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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL HAAS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MARVIN REINERT, :
:
Appellee : No. 1424 MDA 2014
Appeal from the Order Entered June 26, 2014
In the Court of Common Pleas of Berks County
Civil Division No(s).: 09-13193
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 14, 2015
In this vehicle accident case, Appellant/Plaintiff, Michael Hass, appeals
from the order entered in the Berks County Court of Common Pleas granting
summary judgment in favor of Appellee/Defendant, Marvin Reinert.
Appellant challenges the court’s discovery sanctions, which precluded him
from presenting any evidence as to liability or damages at trial. We vacate
the court’s February 25, 2014 and March 11, 2014 sanction orders and the
June 26, 2014 summary judgment order, and remand for the court to
fashion an amended sanction order.
The underlying vehicle accident occurred on October 18, 2007.
According to Appellant, “Appellee was operating a farm tractor which was
*
Former Justice specially assigned to the Superior Court.
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pulling a flat bed wagon carrying a . . . section of a corn bin/silo,” which
“took up both lanes of the two-lane roadway.” Appellant’s Brief at 9.
Appellant was driving “a motorcycle and traveling in the opposite direction,”
“had to take evasive action,” lost “control of his motorcycle and crash[ed]
onto the roadway.” Id.
Appellant commenced this negligence action against Appellee by filing
a praecipe for summons on October 19, 2009,1 and on August 19, 2010,
filed a complaint. The trial court summarized the following pertinent
procedural history:
On July 10, 2013, [Appellee] served [Appellant] a Fourth
Set of Interrogatories seeking information regarding
[Appellant’s] motorcycle experience and training. On
September 24, 2013, [Appellee] served [Appellant] a Fifth
Set of Interrogatories seeking information concerning
[Appellant’s] tax records and wage loss claim. [Appellant]
did not respond to these Interrogatories and [Appellee]
obtained Orders from this Court on December 5 and 6,
2013, directing [Appellant] to answer [Appellee’s]
Interrogatories within 20 days.
Trial Ct. Op., 11/7/14, at 1.
On January 8, 2014, Appellant’s counsel, Andre Michniak, Esq.,
(“Counsel”), who was
aware [Appellant] was in violation of [the] Orders[,]
contacted counsel for [Appellee] to advise [Appellant’s]
discovery responses would be received by January 10,
1
The second-year anniversary of the accident was Sunday, October 18,
2009. Thus, Appellant’s praecipe for summons, filed the following day,
Monday, was timely under the two-year statute of limitations for a
negligence action. See 1 Pa.C.S. § 1908; 42 Pa.C.S. § 5524(2).
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2014, and requested that [Appellee] not file a Motion for
Sanctions until after January 10, 2014. [Appellant] agreed
....
On January 10, 2014, [Counsel] telephoned [Appellee]
to advise [Appellant’s] discovery responses would now be
sent on January 13, 2014, and again requested that
[Appellee] not file a Motion for Sanctions. Defense counsel
again agreed. On January 31, 2014, still having received
no response to [his] requests, [Appellee’s] counsel filed a
Motion for Sanctions, which [Appellant] did not respond to,
and this Court granted by Order dated February 25, 2014,
precluding [Appellant] from introducing any
testimony or evidence at the time of Arbitration
and/or trial on the issue of liability. [Appellee] filed a
second Motion for Sanctions, to which [Appellant] also
failed to respond, and this Court granted by Order dated
March 11, 2014, precluding [Appellee] from offering
any testimony or evidence at the time of Arbitration
and/or trial on the issue of damages.
Id. at 4 (emphases added).
In granting Appellee’s motions for sanctions, the trial court applied the
four-part test set forth in City of Phila. v. Fraternal Order of Police
Lodge No. 5, 985 A.2d 1259 (Pa. 2009) (“FOP Lodge”). It found: (1)
Appellant’s failure to respond to Appellee’s discovery requests resulted in
“substantial” prejudice to Appellee; (2) Appellant acted willfully and in bad
faith in failing to provide the requested discovery; (3) the precluded
evidence and testimony was “of the utmost importance to [Appellee’s
case];” and (4) the court provided Counsel “ample times in the instant
action and other actions to comply with the time limits and orders issued,”
and in “numerous actions involving [Counsel,] nearly all deadlines and
orders issued by [the] Court have been willfully ignored without a credible
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explanation[.]” Trial Ct. Op. at 3-5.
On April 17, 2014, Appellee filed a motion for summary judgment. On
May 19th, Appellant filed a timely response2 and, for the first time,
acknowledged before the court the Fourth and Fifth Sets of interrogatories
by filing a motion to reconsider the orders imposing the discovery sanctions.
The court denied Appellant’s motion for reconsideration on May 21st. On
June 26th, it granted Appellee’s motion for summary judgment and
dismissed Appellant’s compliant with prejudice. Appellant took this timely
appeal3 and complied with the court’s order to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.
Appellant presents one issue for our review: whether the trial court
abused its discretion in failing to hold a hearing and in imposing the
2
The thirtieth day after Appellee’s notice of his motion for summary
judgment was Saturday, May 17, 2014. See Pa.R.C.P. 1035.3(a) (requiring
adverse party to file response to motion for summary judgment within thirty
days after service of motion). Thus, Appellant’s response, filed on Monday,
May 19th, was timely. See Pa.R.C.P. 106(b) (“Computation of Time”).
Furthermore, we note that after Appellant was granted an extension to
file an appellate brief, he filed one five days late. Appellee filed a motion to
quash this appeal, and Appellant did not respond. A per curiam order by
this Court denied the motion without prejudice for Appellee to raise this
issue before the merits panel. Appellee has not re-raised this issue.
3
Although the text of the order granting summary judgment stated a date of
June 26, 2014, it was not time-stamped as “filed” and entered on the docket
until July 21st. Notice was not given until July 25th. Appellant thus
generally had thirty days from the notice date, or until Sunday, August 24th,
to take an appeal. See Pa.R.C.P. 236(a)(2)(b). His notice of appeal filed
Monday, August 25th, was thus timely. See Pa.R.C.P. 106(b).
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discovery sanctions. Appellant challenges the court’s findings under the
four-part FOP Lodge test, arguing the following. First, the prejudice to
Appellee “has been minimal to none.” Appellant’s Brief at 15. Appellant was
deposed by Appellee’s counsel for 3 hours, and Appellant in total provided
800 pages of discovery. Appellee did not explain how the lack of “answers
to the six questions posed in the two sets of interrogatories” “amounted to a
‘substantial diminution’ of [his] ability to properly present his case.” Id. at
16. Second, while Appellant does not deny there was a “violation of the
discovery rules,” he maintains there was no “willfulness or bad faith in his
non-compliance.” Id. at 20. Instead, his brief contends, Counsel had
“significant family-related problems, including his being responsible for the
care of his 90-year old mother who was seriously ill with Alzheimer’s Disease
and who subsequently passed away and also having to deal with the serious
illness of another family member.”4 Id. at 19.
Third, Appellant concedes “there were several violations of discovery
deadlines based upon personal issues raised by [his] counsel.” Id.
However, Appellant alleges, “the circumstances of this case are very
different from those” in cases in which “the appellate courts have [upheld]
the severest of discovery sanctions—preclusion of all evidence and testimony
on liability and damages at trial or outright dismissal.” Id. Next, Appellant
4
In the motion for reconsideration, Counsel stated his “deal[ing] with family
illnesses and having to care for his 90-year old mother . . . has affected
[C]ounsel in other cases.” Appellant’s Mot. for Recons., 5/19/14, at ¶ 36.
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reasons the trial court could have sanctioned him by deeming his failure to
answer the Fourth Set of Interrogatories as admissions that he had no
motorcycle training. With respect to the Fifth Set of Interrogatories,
Appellant avers he gave Appellee “written authorizations for the release of
his tax records” from the Internal Revenue Service (“IRS”), and it was the
IRS who would not release certain records. Id. at 22. Appellant also claims
Counsel “orally advised” Appellee’s counsel that Appellant would not bring “a
claim for loss of future wages and/or diminution of earning capacity, and
therefore the production of any of [his] tax records was not relevant to
Appellant’s claims for damages.” Id. at 23. Appellant reasons the court
could have sanctioned him by barring any claim for past and future wage
loss or diminution of earning capacity. Accordingly, Appellant concludes, the
court’s sanctions do “not ‘fit the crime.’” Id. at 22.
Finally, Appellant complains the trial court did not hold a hearing,
develop a record, or “analyze whether [his] non-compliance occurred in light
of the [FOP Lodge] standards.” Id. at 18. Appellant contends the court’s
comments about his counsel are “very mistaken”5 and “troubling” because
5
Specifically, the brief avers:
Counsel believes that there were two prior cases involving
this trial court in which counsel did not meet discovery
deadlines. In one, the reason was due to a partnership
dissolution in counsel’s practice which temporarily
seriously disrupted counsel’s practice, and in the other, it
was because of the sudden death of a 19 year old family
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“the allegations are not a part of the record in this case[ but] cast counsel in
a very negative light.” Id. We agree that relief is due.
Generally, we review a discovery order and an order imposing
sanctions under an abuse-of-discretion standard. St. Luke’s Hosp. of
Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa. Super. 2014) (“St. Luke’s
Hosp.”). However, this Court has stated, in review of an “order granting
summary judgment [that] was premised upon a sanction order precluding
[the plaintiffs] from introducing expert testimony on the issue of [the
defendant doctor’s] malpractice:”
[W]hen a discovery sanction is imposed, the sanction must
be appropriate when compared to the violation of the
discovery rules. Presently, the sanction is tantamount to
dismissal of the action since it resulted in summary
judgment being granted based on [the plaintiffs’] inability
to present expert testimony and thereby to establish that
[the defendant doctor’s] treatment fell below the
applicable standard of care. Accordingly, we strictly
scrutinize the appropriateness of the sanction as it
produces the harshest result possible and should be
imposed only in extreme circumstances.
Steinfurth v. LaManna, 590 A.2d 1286, 1288 (Pa. Super. 1991) (citations
omitted).
Pennsylvania Rule of Civil Procedure 4019, governing sanctions,
provides that a court “may, on motion,” enter “an order refusing to allow the
member and the serious illnesses of counsel’s parents.
Neither of these situations could be categorized as being
“willful” or involving “bad faith.”
Appellant’s Brief at 18.
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disobedient party to support or oppose designated claims or defenses, or
prohibiting such party from introducing in evidence designated documents,
things or testimony . . . .” Pa.R.C.P. 4019(c)(2).
In FOP Lodge, our Supreme Court stated:
[T]rial and appellate courts . . . should examine [the
following factors] before determining the general severity
and vitality of a discovery sanction: (1) the prejudice, if
any, endured by the non-offending party and the ability of
the opposing party to cure any prejudice; (2) the
noncomplying party’s willfulness or bad faith in failing to
provide the requested discovery materials; (3) the
importance of the excluded evidence in light of the failure
to provide the discovery; and (4) the number of discovery
violations by the offending party. In applying these factors
to appeals where a trial court dismissed an action for
noncompliance with a discovery order, the Superior Court
has consistently placed greater emphasis on the first two
factors: (1) the prejudice to the non-offending party and
the ability to cure that prejudice; and (2) the willfulness of
the offending party’s conduct.
FOP Lodge, 985 A.2d at 1270-71 (citations omitted).
Although the trial court did not dismiss the instant action, its sanction
orders precluded Appellant from presenting any evidence as to liability or
damages, and thus provided a basis for granting summary judgment in favor
of Appellee. Accordingly, “we strictly scrutinize the appropriateness of the
sanction” orders, and agree with the trial court that the four-part test of
FOP Lodge is appropriate. See Steinfurth, 590 A.2d at 1288.
The first and third prongs of the FOP Lodge test are the prejudice, if
any, to the non-offending party and the importance of the excluded
evidence. Id. at 1270. The trial court opined as follows. “First, the
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prejudice endured by [Appellee] is substantial.” Trial Ct. Op. at 3. The
requested information—Appellant’s motorcycle experience and training and
tax records—were “vital to the preparation of a meaningful defense.” Id.
“Without this information [Appellee] cannot ascertain [Appellant’s] damages
or even whether liability may actually be attributed to” Appellee. Id.
Appellee’s interrogatories “were not overly burdensome or irrelevant,” and
“[t]o the contrary” were “standard request[s] when compared to other cases
with similar facts.” Id. Appellant “could have easily provided answers to
these interrogatories within the time provided, which he did not, thereby
forcing [Appellee] to file motions . . . resulting in the sanctions imposed and
ultimately, a grant of summary judgment for” Appellee. Id.
Preliminarily, we note Counsel failed to respond to not only the
interrogatories at issue, but also Appellee’s two motions to compel answer
to the interrogatories, the two motions for sanctions, and the court’s two
sanction orders. Furthermore, while we understand attorneys will
experience family or personal issues while litigating a matter, Counsel does
not assert he initially advised the trial court of his personal obligations or
requested additional time to respond to the interrogatories.6 Nevertheless,
6
As stated above, Counsel advised the court of his family obligations and
issues in Appellant’s motion to reconsider, which was filed after Appellee’s
motion for summary judgment. See n.4, supra. On appeal, Appellant does
not address the trial court’s reasoning that “had [Counsel] taken the time to
respond to the discovery motions . . . this Court would have scheduled a
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after careful review, we find the court’s prohibition of Appellant from
presenting any evidence as to liability and damages is “disproportionate to
the default at issue.” See Steinfurth, 590 A.2d at 1289.
It is undisputed that, despite repeated efforts by Appellee, Appellant
failed to respond to the Fourth and Fifth Interrogatories. However, Appellant
had responded to the first three interrogatories and submitted to deposition
by Appellee. Furthermore, the Fourth Interrogatory set forth a mere four
questions, all regarding Appellant’s motorcycle experience: (1) the year,
make, and model number of all motorcycles Appellant had ridden prior to
the accident, (2) any motorcycle training or testing taken Appellant, (3) any
training specifically on a Honda CBR900RR Firebrand motorcycle, and (4) the
number of times Appellant previously operated this model Honda
motorcycle. We disagree that the lack of this information wholly precludes
Appellee from determining or showing “whether liability may actually be
attributed to” Appellee. See Trial Ct. Op. at 3.
Furthermore, the Fifth Interrogatory was comprised of one question
and one request for documents. First, the interrogatory explained that
Appellee had subpoenaed the IRS for Appellant’s tax records, but the IRS
responded it was unable to provide all or some of the requested documents.
The interrogatory then asked Appellant to “explain why the IRS was unable
hearing and given [C]ounsel an opportunity to explain his failure to provide
discovery, but he did not.” See Trial Ct. Op. at 5.
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to comply with [its] subpoena,” and requested Appellant to “provide copies
of any and all documents received from the IRS in response to [Appellee’s]
subpoena.” Appellee’s Fifth Set of Interrogatories, undated, at 3. We note
Appellant’s present claim that Counsel had “orally advised” Appellee’s
counsel that Appellant would not bring “a claim for loss of future wages
and/or diminution of earning capacity, and therefore the production of any of
[his] tax records was not relevant to Appellant’s claims for damages.” Id. at
23. While this renouncement of such claims was not reduced to writing, we
likewise find the court’s preclusion of any evidence of damages—including,
for example, medical or motorcycle repair bills—is disproportionate to
Appellant’s failure to respond to the Fifth Interrogatory.
In light of the foregoing, we vacate the court’s February 25, 2014
order precluding Appellant from presenting any evidence as to liability and
the March 11, 2014 order precluding Appellant from presenting any evidence
on the issue of damages. We remand for the trial court to enter an
amended sanction order that implements the FOP Lodge factors and the
reasoning of this memorandum. See FOP Lodge, 985 A.2d at 1270-71.
The court may hold a hearing or take other action it deems necessary.
Furthermore, we vacate the order granting summary judgment for Appellee.
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Discovery sanction orders of February 25, 2014 and March 22, 2014
vacated. Summary judgment order of June 26, 2014 vacated. Case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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