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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
YAACOV BENAROSH AND : IN THE SUPERIOR COURT OF
BATYA BENAROSH : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 3583 EDA 2017
MICHAEL AXELROD AND JOAN :
AXELROD, INDIVIDUALLY, HIS :
HEIRS AND ASSIGNS, AND AS :
TRUSTEES OF THE MICHAEL :
AXELROD 2012 IRREVOCABLE :
TRUST, TRIAD REALTY, MARLENE :
ZARRETT AND BARE FEET SHOES :
Appeal from the Order Entered October 5, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 150902664
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED APRIL 09, 2019
Yaacov Benarosh and Batya Benarosh (Appellants) appeal from the
order denying their petition to open the judgment of non pros entered against
them. We affirm.
The procedural history of this premises liability case is extensive and,
as we discuss infra, includes several irregularities. Because the trial court
and the parties are familiar with the myriad filings in this case, we discuss
only those filings that are pertinent to our review of Appellant’s claims.
On September 25, 2015, Appellants filed the underlying complaint
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through their attorney, Blake Berenbaum, Esquire.1 They alleged that on
December 13, 2013, Appellant Yaacov slipped and fell on snow or ice outside
a retail store, Bare Feet Shoes, located at 425 South Street, Philadelphia. The
complaint named ten defendants: (1) Michael Axelrod, “Michael Axelrod,
individually of the Michael Axelrod 2012 Irrevocable Trust” (Michael Trust),
“Michael Axelrod, individually, his heirs and assigns of the Michael Axelrod
2012 Irrevocable Trust,” “Michael Axelrod, Trustee of the Michael Axelrod
2012 Irrevocable Trust,” Joan Axelrod, “Joan Axelrod, individually of the Joan
Axelrod 2012 Irrevocable Trust” (Joan Trust), and “Joan Axelrod, trustee of
the Joan Axelrod 2012 Irrevocable Trust” (collectively, the Axelrods) — who
allegedly owned the property; (2) Triad Realty, Inc. (Triad); (3) Marlene
Zarett;2 and (4) Bare Feet Shoes. We refer to the Axelrods and Zarett, who
have submitted all of their filings jointly, together as “Appellees.”
On October 14, 2015, an affidavit of non-service was filed, stating that:
service of the complaint was not made on Bare Feet Shoes; as of one year
earlier, Bare Feet Shoes no longer occupied the 425 South Street property;
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1 The trial docket reflects no further filings by Attorney Berenbaum in this
case. We note that in December of 2015, the Office of Disciplinary Counsel
filed a professional misconduct petition against Attorney Berenbaum. On April
20, 2017, the Supreme Court of Pennsylvania placed him on temporary
suspension and on December 13, 2017, suspended him for one year and one
day. Supreme Court Order, 174 DB 2015; Supreme Court Order, 28 DB 2017,
4/20/17.
2 Marlene’s last name is also spelled as “Zarrett” throughout the record.
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and furthermore, that another business, Eternity Fashion, was presently at
the address. Appellees filed a joint answer and new matter. In response to
the complaint’s allegation that “Joan Axelrod, Trustee of the Joan Axelrod
2012 Irrevocable Trust is an adult individual and/or trust established and/or
created under the laws of the state of New York,” Appellees’ answer admitted
that Joan Axelrod was a citizen of New York, but denied “[t]he remaining
allegations set forth in [the] paragraph.” See Appellants’ Complaint, 9/25/15,
at ¶ 7; Appellees’ Answer, 11/17/15, at ¶ 7. Triad filed a separate answer
and new matter.
Over the next 12 months, Triad filed approximately seven motions, and
Appellees filed approximately four motions, averring initially that Appellants
failed to respond to their discovery requests and appear for depositions, and
subsequently that Appellants repeatedly failed to comply with the court’s
orders compelling them to comply with discovery and appear for depositions.
Appellants did not respond to any of the motions. The trial court granted relief
on all the motions, issuing approximately eight orders.3 We note that on
November 23, 2016, the court held a hearing on Appellees’ motion for
sanctions and preclusion of Appellants’ introduction of any evidence. Attorney
Berenbaum did not appear at the hearing, but Susan Frank, Esquire, appeared
“per diem on [his] behalf.” Id. at 8. On November 28th, the court granted
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3 See Order, 11/28/16; Order, 10/12/16; Orders, 9/29/16 (three orders
issued on this date); Order, 8/24/16; Order, 8/4/16; Order, 2/18/16.
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Appellees’ motion and precluded Appellants “from introducing any evidence at
the time of trial/arbitration in this matter.” Order, 11/28/16.
On November 29, 2016, Appellees filed a motion for summary
judgment, arguing that because Appellants were precluded from presenting
evidence in support of their negligence claims, Appellees were entitled to
judgment as a matter of law. This motion named the movants as Michael
Axelrod and Joan Axelrod, individually and as trustees of the Michael Trust
and Zarett. The motion, however, did not specifically include Joan as trustee
of the Joan Trust as a movant.
On December 6, 2016 — after Appellants not filing anything on the
docket since their complaint 14 months earlier — present counsel, Alan
Zibelman, Esquire, entered his appearance as “co-counsel.” That month,
Attorney Zibelman filed three motions seeking relief, including reconsideration
of the order precluding Appellants from introducing any evidence at trial. The
trial court denied all of Appellants’ motions.4 Appellants also filed an answer
to Appellees’ motion for summary judgment.
On March 6, 2017, the trial court granted Appellees’ motion for summary
judgment and dismissed all of Appellants’ claims against them with prejudice.
The order, however, did not mention Joan Axelrod in her capacity as trustee
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4 Order, 3/6/17; Order, 1/23/17; Order, 12/30/16; Order, 12/15/16.
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of the Joan Trust. Order, 3/6/17. On April 24th, the parties filed a stipulation
to dismiss Triad from the case.5 On April 26th, Appellants praeciped for default
judgment against Joan Axelrod in her capacity as trustee of the Joan Trust.
Appellants’ Praecipe to Enter Default Judgment, 4/26/17.
On May 16, 2017 — the day before scheduled trial6 — Appellants filed a
motion to amend their complaint. They sought to correct the designation of
“Bare Feet Shoes” to “Bare Feet Shoes, Inc.” and “Bare Feet Shoes and
Accessories, LLC”7 but specified that they did not intend to “bring[ ] any new
entities into the . . . litigation.” Appellant’s Motion to Amend Complaint,
5/16/17, at 8 (unpaginated). The motion averred that Appellees knew that
the lessee of the property was “Bare Feet Shoes and Accessories, LLC” but
that the named insured was “Bare Feet Shoes, Inc.” and withheld this
information; Appellees “never advised Appellants” that Bare Feet Shoes had
filed for Chapter 11 Bankruptcy; and Appellees’ answer improperly presented
general denials (rather than specific denials) in order “to withhold relevant
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5 Meanwhile, we note, on April 5, 2017, the trial court had granted Triad’s
motion for preclusion and precluded Appellants “from introducing any
evidence and/or testimony at the time of trial/arbitration in this matter.”
Order, 4/5/17. Triad had also filed a motion for summary judgment, but
withdrew it following its dismissal from the case.
6See N.T. Hearing, 5/17/17, at 15 (trial court: “[This case] was scheduled to
go to trial today.”).
7 See N.T., 5/17/17, at 14.
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information.” Id. at 4--8.
On the following day, May 17, 2017 — again, the date that trial was
scheduled to commence — the trial court convened a hearing.8 When the trial
court questioned Appellants’ entry of default judgment against Joan Axelrod
as trustee of the Joan Trust, Appellants, represented by Attorney Zibelman,
argued that Appellees’ summary judgment motion did not specifically request
any relief on behalf of Joan Axelrod as trustee. N.T., 5/17/17, at 5, 9.
Appellees responded that, as indicated in their answer to the complaint as well
as the trust origination documents, Joan Axelrod was not in fact a trustee of
the Joan Trust, but instead merely a settlor. Id. at 6, 9. The trial court
accepted Appellees’ argument, concluded that Joan Axelrod — both
individually and as trustee — was no longer in the case, and orally opened the
default judgment against Joan Axelrod as trustee of the Joan Trust. Id. at
11. However, the court did not enter a corresponding written order to open
the default judgment.9
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8 Until the May 17, 2017 hearing, the Honorable John Younge presided over
this case. Thereafter, the case was reassigned to the Honorable Sean
Kennedy.
9Appellants have not challenged the lack of a written order, and indeed, have
acknowledged that the default judgment was opened. See Jackson v.
Hendrick, 746 A.2d 574, 576 (Pa. 2000) (plurality) (“In some instances, oral
orders, made on the record, need not be filed or entered on the docket in
order to be valid.”); Appellants’ Memorandum of Law in Support of Petition for
Relief from Judgment of Non Pros, 6/26/17, at 11 (unpaginated). For the sake
of clarity, we direct that upon remand of the record, the trial court shall file
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At the hearing, the trial court also denied Appellants’ motion to amend
the complaint, noting the “late date” and that over the course of three years,
Appellants did nothing to identify the proper parties in this case. N.T.,
5/17/17, at 15-16, 18-19. Although Attorney Zibelman initially argued that
Appellees failed to inform Appellants “who the tenant was” or that Bare Feet
Shoes was in bankruptcy, Attorney Zibelman conceded that neither he nor
prior counsel served “discovery asking for those things.” Id. at 13-15. The
trial court pointed out that with “[t]he most preliminary type of discovery,”
Appellants could have determined who was responsible for snow removal. Id.
at 19.
The trial court then concluded that the only remaining defendant in this
action was Bare Feet Shoes but, as Attorney Zibelman acknowledged,
Appellants failed to obtain proper service on Bare Feet Shoes, and Bare Feet
Shoes did not file an answer.10 See id. at 12, 20. Accordingly, the court
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an order documenting its May 17, 2017 opening of the default judgment
against Joan as trustee of the Joan Trust.
10 Appellees’ answer was entitled “Answer of Defendants, Michael Axelrod and
Joan Axelrod, Individually, His Heirs and Assigns, and as Trustees of the
Michael Axelrod 2012 Irrevocable Trust, Triad Realty, Marlene Zarrett, and
Bare Feet Shoes, to Plaintiff’s Complaint Together with New Matter.”
Appellees’ Answer, 11/17/15, at 1 (emphases added). Possibly relying on this
title, Appellants’ motion to amend the complaint averred that Appellees’
answer was also filed on behalf of Bare Feet Shoes. Appellants’ Motion to
Amend Complaint, 5/16/17, at 4. However, as Appellants’ motion also
acknowledged, Appellees’ attorney had entered his appearance on behalf of
the Axelrods and Zarett only. Furthermore, the body of Appellees’ answer
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dismissed Appellants’ complaint. Id. at 24; Trial Court Opinion, 6/25/18, at
3. On May 23, 2017, the court issued an order entering judgment non pros
against Appellants. The trial docket indicates that Pa.R.C.P. 236 notice was
given on May 23rd.11
Thirty-four days later, on June 26, 2017, Appellants filed a counseled
50-page petition to strike the judgment non pros. Appellees filed a response,
arguing that Appellants’ petition was untimely pursuant to Pa.R.C.P. 237.3
and Schultz v. Erie Insurance Exchange, 477 A.2d 471 (Pa. 1984).12 On
October 5th, the court denied Appellant’s petition for relief, finding it was
untimely filed beyond the 10-day period set forth in Pa.R.C.P. 237.3. Order,
10/5/17; Trial Court Opinion, 6/25/18, at 11.
Although Appellants were represented by Attorney Zibelman, they filed
a pro se notice of appeal on November 2, 2017 and a pro se Pa.R.A.P. 1925(b)
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referred to Triad and Bare Feet Shoes each as “a defendant other than the
answering defendant.” Appellees’ Answer, 11/17/15, at 3. It thus appears
that the inclusion of Bare Feet Shoes in the title of Appellees’ answer was a
typographical error. In any event, as stated above, Appellants conceded that
Bare Feet Shoes did not file any answer in this case. N.T., 5/17/17, at 12.
11 See Pa.R.C.P. 236(a)(2) (“The prothonotary shall immediately give written
notice of the entry of . . . any . . . order or judgment to each party’s attorney
of record[.]”)
12See Pa.R.C.P. 237.3(b)(1), comment (if a defendant files a petition to open
judgment more than 10 days after entry of judgment, the defendant must
comply with Schultz, 477 A.2d 471).
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statement on December 7th.13 Subsequently, on December 20th, the trial court
issued an order directing Appellants to file a Rule 1925(b) statement, but no
ensuing statement was filed. The trial court filed an opinion on June 25, 2018.
In this Court, Appellants initially proceeded pro se, until Attorney Zibelman
entered his appearance on November 18, 2018. He filed an untimely brief
and Appellees filed a joint brief. See Superior Court Order, 1/24/19 (denying
Appellees’ motion to quash or dismiss appeal but noting that Appellants’
amended brief was untimely filed).
Preliminarily, we consider the trial court’s suggestion that all of
Appellants’ issues are waived because their pro se Rule 1925(b) statement —
which spanned 11 pages and raised 12 issues — was lengthy, confusing, and
redundant. Trial Court Opinion, 6/25/18, at 12, citing Jiricko v. Geico Ins.
Co., 947 A.2d 206, 210, 213 (Pa. Super. 2008) (pro se appellant’s issues are
waived because his court-ordered Rule 1925(b) statement was “an
incoherent, confusing, redundant, defamatory rant” and presented “no
legitimate appellate issue”). We also review Attorney Zibelman’s failure to file
a Rule 1925(b) statement after the court directed Appellants to file one.
In this case, at no time did Attorney Zibelman withdraw from his
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13 Appellants’ pro se notice of appeal was properly docketed. See
Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016) (this
Court must docket a pro se notice of appeal even when the appellant is
represented by counsel), citing Superior Court O.P. § 65.24 (“A pro se notice
of appeal received from the trial court shall be docketed, even in instances
where the pro se was represented by counsel in the trial court.”).
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representation of Appellants as “co-counsel.” Thus, the trial court clerk of
courts should not have docketed Appellants’ pro se Rule 1925(b) statement,
which was a legal nullity, and instead should have forwarded it to counsel.
See Pa.R.A.P. 3304 (when a litigant, who is represented by an attorney,
submits for filing a petition, motion, brief or any other type of pleading, it shall
not be docketed but forwarded to counsel of record); Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (“[T]here is no constitutional right to
hybrid representation either at trial or on appeal.”); Commonwealth v. Ali,
10 A.3d 282, 293 (Pa. 2010) (pro se Rule 1925(b) statement by a represented
criminal defendant is a legal nullity). The record and trial docket are silent,
however, as to whether the statement was in fact forwarded to Attorney
Zibelman.
In any event, the trial court issued a Rule 1925(b) order, with which, if
properly served, Appellants were required to comply. The record does not
include any accompanying certificate of service, and although the trial docket
includes an entry for “Notice given under Rule 236,” the docket does not
indicate to whom notice was sent. Thus, we cannot conclude that the Rule
1925(b) order was properly served on Attorney Zibelman. See In re Estate
of Boyle, 77 A.3d 674, 677-678 (to find waiver for failure to file court-ordered
Rule 1925(b) statement, trial docket must show that notice of 1925(b) order
was served on the parties). For all of these reasons, we decline to find waiver
on the basis of a confusing and redundant pro se Rule 1925(b) statement or
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the lack of a counseled Rule 1925(b) statement. See id.
Appellants state their three issues for our review verbatim:
1. Should a judgment of non pros be reversed where the trial
court’s order granting the judgment was not supported by
substantial evidence non pros was erroneous [sic] and an abuse
of discretion because the trial court did not use the proper
standard of review and was not supported by substantial
evidence?
2. Did the lower court abuse its discretion by issuing a preclusion
order against Appellants by the Appellees when the Appellees’
counsel served written discovery questions on August 2, 2016
when Appellant was in the hospital and Appellees’ counsel only
obtained one compel order prior to portraying Appellant as willfully
attempting to avoid providing discovery answers or undergo a
deposition in their Motion for Sanctions, and the lower court
abused its discretion when it granted the motion without the lower
court of November 29, 2016 obtained by the Appellees be vacated
when the Appellees first served their discovery on August 2, 2016
only obtained one discovery order which compelled Appellants[‘]
written discovery and deposition testimony, which Appellants
complied with, and Appellees except he willfully attempted was
prepared to undergo, but Appellees’ counsel thwarted them from
taking place and would not make any attempt to reschedule
Appellants’ deposition prior to filing a Motion for Sanctions and
failed to show the lower court any substantial evidence that
Appellants were willfully non-compliant [sic]?
3. Should Appellants be permitted to amend their complaint when
the lower court abused its discretion by denying Appellants’
motion to amend the caption . . . Appellee and Defendant, Bare
Feet Shoes [sic] violated the clean hands doctrine by withholding
the principals of Bare Feet Shoes, which was known to the
Appellees when they answered Appellants’ complaint three
months prior to the statute of limitation, which they knew and was
in their exclusive control and Appellants?
Appellants’ Brief at 5.
In their first issue, Appellants allege that the trial court erred in applying
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Pa.R.C.P. 237.314 to determine whether their petition to strike the judgment
of non pros was timely. Instead, Appellants contend, the court should have
applied Pa.R.C.P. 3051(c) and Jacobs v. Halloran, 710 A.2d 1098 (Pa.
1998), the latter of which they aver applies to judgments of non pros
“rendered as a result of ‘inactivity’ or a long delay in [the p]laintiffs
prosecuting their . . . claims[.]” Appellants’ Brief at 21-22. Appellants also
assert that the court abused its discretion in granting Appellees’ motion for
summary judgment because the motion “was not supported by substantial
evidence” and because Joan Axelrod, as trustee of the Joan Trust, was neither
named as a moving party in the motion nor named in the trial court’s order.
Id. at 23.
“A trial court’s decision to deny a petition to open or strike a judgment
of non pros is scrutinized on the abuse of discretion standard of appellate
review.” Madrid v. Alpine Mt. Corp., 24 A.3d 380, 382 (Pa. Super. 2011).
Pennsylvania Rule of Civil Procedure 237.3(b)(1) states:
If the petition [for relief from a judgment of non pros] is filed
within ten days after the entry of a judgment of non pros on
the docket, the court shall open the judgment if the proposed
complaint states a meritorious cause of action.
Pa.R.C.P. 237(b)(1) (emphasis added). The explanatory comment provides
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14 Although Appellants’ brief averred that the trial court applied “Rule 236”
(“Notice by Prothonotary of Entry of Order of Judgment”), the trial court’s
opinion states that it applied Rule 237.3. See Trial Court Opinion, 6/25/18,
at 11; Appellants’ Brief at 21.
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that if a petition to open judgment non pros is filed more than 10 days after
judgment, the petition “is not within the scope of Rule 237.3(b)” and instead,
the party must proceed pursuant to Schultz, 477 A.2d 471. Pa.R.C.P.
237(b)(1), comment; see also id. (these procedures apply equally to default
judgments and judgments non pros). The Pennsylvania Supreme Court held,
in Schultz:
A petition to open a judgment is addressed to the equitable
powers of the court and is a matter of judicial discretion. The
court will only exercise this discretion when (1) the petition has
been promptly filed; (2) a meritorious defense can be shown; and
(3) the failure to appear can be excused.
Schultz, 477 A.2d at 472.
Pennsylvania Rule of Civil Procedure 3051 provides in pertinent part:
(c) If the relief [from a judgment of non pros] sought includes
the opening of the judgment of non pros for inactivity, the
petition shall allege facts showing that [list of factors.]
Note: The “inactivity” covered by this subdivision is governed
by and subject to Jacobs v. Halloran, . . . 710 A.2d 1098 ([Pa.]
1998).
Pa.R.C.P. 3051(c) (emphasis added). In Jacobs, the trial court terminated
the plaintiff’s automobile-collision action because, following the complaint and
discovery, no docket activity had occurred for two years. Jacobs, 710 A.2d
at 1100. The court thus entered judgment of non pros against the plaintiff.
Id. On appeal, our Supreme Court held:
To dismiss a case for inactivity pursuant to a defendant’s motion
for non pros there must first be a lack of due diligence on the part
of the plaintiff in failing to proceed with reasonable promptitude.
Second, the plaintiff must have no compelling reason for the
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delay. Finally, the delay must cause actual prejudice to the
defendant. As always, this determination is to be made by the
trial court, whose decision will not be disturbed absent an abuse
of discretion.
Id. at 1103 (emphasis added).
Finally, we consider Pennsylvania Rule of Civil Procedure 401, which
governs service:
(a) . . . Original process shall be served within the
Commonwealth within thirty days after . . . the filing of the
complaint.
(b)(1) If service within the Commonwealth is not made within
the time prescribed by subdivision (a) . . . the prothonotary upon
praecipe and upon presentation of the original process, shall
continue its validity by . . . reinstating the complaint, by writing
thereon . . . “reinstated” in the case of a complaint.
Pa.R.C.P. 401(a), (b)(1).
Contrary to Appellants’ argument, Jacobs and Rule 3051(c) are not
applicable, because Jacobs addressed the prolonged lack of activity on the
trial docket following the complaint. See Jacobs, 710 A.2d at 1100. Here,
the trial court did not dismiss Appellants’ complaint for “inactivity” — both
Appellants and Appellees filed numerous motions and responses in the five
months leading to the judgment of non pros. Instead, the trial court specified
that it was dismissing Appellants’ complaint because Appellants failed to serve
the complaint on the last remaining defendant, Bare Feet Shoes. Trial Court
Trial Work Sheet, 5/23/17; N.T., 5/17/17, at 24.
In addition, because Appellants filed their petition 32 days after notice
of the judgment was sent, the petition was not within the scope of Rule 237.3
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(which applies to petitions filed within 10 days of judgment non pros), but was
subject to Schultz. See Pa.R.C.P. 237(b)(1), comment. Pursuant to
Schultz, Appellants had to demonstrate that: (1) their petition was promptly
filed; (2) a meritorious defense can be shown; and (3) their failure to serve
the complaint on Bare Feet Shoes can be excused. See Schultz, 477 A.2d at
472. Appellants failed to establish this third prong.
Appellants acknowledged that that they failed to serve their complaint
on Bare Feet Shoes, and they did not seek reinstatement of their complaint
against Bare Feet Shoes. See Pa.R.C.P. 401(a), (b)(1). Appellants’ sole
attempt to remedy the failure was to file — 19 months after the affidavit of
non-service and on the day before the scheduled trial — a motion to amend
the complaint, but the motion admitted that it did not seek to join “any new
entities” to the litigation. See Appellants’ Motion to Amend Complaint,
5/16/17, at 8. On appeal, Appellants advance the same allegations of
Appellees’ willful deception and withholding of information that were rejected
by the trial court. Appellants would have this Court ignore the trial court’s
reasoning that Appellants could have — but failed to — determine the proper
parties through appropriate discovery. Upon review, we hold that the court
did not abuse its discretion in denying Appellants’ petition to strike the
judgment non pros. See Madrid, 24 A.3d at 382; Schultz, 477 A.2d at 472.
See also Zehner v. Zehner, 195 A.3d 574, 581 n. 12 (Pa. Super. 2018) (this
Court may affirm trial court’s ruling on any basis).
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We also find no merit to Appellant’s challenge to the order granting
Appellees’ motion for summary judgment. Although Appellants correctly point
out that neither the motion nor the order specifically mentioned Joan Axelrod
in her capacity as trustee of the Joan Trust, Appellants again would have this
Court ignore the trial court’s reasoning — here, that Joan Axelrod was never
a trustee of the Joan Trust and thus that alleged party did not exist. See N.T.,
5/17/17, at 9-11; see also Appellees’ Answer, 11/17/15, at ¶ 7. Appellants
have not argued that Joan Axelrod was in fact a trustee of the Joan Trust;
thus, no relief is due.
In Appellants’ second issue, they claim that the trial court erred in
granting Appellees’ motion to preclude them from introducing any evidence at
trial. Appellants maintain that they did provide written discovery, and deny
canceling or failing to appear for an October 14, 2016 deposition. Appellants
assert that it was Appellees who, on the eve of deposition, rescheduled the
deposition to October 19, 2016. Appellants’ Brief at 25. Appellants contend
that they agreed to the October 19th date, but Appellees refused their request
that the deposition start at noon. Appellants insist that “they never once
refused to appear.” Id. at 27.
This Court has explained:
Generally, imposition of sanctions for a party’s failure to
comply with discovery is subject to the discretion of the trial court,
as is the severity of the sanctions imposed. . . .
* * *
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The trial court is responsible for overseeing “discovery
between the parties and therefore it is within that court’s
discretion to determine the appropriate measures necessary to
insure adequate and prompt discovery of matters allowed by the
Rules of Civil Procedure.” Discovery rulings are “uniquely within
the discretion of the trial judge,” and will not be reversed unless
they are deemed to represent an abuse of discretion.
Rohm & Haas Co. v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010) (citations
omitted).
Pennsylvania Rule of Civil Procedure 4019(a)(1) states, in pertinent
part: “The court may, on motion, make an appropriate order if . . . a party
fails to serve answers [or] sufficient answers . . . to written interrogatories,”
fails to appear, after proper notice, for a deposition, or “otherwise fails to
make discovery or to obey an order of court respecting discovery.” Pa.R.C.P.
4019(a)(1)(i), (iv), (viii). Further, Rule 4019(c)(2) specifies that the court
may enter “an order refusing to allow the disobedient party to support . . .
designated claims[,] or prohibiting such party from introducing in evidence
designated documents, things or testimony[.]” Pa.R.C.P. 4019(c)(2).
In response to Appellants’ claim, the trial court detailed its rationale as
follows:
On February 1[8], 2016, this Court entered an Order compelling
Appellants to provide full, complete, and verified discovery
requests within thirty (30) days. On August 2, 2016, during the
discovery period, . . . Appellees served Interrogatories and
Requests for Production of Documents upon Appellants at
Appellants’ counsel’s office. Pursuant to Pa.R.C.P. 4006(a)(2)
[Answers to Written Interrogatories by a Party], “the answering
party shall serve a copy of the answers, and objections if any,
within thirty days after the service of the interrogatories.”
Therefore, Appellants’ answers and objections to the said requests
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were due on or before September 2, 2016.
After Appellants failed to serve answers and/or objections to
. . . Appellees’ Interrogatories, . . . Appellees[ ] sent Appellants’
counsel a letter on September 13, 2016, requesting delivery of
Appellants’ full, complete, and verified discovery responses to . .
. Appellees’ requests within ten (10) days. On September 16,
2016, . . . Appellees[ ] requested discovery hearings regarding a
Motion to Compel Deposition, Request for Admissions, and
Answers and Production of Documents. On September 2[9],
2016, the Court entered an Order compelling Appellants’
deposition to be conducted on October 19, 2016. In accordance
with Pa.R.C.P. 4007.1(a), notice of the Court’s Orders was
forwarded to Appellants’ counsel via electronic delivery to the
address of record with the Court. Appellants were notified of the
deposition in accordance with Pa.R.C.P. 4007.1(a) and were
required to appear (“[a] party noticed to be deposed shall be
required to appear without subpoena”), yet failed to do so. On
October 18, 2016, Appellants’ counsel confirmed that his client
would be present for the Court ordered depositions, but Appellant
did not appear for the deposition.
On September 2[9], 2016, the Court entered an Order
compelling Appellants’ full, complete, and verified answers to
interrogatories and responses to request for production of
documents within twenty (20) days. Appellants failed to deliver
verified answers to . . . Appellees’ discovery requests within
twenty (20) days. Appellants neither filed for nor were granted a
protective order with regard to . . . Appellees’ discovery demands.
Appellants continued to demonstrate a course of conduct
consistent with a blatant disregard for this Court’s Orders by
refusing to comply with five (5) previously issued Orders. . . .
Appellees then requested this Court to enter an Order imposing
sanctions and precluding Appellants from introducing evidence or
testimony in this matter at the time for trial/arbitration, which
Judge Younge granted on November 28, 2016. Such an Order
was appropriate here, as Appellants continuously disregarded . . .
Appellees’ discovery requests. [See Pa.R.C.P. 4019(a)(1)
(a)(1)(i), (viii), (c)(2).]
Appellants’ counsel failed to act in good faith with . . .
Appellees[ ] to comply with this Court’s numerous Orders.
Appellants’ counsel had a full opportunity to argue all of the facts
at the discovery hearing before Judge Younge when the entry of
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the Court’s Preclusion Order occurred. . . . Appellees’ discovery
demands were related to discoverable information pertaining to
this case. The scope and number of the requests for information
contained in the discovery requests were limited and specific and
fell within the scope of discovery permitted under the
Pennsylvania Rules of Civil Procedure. Appellants’ counsel
continued to defy the Court’s repeated Orders and . . . Appellees
were prejudiced in the preparation of the case because the
information requested was not received. Pa.R.C.P. 4019(c)[(5)]
provides that a Court acting under the Pennsylvania Rules of Civil
Procedure may enter an Order “with regard to the failure to make
discovery as is just.” Therefore, the Court did not err by entering
a Preclusion Order here.
Trial Court Opinion, 6/25/18, at 13-15.
Further, with respect to Appellants’ claim that on October 13, 2016,
Appellees rescheduled a deposition — that was to be held the following day —
to October 19th, we note that it was the trial court, in a September 29, 2016,
order, who ordered Appellants to appear for a deposition on October 19th at
10:00 a.m. Order, 9/29/16. At the November 23, 2016 hearing, Appellees
argued that: (1) on October 18th, Appellants’ counsel confirmed via telephone
that Appellants would appear for the deposition; but (2) Appellants did not
appear, and instead, 30 minutes after the deposition was scheduled to start,
Appellants’ counsel called and asked if the deposition could be conducted at
2:00. N.T., 11/23/16, at 6-7. Attorney Frank, who had appeared on behalf
of Appellants, argued that she had emails that would explain why Appellants
did not appear on October 19th. However, the court responded that Attorney
Frank did not personally know what happened but instead was merely
representing to the court what someone else had told her. Id. at 10-13.
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Given the extensive history — spanning more than 14 months — of
Appellants’ failure to respond to Appellees’ discovery requests and especially
their failure to comply with the trial court’s numerous orders compelling them
to provide discovery and appear for depositions, we hold that the court did
not abuse its discretion in granting Appellees’ motion for sanctions and
precluding Appellants from introducing any evidence at trial. See
4019(a)(1)(i), (iv), (viii), (c)(2); Rohm & Haas Co., 992 A.2d at 142.
We thus turn to Appellants’ third and final issue, in which they argue
that the trial court should have granted their petitions to amend the complaint
and to strike the judgment non pros. Appellants claim that both Appellees
and Bare Feet Shoes acted with “unclean hands” by willfully withholding
“information which was in their exclusive control and forward[ing] Appellants’
complaint to an address that they knew Bare Feet existed who was the same
principal who owned Eternity Fashions [sic].” Appellants’ Brief at 27-28. See
also Appellants’ Petition for Relief from Judgment of Non Pros, 6/26/17, at ¶¶
55-56 (alleging that Meir Duke owned both of the Bare Feet Shoes entities
and Eternity Fashion, and that Bare Feet Shoes “knowingly attempted to evade
service of process by having another entity, Eternity Fashion, Inc. assume
[its] lease obligations“).
Although Appellants insist that Appellees withheld critical information
from them, Appellants do not acknowledge, let alone refute, the trial court’s
observation that Appellants could have ascertained this information through
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discovery. See N.T., 5/17/17, at 16-19. Appellants have not made any claim
— before the trial court or this Court — that Appellees provided insufficient or
incorrect responses to any properly-served interrogatories. Based on the trial
court’s reasoning, we find no merit to Appellants’ claims of Appellees’ “unclean
hands” and withholding of information.
In sum, and for the reasons stated above, we affirm the order denying
Appellants’ petition to strike the judgment non pros.
Order affirmed. Upon remand, the trial court shall issue and file a
written order memorializing its May 17, 2017 opening default judgment
against “Joan Axelrod, trustee of the Joan Axelrod 2012 Irrevocable Trust.”
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/19
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Benarosh, Y. v. Axelrod, M.
Combined Opinion