J-A28031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TONEY DAVIS, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
VENITA SHOWELL, ADMINISTRATRIX OF
THE ESTATE OF WEBSTER H. KILSON,
Appellee No. 3806 EDA 2015
Appeal from the Order December 14, 2015
in the Court of Common Pleas of Delaware County
Civil Division at No.: 14-10767
BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 16, 2016
Appellant, Toney Davis, appeals from the trial court’s order granting
summary judgment in favor of Appellee, Venita Showell, Administratrix of
the Estate of Webster H. Kilson. Specifically, she challenges the court’s
order precluding her from presenting evidence at trial as a sanction for her
discovery violation, which resulted in the later grant of summary judgment
against her. We affirm the motion for sanctions in part, vacate in part,
vacate the order granting summary judgment, and remand for the
imposition of appropriate sanctions.
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*
Retired Senior Judge assigned to the Superior Court.
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We take the following facts from the trial court’s December 14, 2015
opinion and our independent review of the record.
Appellant initiated this lawsuit against Appellee on December 4, 2014
for injuries she allegedly suffered on July 9, 2013 on Appellee’s premises.
On February 5, 2015, Appellee sent Appellant interrogatories and a request
for production of documents. On February 23, 2015, before receiving the
discovery responses, Appellee filed an answer to the complaint.
On April 15, 2015, when she did not receive the discovery responses,
Appellee filed a motion to compel. On April 23, 2015, the trial court granted
the motion, and ordered Appellant to provide full and complete discovery
responses within twenty days of the order, or suffer the imposition of
sanctions upon Appellee’s further application to the court.
On June 12, 2015, Appellee filed a motion for sanctions due to
Appellant’s continued failure to comply with the court’s April 23, 2015 order.
Appellant did not respond to the motion for sanctions, and, on July 14, 2015,
the trial court granted the motion and precluded Appellant “from presenting
at trial any witnesses, testimony or evidence relating to information
requested in [Appellee’s] [i]nterrogatories and [r]equest for [p]roduction of
[d]ocuments and the allegations appearing in [Appellant’s] [c]omplaint.”
(Order, 7/14/15). The next day, July 15, 2015, Appellant emailed two
hundred and fifty pages of discovery responses to Appellee.
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On July 22, 2015, Appellant filed a motion for reconsideration of the
court’s July 14, 2015 order, in which she stated that she had not responded
to the motion to compel due to her counsel’s administrative oversight. (See
[Appellant’s] Motion for Reconsideration, 7/22/15, at unnumbered page 1 ¶
5). On July 24, 2015, Appellee responded to the motion for reconsideration
asserting that the discovery responses received on July 15, 2015 were not
full and complete, and thus Appellant failed to comply with the April 23,
2015 court order. (See [Appellee’s] Response to [Appellant’s] Motion for
Reconsideration, 7/24/15, at unnumbered page 2 ¶ 5). On November 30,
2015, the trial court denied Appellant’s motion for reconsideration because
of her failure to provide discovery in this case, and her counsel’s “course of
conduct” in violating the discovery rules and orders in “numerous other
cases.” (Order, 11/30/15).
On July 24, 2015, Appellee filed a motion for summary judgment. On
December 14, 2015, after receiving Appellant’s response, the trial court
granted Appellee’s motion for summary judgment because, as a result of the
court having granted the sanctions order, Appellant would be “unable to
adduce sufficient evidence on all issues essential to her case on which she
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bears the burden of proof.” (Trial Court Opinion, 12/14/15, at 3). Appellant
timely appealed.1
Appellant raises three questions for our review.
1. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly granted
[Appellee’s] motion for sanctions and precluded [Appellant] from
entering evidence at trial?
2. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly denied
[Appellant’s] motion for reconsideration?
3. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly granted
[Appellee’s] motion for summary judgment?
(Appellant’s Brief, at 10) (unnecessary capitalization omitted).
Appellant’s issues challenge the court’s grant of Appellee’s motion for
sanctions, the preclusion of her evidence at trial, and the resulting grant of
Appellee’s motion for summary judgment. (See id.).
We will first address the propriety of the trial court’s grant of the
motion for sanctions. “Discovery sanctions are appropriate where a party
‘fails to make discovery or to obey an order of court respecting discovery.’
Pa.R.Civ.P. 4019(a)(1)(viii). The decision to sanction a party is a matter
vested in the sound discretion of the trial court.” First Lehigh Bank v.
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1
The trial court did not order Appellant to file a statement of errors
complained of on appeal, but it filed an opinion on December 21, 2015. See
Pa.R.A.P. 1925.
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Haviland Grille, Inc., 704 A.2d 135, 139 (Pa. Super. 1997) (case citation
omitted).
In the case sub judice, our review of the certified record reveals that
Appellee served Appellant with discovery requests on February 5, 2015,
approximately two months after Appellant commenced this personal injury
action. (See [Appellee’s] Motion to Compel [Appellant’s] Answers to
Interrogatories and Responses to Request for Production of Documents,
4/15/15, at 1 ¶ 2; id. at Exhibit A). On April 15, 2015, because Appellant
failed to produce the requested discovery responses, Appellee filed a motion
to compel production. The court granted the motion on April 23, 2015, and
directed Appellant to answer Appellee’s discovery requests within twenty
days or suffer possible sanctions. (See Order, 4/23/15). On June 12, 2015,
Appellee filed a motion for sanctions for Appellant’s failure to comply with
the court’s order to produce discovery.2 (See Motion for Sanctions,
6/12/15, at 2 ¶ 7).
Based on the foregoing chronology, we conclude that the trial court
properly found that sanctions were appropriate because Appellant failed to
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2
Appellant argues that Appellee improperly filed the motion for sanctions
because she could have chosen an alternative course of action. (See
Appellant’s Brief, at 15-16). However, she fails to provide any legal
authority in support of this argument. (See id.); Pa.R.A.P. 2119(a)-(b).
Therefore, it is waived. See Rettger v. UPMC Shadyside, 991 A.2d 915,
932 (Pa. Super. 2010) (finding failure to cite any legal authority in support
of analysis resulted in waiver).
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provide discovery responses and to comply with the court’s order respecting
same. See First Lehigh Bank, supra at 139; Pa.R.C.P. 4019(a)(1)(viii).
Therefore, Appellant’s first issue lacks merit.
We next turn to Appellant’s second argument, that the trial court erred
or abused its discretion when it imposed the sanction of precluding her from
presenting evidence at trial. (See Appellant’s Brief, at 16-21).
It is well-settled that “the purpose of the discovery rules is to prevent
surprise and unfairness and to allow a fair trial on the merits.” McGovern
v. Hosp. Serv. Ass’n. of Northeastern Penn., 785 A.2d 1012, 1015 (Pa.
Super. 2001) (citation omitted). “As we have cautioned in the past, it is
clear that in the exercise of judicial discretion in formulating an appropriate
sanction order, the court is required to select a punishment which ‘fits the
crime.’” Estate of Ghaner v. Bindi, 779 A.2d 585, 590 (Pa. Super. 2001)
(citation and some internal quotation marks omitted). Where a discovery
sanction results in the effective dismissal of a case, our standard of review is
stringent. See Anthony Biddle Contractors, Inc. v. Preet Allied Am.
St., LP, 28 A.3d 916, 926 (Pa. Super. 2011). “[The Pennsylvania Supreme
Court] highly disfavor[s] dismissal of an action, whether express or
constructive, as a sanction for discovery violations absent the most extreme
of circumstances.” City of Phil. v. Frat. Order of Police Lodge No. 5
(Breary), 985 A.2d 1259, 1270 (Pa. 2009) (citations omitted).
As explained by our Supreme Court:
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[P]arties are technically deprived of their procedural due process
rights under the Fourteenth Amendment when they are not
afforded full opportunities to present evidence before a court.
Identical considerations must be given under Article I, Section 1
of the Pennsylvania Constitution as well. Accordingly, . . . trial
courts . . . must carefully weigh multiple aspects of a case before
concluding that dismissal of an action, whether explicitly or
constructively through the exclusion of evidence, is a proper
remedy for a discovery violation.
* * *
While our jurisprudence in this area is somewhat limited,
the Superior Court has had the opportunity to develop and apply
four similar factors that it concludes trial and appellate courts
alike should examine 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. See, e.g., Stewart v. Rossi, 452
Pa.Super. 120, 681 A.2d 214, 217 (1996), appeal denied, 689
A.2d 235 (Pa. 1997) (holding that because “dismissal is the most
severe sanction, it should be imposed only in extreme
circumstances, and a trial court is required to balance the
equities carefully and dismiss only when the violation of the
discovery rules is willful and the opposing party has been
prejudiced.”).
Id. at 1270-71 (most citations omitted; some citation formatting provided).
Based on the foregoing legal principles and the discovery violation
before us in this case, we are constrained to conclude that the trial court
abused its discretion when it failed to “select a punishment which ‘fits the
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crime.’” Estate of Ghaner, supra at 590; see Anthony Biddle
Contractors, Inc., supra at 926.
First, after examining the record, we cannot conclude that Appellee
has suffered the severe level of prejudice required for the sanctions imposed
on Appellant. During the initial few months of litigation, Appellant failed to
produce responses to the first set of interrogatories and request for
production of documents when requested and ordered to do so. This was
Appellant’s first and only discovery violation in this case and it the only basis
of Appellee’s motion for sanctions. (See Motion for Sanctions, 6/12/15, at
unnumbered pages 1 ¶ 4, 2 ¶ 7). This early in the litigation, it can hardly be
said that Appellant’s violation involves the extreme circumstances and
prejudice to Appellee required for total evidence preclusion. See Frat.
Order of Police Lodge No. 5, supra at 1270; compare, e.g., Stewart,
supra at 218-19 (concluding defendant suffered sufficient prejudice to
justify total preclusion where he was unable to prepare defense, because for
years, plaintiff failed to respond to discovery requests, produce names of
fact and expert witnesses, provide any expert reports, or conduct
depositions).
Also, when the court imposed the discovery sanction, this case had
only been active for approximately seven months. One day after the court
entered its order, Appellant produced two hundred and fifty pages of
documents. Although Appellee complains that the discovery produced was
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not full and complete, it is not of record, and we cannot, on Appellee’s
allegation alone, conclude that Appellant failed to cure any potential
prejudice with her production. Therefore, it appears that, although the
parties disagree about the quality of the discovery produced, any prejudice
experienced by Appellee as a result of Appellant’s late discovery production
either was remedied by the responses, or easily can be cured upon remand.
See Estate of Ghaner, supra at 590 (concluding imposing sanction of
evidence preclusion for party’s discovery violation of failing to produce
pretrial statement pursuant to Pa.R.C.P. 212.2 was abuse of discretion
where violation curable on remand).
Second, based on the evidence of record in the instant case, we
cannot conclude that Appellant’s actions were willful or in bad faith. Counsel
consistently maintained that the discovery violation was not intentional, but
instead was the product of administrative oversight. (See [Appellant’s]
Motion for Reconsideration, 7/22/15, at unnumbered page 1 ¶ 5). Indeed,
as mentioned above, Appellant had produced two hundred and fifty pages of
discovery responses one day after the court issued the sanctions order.
(See id. at unnumbered page 2 ¶ 8; id. at Exhibit D.). While this does not
excuse Appellant’s earlier inaction, failure to provide the discovery sooner
does not make it willful or in bad faith, either. See Frat. Order of Police
Lodge No. 5, supra at 1272 (finding plaintiff did not act in bad faith where
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timely noncompliance with subpoena resulted from “clerical error” and
subpoenaed documents were later produced).
Third, the importance of the subject evidence cannot be overstated
because its preclusion resulted in the ultimate grant of Appellee’s motion for
summary judgment. (See Trial Ct. Op., at 3).
Finally, as mentioned previously, this was Appellant’s first discovery
violation in this case.3 We are aware that the court’s order was a sanction
for the dilatory discovery practices of Appellant’s counsel’s law firm in other
cases in addition to this one; however, we must conclude that the court
abused its discretion. Discovery sanctions are meant “to prevent surprise
and unfairness and to allow a fair trial on the merits[,]” not to punish
Appellant for the actions of her counsel’s firm in other cases. McGovern,
supra at 1015 (citation omitted). Hence, particularly where the court’s
severe sanctions negatively affect Appellant’s constitutional rights to due
process, see Frat. Order of Police Lodge No. 5, supra at 1270, we must
conclude that the sanctions imposed by the court do not “fit[] the crime” of a
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3
In its opinion, the trial court considered that Appellant failed to appear for
an independent medical evaluation (IME) while a decision on the motion for
reconsideration of the sanctions order was pending. (See Trial Ct. Op., at
5). However, only the first discovery violation is before this Court. The fact
that Appellant arguably has committed a second infraction would be a proper
consideration for the trial court should Appellee file a motion seeking relief
for that offense. See Frat. Order of Police Lodge No. 5, supra at 1270
(directing court to consider “the number of discovery violations by the
offending party”).
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first discovery violation, which was not committed in bad faith, and does not
prejudice Appellee’s ability to present a defense at trial. Estate of Ghaner,
supra at 590. Accordingly, we vacate that portion of the July 14, 2015
sanctions order precluding Appellant “from presenting at trial any witnesses,
testimony or other evidence relating to information requested in [Appellee’s]
interrogatories and request for production of documents and the allegations
appearing in [her] complaint.” (Order, 7/14/15) (unnecessary capitalization
omitted).4
In summary, we affirm the court’s sanctions order to the extent that
the trial court found that Appellee was entitled to sanctions. However, we
vacate that portion of the order that precludes Appellant from presenting
any witnesses, testimony, or evidence related to information requested in
Appellee’s discovery requests or in the allegations of the complaint. We
remand for the court to impose more appropriate sanctions. Finally,
because the court’s grant of summary judgment in Appellee’s favor was
based on the circumstances as they existed after it precluded Appellant from
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4
This decision in no way condones the law firm of Simon & Simon, P.C.’s
obstreperous pattern of noncompliance with discovery rules and orders in
this, and approximately sixty-four other, cases. (See Trial Ct. Op., at
Attachment). In fact, we sympathize with the frustration of both the trial
court and Appellee’s counsel. However, there are other, more appropriate,
vehicles available to the court for sanctioning the egregious behavior of this
law firm other than precluding Appellant from presenting any evidence in her
case.
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presenting evidence on her behalf, we vacate the order granting summary
judgment.
Sanctions order affirmed in part and vacated in part. Summary
judgment order reversed. Case remanded. Panel jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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