Cohen, M. v. Moore Becker, P.C.

J-S36024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MYRNA COHEN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MOORE BECKER, P.C. :
:
Appellee : No. 188 WDA 2020

Appeal from the Order Entered January 6, 2020
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 8424 of 2008

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.: FILED OCTOBER 26, 2020

Appellant, Myrna Cohen, appeals from the order entered in the

Westmoreland County Court of Common Pleas, which granted the motion of

Appellee, Moore Becker, P.C., for discovery sanctions and dismissed

Appellant’s complaint with prejudice, in this legal malpractice dispute. For the

following reasons, we vacate and remand.

The relevant facts and procedural history of this case are as follows. In

1999, Appellant became disabled and was denied a claim for social security

disability (“SSD”) benefits. Appellant retained Jeffrey Abramowitz, Esq. via

an oral agreement to appeal the denial of SSD benefits on her behalf. In

2002, Appellant’s long-term disability (“LTD”) benefits provider discontinued

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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her benefits. Appellant again retained Mr. Abramowitz through an oral

agreement to restore her LTD benefits. At all relevant times, Mr. Abramowitz

was an employee of Appellee. Appellant was unsuccessful in both disputes

under Mr. Abramowitz’s representation.

Appellant initiated this action against Mr. Abramowitz and Appellee in

July 2008. In June 2010, Appellant filed an amended complaint asserting a

breach of fiduciary duty claim against Mr. Abramowitz; professional negligence

claims against Mr. Abramowitz and Appellee; and a negligence claim against

Appellee under the doctrine of respondeat superior. In Appellant’s negligence

allegations, she averred that Mr. Abramowitz failed to litigate and/or fully

litigate her claims, and otherwise seek relief for Appellant, directly resulting

in Appellant’s deprivation of both benefits. In February 2017, Appellant

voluntarily discontinued her claims against Mr. Abramowitz. Subsequently,

Appellee filed a motion for judgment on the pleadings. In June 2018, the

court granted in part and denied in part Appellee’s motion, dismissing

Appellant’s direct professional negligence claim against Appellee. As a result,

the only remaining claim was Appellant’s negligence claim against Appellee

under the doctrine of respondeat superior.

In April 2019, Appellee sought to depose Appellant in July 2019. Due

to mutual scheduling conflicts, the parties agreed to hold the deposition on

October 4, 2019, and Appellee served Appellant with a notice of deposition to

that effect. The parties agreed to postpone when Appellant’s counsel

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encountered a further scheduling conflict. As a result, Appellee issued a first

amended notice of deposition for October 25, 2019. On October 24, 2019,

Appellant cancelled the October 25th deposition. Appellant said that she: (1)

was and had been in Virginia for an extended period, and did not plan to return

until approximately mid-December; (2) did not receive the first amended

notice of deposition until October 24th; and (3) was unsure if she could sit for

a day-long deposition due to a medical concern. Appellant did not inform her

counsel that she was in Virginia until she cancelled the October 25th

deposition. Appellee offered to reschedule for November 4, 2019, but

Appellant would not commit to any date in November 2019.

On November 1, 2019, Appellee filed a motion to compel Appellant to

attend a deposition, which the court granted that same day. The November

1st order provided:

[Appellant] shall sit for a deposition in Greensburg,
Pennsylvania by December 6, 2019. If it cannot be
completed in one day due to medical reasons or otherwise,
it will resume on or before December 13, 2019. Should
[Appellant] not comply with this Order, the [c]ourt may
consider sanction, upon further motion by [Appellee].

(Order, dated November 1, 2019).

On December 6, 2019, Appellant filed a motion for leave to continue the

deposition dates to February 2020. In her motion, Appellant alleged she is

the primary caregiver for her sister in Virginia, who had undergone surgery in

August 2019 necessitating recovery through January 2020. Appellant

attached a physician’s letter dated November 19, 2019, attesting to her

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sister’s medical status and explaining that Appellant had cared for her sister

following the surgery. The court issued an order on December 6, 2019

granting Appellant partial relief, stating:

[Appellant] shall sit for a deposition in Greensburg,
Pennsylvania during the week of December 16th, 2019. If it
cannot be completed in one day due to medical reasons or
otherwise, it will resume during another day within that
week as arranged by counsel. Failure of [Appellant] to
comply will result in a sanction upon motion of [Appellee’s]
counsel and failure to comply with the sanction or purge the
same will result in a bench warrant against [Appellant].

(Order, dated December 6, 2019).

Appellee issued a second amended notice of deposition, setting the

deposition for December 20, 2019. Upon Appellant’s request, the parties

rescheduled the deposition for December 17th. Appellee issued a third

amended notice of deposition for December 17th, along with December 23rd,

in the event the parties needed a second day to complete the deposition. On

December 16, 2019, Appellant cancelled the December 17 th deposition,

claiming she was ill. The parties confirmed the deposition would proceed on

Monday, December 23, 2019. On Friday, December 20, 2019, Appellant

cancelled the December 23rd deposition also due to illness.

On January 3, 2020, Appellee filed a motion for sanctions, specifically

requesting dismissal of Appellant’s case. That same day, the court held a

hearing on Appellee’s sanctions motion, during which Appellant presented

documentation to support her reasons for not attending a deposition.

Appellant submitted: (1) the November 19, 2019 physician’s letter; (2) a

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medical care visit report dated December 20, 2019, indicating Appellant

presented that day with and received treatment for a viral illness; and (3) a

nurse’s letter dated December 20, 2019, excusing Appellant from

work/meetings through January 2, 2020.

On January 6, 2020, the court granted Appellee’s motion for sanctions

and dismissed Appellant’s only outstanding claim with prejudice. Appellant

filed a timely notice of appeal on February 5, 2020. The court did not order

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal, and Appellant filed none.

Appellant raises two issues for our review:

Whether the [c]ourt erred in dismissing [Appellant]’s sole
remaining claim upon [Appellee]’s first and only Motion for
Sanctions, in the face of the [c]ourt’s previous Order stating
that failure to abide by a future Motion for Sanctions would
result in a bench warrant being issued[?]

Whether the [c]ourt erred in dismissing [Appellant’s] sole
remaining claim upon [Appellee]’s first and only Motion for
Sanctions, in the face of [Appellant] being ill with a virus,
being contagious, and being directed by a physician to
restrict her activities[?]

(Appellant’s Brief at 4).

In her issues combined, Appellant argues dismissal of her case was

premature under the December 6, 2019 order. Appellant emphasizes the

December 6th order provided that the court would issue a bench warrant, not

dismiss her case, as a discovery sanction. Appellant adds that, per the

December 6th order, the bench warrant was a possible penalty only after the

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court imposed a sanction for her failure to comply with the order and if

Appellant subsequently continued to withhold her deposition testimony.

Appellant also argues her discovery default did not warrant dismissal of

her case pursuant to Pa.R.C.P. 4019. Appellant asserts she failed to comply

with only one order compelling her to sit for a deposition during a specific

week, and that no subpoenas to attend a deposition had been issued.

Appellant contends she acted in good faith when she delayed the December

2019 depositions. Appellant notes her doctor deemed her contagiously ill and

physically unable to sit for a whole day, and that she proactively sought to

avoid noncompliance when she filed the December 6, 2019 motion to continue

the deposition dates. Appellant insists Appellee would have suffered no

prejudice if her deposition occurred a few weeks after mid-December 2019,

because if Appellee was prepared to depose her then, it could just as easily

have deposed her several weeks later. Appellant submits that even if Appellee

suffered prejudice as a result of her discovery violations, her payment of

Appellee’s counsel fees and expenses would have cured any prejudice.

Appellant concludes she is entitled to relief. We agree relief is due.

Pennsylvania Rule of Civil Procedure 4019 governs the imposition of

discovery sanctions as follows:

Rule 4019. Sanctions

(a)(1) The court may, on motion, make an appropriate
order if[:]

* * *

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(viii) a party or person otherwise fails to make discovery
or to obey an order of court respecting discovery.

* * *

(c) The court, when acting under subdivision (a) of this
rule, may make[:]

* * *

(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[.]

* * *

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

* * *

Pa.R.C.P. 4019(a)(1)(viii), (c)(3), (c)(5). “Rule 4019 does not require the

imposition of an order compelling compliance as a prerequisite to the trial

court’s authority to impose a sanction.” Weist v. Atlantic Richfield Co., 543

A.2d 142, 145 (Pa.Super. 1988).

“[T]he purpose of discovery sanctions is to secure compliance with our

discovery rules and court orders in order to move the case forward and protect

the substantive rights of the parties, while holding those who violate such

rules and orders accountable.” Rohm & Haas Co. v. Lin, 992 A.2d 132, 147

(Pa.Super. 2010). Defiance of discovery orders “is a direct affront to the

authority of the trial court and to the integrity of the judicial system and rule

of law.” Id. at 143.

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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.
Nevertheless, the court’s discretion is not unfettered:
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
where the violation of the discovery rules is willful and the
opposing party has been prejudiced.

Id. at 142 (internal citations, quotation marks, and emphasis omitted).

“[T]he exercise of judicial discretion in formulating an appropriate sanction

[o]rder requires the court to select a punishment which ‘fits the crime.’”

Weist, supra at 144. Appellate review of a discovery sanction that results in

dismissal is stringent, and our standard of review of such a sanction is strict

scrutiny. Rohm & Haas, Co., supra at 141-42; Cove Centre, Inc. v.

Westhafer Const., Inc., 965 A.2d 259, 261 (Pa.Super. 2009).

“[W]here a discovery sanction either terminates the action directly or

would result in its termination by operation of law, the [trial] court must

consider multiple factors balanced against the necessity of the sanction.”

Anthony Biddle Contrs., Inc. v. Preet Allied Am. St., LP, 28 A.3d 916,

926 (Pa.Super. 2011).

The following factors are applied to determine whether
dismissal is appropriate as a discovery sanction:

(1) the nature and severity of the discovery violation;

(2) the defaulting party’s willfulness or bad faith;

(3) prejudice to the opposing party;

(4) the ability to cure the prejudice; and

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(5) the importance of the precluded evidence in light
of the failure to comply.

Scampone v. Grane Healthcare Company, 169 A.3d 600, 628 (Pa.Super.

2017), appeal denied, 647 Pa. 64, 188 A.3d 388 (2018). This Court has

consistently placed greater emphasis on (i) the prejudice to the non-offending

party and the ability to cure that prejudice, and (ii) the willfulness of the

offending party’s conduct. City of Philadelphia v. Fraternal Order of

Police Lodge No. 5 (Breary), 604 Pa. 267, 286, 985 A.2d 1259, 1271

(2009). “[E]ach factor represents a necessary consideration, not a necessary

prerequisite.” Rohm & Haas Co., supra at 142.

This Court has reserved dismissal as an appropriate discovery sanction

for only the most egregious discovery violations. See, e.g., Rohm & Haas

Co., supra at 143-44 (holding entry of default judgment was within court’s

discretion, where defendant failed to comply with discovery orders for five

years and expressed no intention to comply; defendant’s failure to provide

discovery manifested willful noncompliance and prejudiced plaintiff, who

required withheld documents to make its case); Sahutsky v. Mychak,

Geckle & Welker, P.C., 900 A.2d 866, 871 (Pa.Super. 2006), appeal denied,

591 Pa. 673, 916 A.2d 1103 (2007) (determining dismissal of plaintiffs’ case

via non pros was appropriate sanction for plaintiffs’ failure to respond to

discovery for seven months despite court order without legitimate excuse);

Philadelphia Contributorship Ins. Co. v. Shapiro, 798 A.2d 781, 785-86

(Pa.Super. 2002) (deciding dismissal was commensurate sanction for failure

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to comply with discovery requests and orders for 16 months; litigant’s failure

to supply discovery at issue prejudiced opponent’s ability to establish

defenses); Croydon Plastic Co., Inc. v. Lower Bucks Cooling & Heating,

698 A.2d 625, 629-30 (Pa.Super. 1997), appeal denied, 553 Pa. 689, 717

A.2d 1028 (1998) (upholding discovery sanction barring plaintiff from

introducing expert testimony, constructively dismissing case, where plaintiff

violated multiple discovery orders and failed to provide expert report for 14

months without viable explanation, evidencing willful noncompliance); Hein

v. Hein, 717 A.2d 1053, 1055-56 (Pa.Super. 1998) (affirming preclusion of

husband’s evidence in support of equitable distribution case-in-chief,

effectively dismissing husband’s claim, where husband failed to comply with

discovery requests for six months, despite two court orders).

In situations where the offending party’s conduct was less egregious,

however, this Court has rejected discovery sanctions putting the offending

party out of court as too severe. See, e.g., Scampone, supra at 627-28

(determining sanction striking defendant’s responsive pleadings was not

commensurate with defendant’s paper discovery violations, despite court

order, where plaintiff was in possession of at-issue documents at time of

appeal and prejudice resulting from inaccurate disclosure was remedied by

this Court granting new trial for punitive damages); Anthony Biddle Contrs.,

Inc., supra at 926-28 (holding trial court abused its discretion when it

entered sanction putting plaintiff out of court, where plaintiff made written

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discovery request only eight days after its discovery deadline but within overall

discovery period, and where late discovery request was due to counsel’s

clerical error); Steinfurth v. LaManna, 590 A.2d 1286, 1289-90 (Pa.Super.

1991) (explaining order precluding plaintiffs from establishing their case was

improper, despite plaintiffs’ delay in identifying expert witness for three years;

as of hearing on motion for sanctions, defendants had received expert report;

defendants suffered no prejudice, because trial had not yet been scheduled,

so defendants still had time to review expert report, depose expert, and obtain

opposing expert); Griffin v. Tedesco, 513 A.2d 1020, 1024 (Pa.Super. 1986)

(holding trial court abused its discretion by imposing “severe sanction which

precluded appellant from offering any evidence at trial as to damages where

there was no prior order compelling the production of the documents relating

to damages”).

Instantly, Appellee initially issued a notice of Appellant’s deposition for

October 25, 2019. On October 24th, Appellant told her counsel for the first

time that she was in Virginia and cancelled the deposition. Appellee offered

to postpone, but Appellant said she could not sit for a deposition throughout

November 2019 due to a medical condition. On November 1, 2019, Appellee

sought and received a court order compelling Appellant’s cooperation. The

November 1st order required Appellant to appear for a first deposition by

December 6, 2019, and, if necessary, a second deposition by December 13,

2019. Also, the November 1st order cautioned that the court would consider

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imposing sanctions, upon Appellee’s request, if Appellant did not comply.

Appellant did not appear for a deposition by December 6, 2019.

Instead, on that day Appellant filed a motion to continue the deposition dates

to February 2020. Appellant claimed she had been in Virginia acting as the

primary caregiver for her sister, who had undergone surgery in August 2019

requiring recovery through January 2020. On December 6, 2019, the court

entered an order compelling Appellant to appear for depositions the week of

December 16, 2019. In the order, the court warned that Appellant’s continued

intransigence would result in sanctions, on Appellee’s motions, culminating in

the entry of a bench warrant.

Appellee issued an amended deposition notice for December 17, 2019,

and December 23, 2019. On December 16, 2019, Appellant claimed she was

ill and cancelled the December 17th deposition. The parties agreed to hold the

deposition on Monday, December 23, 2019, but on Friday, December 20th,

Appellant cancelled again due to illness. Appellee filed a motion for sanctions

requesting dismissal. At the hearing on the motion, Appellant presented a

November 19, 2019 physician’s letter attesting to her sister’s condition and

December 20, 2019 documents related to medical care Appellant received that

day. The court granted Appellee’s motion and dismissed Appellant’s case.

In dismissing Appellant’s case as a discovery sanction under Rule 4019,

the trial court explained its rationale as follows:

Looking to the [prejudice] factor, this [c]ourt finds that
[Appellant]’s refusal to submit to a deposition in

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contravention of two explicit orders of [c]ourt affirmatively
prejudices [Appellee]. The instant case deals with legal
services [Appellant] received from [Appellee] in regards
to…[SSD and LTD benefits] case[s] over ten years ago,
along with an assessment of [Appellant]’s medical
conditions dating back over two decades. With the instant
case being already over ten years old, any further delay
continues to prejudice [Appellee] with the passage of time.
[Appellant], then, is clearly the integral witness necessary
for the preparation of any defense to the action. As to
[Appellant]’s ability to cure any prejudice, [Appellant] has
repeatedly shown that she is unwilling to participate in her
deposition, which is the only way in which the prejudice here
would be cured.

Looking to the [willfulness and bad faith] factor, it appears
that [Appellant] acted willfully and in bad faith in continuing
to fail to appear for her deposition. This is especially
apparent as she repeatedly contacted [Appellee] through
her counsel on the eve of the scheduled depositions and
refused to appear; this specifically occurred on October 24,
2019, December 6, 2019, December 16, 2019 and
December 20, 2019. While the [c]ourt is sympathetic to
any illness suffered by [Appellant], this cycle of refusal to
appear and consented-to rescheduling occurring within such
a short period of time suggests willful and calculated
behavior.

…[T]he deposition testimony of [Appellant] is crucial, as it
forms the basis for her entire professional negligence claim
against [Appellee]. It would not appear that [Appellee]
would be able to set forth any cogent defense without the
benefit of [Appellant]’s testimony. … Notably, she
disregarded not only the various notices of deposition, but
also disobeyed two Orders of [c]ourt which compelled her
deposition be taken or face sanctions by the [c]ourt.
Although carrying less weight than the preceding two
factors, [this factor] weigh[s] in favor of dismissal of the
case.

Looking to the totality of the circumstances in this case, it
appears that [Appellant] has repeatedly and willfully
violated both deposition notices and Orders of [c]ourt in
repeatedly canceling a vital deposition, without which

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[Appellee] is heavily prejudiced in formulating any defense
to the present action. As such, this [c]ourt was within its
discretion in granting the [Appellee]’s Motion for Sanctions
and dismissing the instant case by Order dated January 6,
2020.

(Trial Court Opinion, filed March 13, 2020, at 4-5). Notwithstanding the

court’s consideration of the relevant facts, we cannot agree with the trial

court’s conclusion that dismissal of Appellant’s case was an appropriate

discovery sanction under the facts of this case. See Scampone, supra.

Looking at the first factor, the nature and severity of the discovery

violation, Appellant’s discovery violations in failing to attend scheduled

depositions took place over an approximate two-month timeframe, from

October 25, 2019 through December 23, 2019. Although Appellant’s

contravention of court orders and dalliance are not condonable, the dismissal

of Appellant’s case was disproportionate to two months of noncompliance.

Compare Rohm & Haas Co. Co., supra; Sahutsky, supra; Philadelphia

Contributorship Ins., supra; Croydon Plastic Co., Inc., supra.

Second, concerning whether Appellant acted willfully or in bad faith,

Appellant repeatedly cancelled depositions the day before, or business day

before, the scheduled date. She also requested a continuance of court-

ordered deposition dates on the day by which the court had dictated the

deposition must occur. As well, Appellant offered almost no legitimate

explanations for failing to submit to a deposition. See Sakutsky, supra.

Contrary to Appellant’s assertion, Appellee need not have subpoenaed

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Appellant to require her to submit to a deposition; Appellee’s notices of

deposition alone obligated Appellant to cooperate. See Pa.R.A.P. 4007.1(a)

(stating: “… A party noticed to be deposed shall be required to appear without

subpoena”). Furthermore, with the possible exception of Appellant’s illness in

mid-December 2019, the reasons she proffered did not arise, nor did she

allege they arose, so suddenly that they were legitimate excuses for

Appellant’s last-minute cancellations. Thus, we agree with the trial court that

Appellant acted willfully and in bad faith. See Sakutsky, supra.

As to the remaining factors (prejudice to Appellee, the ability to cure the

prejudice, and the importance of the precluded evidence in light of the failure

to comply), we also agree with the trial court that Appellant’s deposition

testimony is a vital source of information crucial to both Appellant’s claim and

Appellee’s defense. Deposing Appellant, however, is not the only means by

which Appellee could gain all information necessary to establish a defense.

For example, if Appellee has not already done so, Appellee could request

Appellant answer interrogatories and produce relevant documentation. See

Pa.R.C.P. 4005, 4009.11. Second, Appellee could attempt to collect from Mr.

Abramowitz details of his representation of Appellant. See Pa.R.C.P. 4009.21.

See also Salsman v. Brown, 51 A.3d 892, 894-95 (Pa.Super. 2012)

(explaining client waives attorney-client privilege when client challenges

counsel’s integrity and professionalism).

Furthermore, the record includes no indication that the court had

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scheduled trial or even entered a case management order setting discovery

deadlines. Appellee could have continued to pursue Appellant’s deposition, as

Appellee did not face an impending date by which it must have completed

discovery or filed dispositive motions, and was not pressed for time to prepare

for trial. See Steinfurth, supra. Thus, Appellant’s refusal to fulfill her

discovery obligations did not so seriously prejudice Appellee to justify the

extreme sanction of dismissing Appellant’s case. See id.

Based upon the foregoing, although Appellant’s repeated and untimely

defiance of Appellee’s deposition notices and the court’s discovery orders

exhibited bad faith, consideration of all relevant factors compels us to conclude

that dismissal is disproportionate to Appellant’s discovery transgressions. See

Scampone, supra; Weist, supra. See also Rohm & Haas, Co., supra.

Accordingly, we vacate the court’s order dismissing Appellant’s case and

remand for further proceedings.1

Order vacated; case remanded for further proceedings. Jurisdiction is

relinquished.

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1Upon remand, the trial court may consider imposition of a discovery sanction
more appropriately suited to Appellant’s misconduct. See Scampone, supra
at 628 (directing trial court to consider on remand alternative sanction
commensurate with litigant’s discovery violations); Brunetti v.
Southeastern Pennsylvania Transp. Authority, 478 A.2d 889, 891
(Pa.Super. 1984) (reversing discovery sanction order that put litigant out of
court, but opining less severe penalty would have been appropriate). See
also Pa.R.C.P. 4019(a)(1)(viii), (c)(5).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2020

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