision runs the opposite way from almost every other state's, and it does so twice over.

There are no fees for winning a motion to compel. Rule 4019(g)(1) makes expenses available only on a subsequent motion, after the court has already entered an order compelling compliance and that order has been disobeyed.

And when a sanctions motion is made, the asymmetry is against the moving party: "may" if it is granted, "shall" if it is denied.

Filing in Pennsylvania is therefore a decision with a one-sided cost. Get the sequence right.

The two-step structure

Pa. R. Civ. P. 4019(g)(1):

Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motions or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney's fees, incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Read the sequence the rule requires:

The consolation is in that last phrase. When fees finally do become available, they cover both motions — "the reasonable expenses… incurred in obtaining the order of compliance and the order for sanctions." Nothing is lost by the delay, but nothing is recoverable until step 5.

The provision that runs against you

Rule 4019(g)(2):

If the motion for sanctions is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

Mandatory against the movant, discretionary in the movant's favor. Substantial justification is the escape, and it is worth building the record for it before filing — the correspondence, the conference, the specific deficiency.

Rule 4019(g)(3) allows apportionment where the motion is granted in part and denied in part.

Bad faith carries a procedural bar, not just a bill

Rule 4019(h) is unusual enough to read twice:

If the filing of a motion or making of an application under this chapter is for the purpose of delay or in bad faith, the court may impose on the party making the motion or application the reasonable costs, including attorney's fees, actually incurred by the opposing party by reason of such delay or bad faith. A party upon whom such costs have been imposed may neither (1) take any further step in the suit without prior leave of court so long as such costs remain unpaid nor (2) recover such costs if ultimately successful in the action.

Two consequences beyond the money. While the costs remain unpaid, the party may not take any further step in the suit without leave of court — the case effectively stops for them. And they cannot recover those costs even if they ultimately win.

What supports a motion

Rule 4019(a)(1):

The court may, on motion, make an appropriate order if

(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005; (ii) a corporation or other entity fails to make a designation under Rule 4004(a)(2) or 4007.1(e); (iii) a person, including a person designated under Rule 4004(a)(2) to be examined, fails to answer, answer sufficiently or object to written interrogatories under Rule 4004; (iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take the deposition; (v) a party or deponent, or an officer or managing agent of a party or deponent, induces a witness not to appear; (vi) a party or an officer, or managing agent of a party refuses or induces a person to refuse to obey an order of court made under subdivision (b) of this rule requiring such party or person to be sworn or to answer designated questions or an order of court made under Rule 4010; (vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested; (viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.

Two features stand out.

Pennsylvania has no "evasive or incomplete" clause — instead the standard is written into the grounds themselves: a failure to serve "sufficient answers" (i), or to "answer sufficiently" (iii), is a ground in its own right. Same effect, different drafting, and the phrase to quote is "sufficient answers."

Inducing a witness not to appear is its own ground under (v), and (vi) reaches a party who "refuses or induces a person to refuse" to obey a court order. Few states name inducement expressly.

And (viii) is a catch-all: "otherwise fails to make discovery or to obey an order of court respecting discovery."

Objecting is not optional

Rule 4019(a)(2):

A failure to act described in subdivision (a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.

Silence is not a defense. If you think the discovery is improper, you must have filed an objection or applied for a protective order. This is the movant's strongest point against a party that simply did nothing — and the reason to put something on file inside the response period.

Depositions have their own route

Rule 4019(b):

If a deponent refuses to be sworn or to answer any question, the deposition shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to all persons affected thereby, the proponent may apply to a proper court in the county where the deposition is being taken or to the court in which the action is pending, for an order compelling the witness to be sworn or to answer, under penalty of contempt, except that where the deposition of a witness not a party is to be taken outside the Commonwealth, the application shall be made only to a court of the jurisdiction in which the deposition is to be taken.

The deposition "shall be completed on other matters or adjourned" — you must do one or the other, at your election, before applying.

The sanctions available

Rule 4019(c) lets the court make:

(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; (4) an order imposing punishment for contempt, except that a party may not

The list continues with "(5) such order with regard to the failure to make discovery as is just."

Two Pennsylvania touches: a judgment of non pros appears alongside default in (3), and both (3) and the contempt power reach "the party advising the disobedience" as well as the party itself. The contempt exception is for a refusal to submit to a physical or mental examination under Rule 4010.

Three separate expense provisions worth knowing

Rule 4019(d) — the cost of a wrongful refusal to admit:

If at the trial or hearing, a party who has requested admissions as authorized by Rule 4014 proves the matter which the other party has failed to admit as requested, the court on motion may enter an order taxing as costs against the other party the reasonable expenses incurred in making such proof, including attorney's fees, unless the court finds that

(1) the request was or could have been held objectionable pursuant to Rule 4014, or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (4) there was other good reason for the failure to admit.

Note exception (1) is broader than most states': the request need only have been one that "was or could have been held objectionable."

Rule 4019(e) — the party who notices a deposition and does not turn up may be ordered to pay the expenses of those who did.

Rule 4019(f) — the party who notices a deposition and fails to serve a subpoena, so the witness does not attend, may be ordered to pay the expenses of those who attended expecting it.

Both are worth remembering: they are recoverable without any of the two-step structure that governs compelling discovery.

Before you file

1. Confirm the discovery was properly served and the response period has run — see Pennsylvania discovery deadlines, which also covers Rule 4003's scope and the objection mechanics.
2. Check whether anything was filed at all. Rule 4019(a)(2) is your strongest point if not.
3. Point to "sufficient answers" where the response was thin rather than absent.
4. Expect no fees on the first motion. Plan for the two-step sequence.
5. Build the substantial-justification record before filing, because a denied sanctions motion carries a mandatory award against you.

How Pennsylvania compares

A short checklist

1. Plan the two steps. Order first, then a sanctions motion if it is disobeyed. Fees arrive only at the second stage.
2. Do not file a weak motion. A denied sanctions motion means a mandatory award against you.
3. Quote Rule 4019(a)(2) where the other side filed neither an objection nor a protective order application.
4. Use "sufficient answers" — Pennsylvania's equivalent of the evasive-answer rule.
5. Pick the right court for a deposition dispute, and remember an out-of-state non-party deposition goes only to the court where it is taken.
6. Complete or adjourn the deposition before applying.
7. Ask for both motions' expenses once you reach the sanctions stage — the rule allows it.
8. Consider 4019(d), (e) and (f) — refusal to admit, a no-show noticing party, and a missing subpoena all carry their own expense remedies.

Where these rules live

• Pa. R. Civ. P. 4005 — Written Interrogatories to a Party
• Pa. R. Civ. P. 4009.1 — Production of Documents and Things. General Provisions
• Pa. R. Civ. P. 4009.11 — Request Upon a Party for Production of Documents and Things
• Pa. R. Civ. P. 4014 — Request for Admission
• Pa. R. Civ. P. 4019 — Sanctions

This page explains what the rules say. It isn't legal advice, and what makes an opposition substantially justified is developed in case law this site doesn't cover.