J-A05034-22
2022 PA Super 70
TRUE RAILROAD REALTY, INC. AND : IN THE SUPERIOR COURT OF
TRUE RAILROAD ASSOCIATES, LP. : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 551 MDA 2021
MCNEES WALLACE AND NURICK, :
LLC.
Appeal from the Order Entered April 9, 2021
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2018-CV-01699-CV
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 19, 2022
Plaintiff/Appellant True Railroad Realty, Inc. and True Railroad
Associates, LP (“True Railroad”) appeals from the order entered in the Court
of Common Pleas of Dauphin County granting motions for summary judgment
filed on behalf of Defendant/Appellee McNees Wallace and Nurick, LLC.
(“McNees”).
True Railroad asserts that summary judgment constituted the most
severe discovery sanction available to the trial court, which erroneously
granted the motion without first conducting an appropriate analysis prescribed
by our jurisprudence. Determining that True Railroad relies on inapposite
decisional law, and otherwise finding the trial court properly applied
Pennsylvania Rule of Civil Procedure 1035.2, we affirm.
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* Former Justice specially assigned to the Superior Court.
J-A05034-22
The trial court’s November 20, 2020, memorandum opinion granting
summary judgment in favor of McNees sets forth the relevant facts and
procedural history, as follows:
By Civil Action Complaint filed March 6, 2018, Plaintiff, True
Railroad Realty, Inc. and True Railroad Associates, L.P. (“True
Railroad”) brought the present [legal malpractice] cause of action
against Defendant, McNees Wallace & Nurick, LLC, (“McNees”) and
individual attorneys of the firm. [fn 1] Pursuant to 231 Pa Code §
1000 et seq., and Pa.R.Civ.P. 1024.3, Certificates of Merit were
filed May 4, 2018.
fn 1 The attorneys named in the Complaint were later
dismissed from this action.
The [underlying case upon which the present legal malpractice
case is based involved] McNees’ pursuit of a Declaratory Judgment
Action (“DJA”) [on behalf of] True Railroad as Plaintiff versus Ames
True Temper, Inc., (“Ames”) in Cumberland County in November
2011. By the DJA, True Railroad sought the [trial court’s]
interpretation of a purchase option within the Commercial Lease
Agreement (“Lease”) between True Railroad, as lessee, and Ames,
as lessor. In response to the Motion for Judgment on the
Pleadings filed by McNees on behalf of True Railroad, Ames filed a
Cross-Motion for Judgment on the Pleadings. The Cumberland
County Court granted Ames’ Cross-Motion and McNees sought
reconsideration which was summarily denied. Notice of Appeal
from the [declaratory judgment] was filed but such was ruled
untimely.
In the present matter, True Railroad asserts that McNees
committed professional negligence by pursuing a DJA [seeking
interpretation of the purchase option] instead of a civil action
[alleging the language of the purchase option] was sufficiently
ambiguous to allow for discovery and the introduction of parol
evidence, which [True Railroad believes] was favorable to [its
cause]. True Railroad alleges that McNees compounded this error
by seeking reconsideration based on [McNees’] belief that the
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Cumberland County Court’s decision was interlocutory and failing
to file a timely appeal. True Railroad claims that . . . McNees’
error . . . required [True Railroad] to sell a parcel of land to Ames,
[caused it] to incur attorney’s fees, and [subjected it to a court
order] to pay sanctions and attorney’s fees through the
protracted, unsuccessful appellate process causing it significant
monetary harm.
On October 11, 2019, McNees filed an Administrative Application
for Status Conference . . . by which it sought management
deadlines for the efficient resolution of this matter. Such was
sought as McNees alleged that True Railroad was not making its
witnesses available for depositions. Following a Status
Conference in Chambers, the [trial court] issued a Scheduling
Order dated December 9, 2019.
At the request of Counsel, a subsequent telephonic Case
Management Conference was conducted on April 20, 2020. By
Order of April 20, 2020 (the “Case Management Order”), the [trial
court] set forth, inter alia, that discovery was to be completed on
or before July 13, 2020; True Railroad was to produce its expert
reports on or before August 24, 2020; McNees was to produce its
expert reports on or before September 21, 2020, and the parties
could file supplemental and rebuttal reports on or before October
2, 2020. In addition, dispositive motions were due by October 26,
2020. The Case Management Order was amended April 23, 2020,
limited to changing the trial date; all other deadlines remained the
same.
On August 26, 2020, McNees filed [a] Motion for Summary
Judgment, well before the [dispositive motions] deadline of
October 26, 2020 and only two days after the August 24, 2020
deadline for the production of True Railroad’s expert reports, per
the Case Management Order. In its Motion for Summary
Judgment, McNees assert[ed] that True Railroad’s claim for
professional negligence fail[ed] as a matter of law because True
Railroad failed to produce an expert report to support its
allegations of professional negligence, that True Railroad failed to
establish prima facie evidence to support their claim for
professional negligence, and that True Railroad’s claims were
barred by the Statute of Limitations.
Counsel for True Railroad did not file a formal Response to the
Motion for Summary Judgment as required by Pa.R.Civ.P.
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1035.3(a)(1), in order to refute the claims made by McNees. True
Railroad did file a brief in opposition, however, in which it claimed
that the summary judgment motion was premature on the failure
to file an expert report claim because discovery had not
concluded.
[The trial court determined Plaintiff True Railroad’s assertion was
one which] True Railroad was required to raise in a formal
Response to the summary judgment motion. As such, [the trial
court opined, the brief] was not a proper ground to consider in
addressing [True Railroad’s] failure to comply with [the trial
court’s] Case Management Order requiring all expert reports by a
date certain.
[Thus, the trial court relied on jurisprudence recognizing that
within a court’s inherent power to enforce its own orders of court
resides the authority to dismiss for failure to comply with
deadlines, for to preclude such enforcement authority “would
countenance the dilatory actions of litigants who blatantly
disregard court orders.” As such, the trial court concluded] the
record before [it] was clear that McNees is entitled to judgment
as a matter of law for failure by True Railroad to produce an expert
report. [Accordingly, it entered its order of November 20, 2020,
granting Defendant McNees’ Motion for Summary Judgment and
dismissing, with prejudice, all claims asserted in True Railroad’s
Amended Complaint.]
Trial Court Opinion and Order, 11/20/20, at 2-4.
In this timely appeal, True Railroad raises the following question for our
consideration:
Did the trial court properly sanction a party’s first-time, good-faith
discovery deficiency by dismissing Plaintiff-Appellants’ claims with
prejudice?
Brief for Appellant, at 3.
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
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error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347 (Pa.
Super. 2006).
Judicial discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if, in
resolving the issue for decision, it misapplies the law or exercises
its discretion in a manner lacking reason. Similarly, the trial court
abuses its discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super. 2000) (internal
citations and quotation marks omitted). Our scope of review is plenary.
Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert.
denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).
In reviewing a trial court's grant of summary judgment:
[W]e apply the same standard as the trial court, reviewing all the
evidence of record to determine whether there exists a genuine
issue of material fact. We view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary judgment
be entered. All doubts as to the existence of a genuine issue of a
material fact must be resolved against the moving party.
Motions for summary judgment necessarily and directly implicate
the plaintiff's proof of the elements of [a] cause of action.
Summary judgment is proper if, after the completion of discovery
relevant to the motion, including the production of expert reports,
an adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of action
or defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the cause
of action or defense, which could be established by additional
discovery or expert report and the moving party is entitled to
judgment as a matter of law, summary judgment is appropriate.
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Thus, a record that supports summary judgment either (1) shows
the material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action or
defense.
Upon appellate review, we are not bound by the trial court's
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa. Super. 2006)
(internal citations and quotation marks omitted).
Herein, True Railroad argues that imposition of summary judgment as
a first response to its non-compliance with the Case Management discovery
and expert report deadlines constituted an improper discovery sanction
disproportional to both the violation at issue and the minimal, if any, prejudice
experienced by McNees. The delay of several months, in the midst of a
pandemic disrupting many aspects of the legal process, was hardly prejudicial,
True Railroad maintains, and the trial court erred by refusing to accept its
post-motion offer to complete all fact discovery and expert reports within 30
days and, thus, cure any negative consequence it may have caused.
In this regard, True Railroad claims the trial court wrongly granted
McNees’ motion for summary judgment without first following the procedure
specified in Steinfurth v. LaManna, 590 A.2d 1286 (Pa. Super. 1991), which
sets forth a four-factor test for trial courts to apply when considering a
sanction for a plaintiff’s violation of discovery rules. The factors to be analyzed
are: (1) the prejudice to the non-offending party and the ability of the
offending party to cure the prejudice; (2) the offending party’s bad faith or
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willfulness in failing to provide discovery; (3) the importance of the excluded
evidence in light of the failure to provide discovery; and (4) the number of
discovery violations by the offending party. Steinfurth, 590 A.2d at 1288.
True Railroad notes our appellate courts have observed that although
a trial court possesses “great discretion in fashioning remedies or sanctions
for violations of discovery rules and order . . . the courts highly disfavor
dismissal of an action . . . as a sanction for discovery violations absent the
most extreme of circumstances.” Brief of Appellant, at 14 (citing City of
Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary), 985 A.2d
1259, 1269 (Pa. 2009).
Notwithstanding this precedential admonition, True Railroad protests,
the trial court dismissed the present action without consideration of
Steinfurth’s four factors and in disregard of its Brief in Opposition and oral
argument, which both claimed that no prejudice befell McNees and denied any
willfulness on its part where its only error was to engage in “admittedly-
fumbling efforts to ask McNees about the continuation of depositions in June
2020.”1
____________________________________________
1 True Railroad’s position was that its counsel was apparently awaiting McNees
to complete its depositions of True Railroad principals before True Railroad
would commence discovery of McNees lawyers and submit its expert reports.
There was no dispute, however, that the Case Management Order’s deadlines
applicable to Plaintiff True Railroad’s discovery and expert reports remained
in effect at all relevant times.
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Expounding on its position that its discovery missteps caused minimal
prejudice, True Railroad insists that delays of several months are not
uncommon in complex civil litigation, and, in any event, the disruptive effects
of the Covid pandemic were the predominant scheduling obstacle the parties
faced during the relevant time and, thus, further attenuated any adverse
consequences attributable to True Railroad.
In fact, True Railroad asserts, the trial court explained that with True
Railroad having filed a response to the motion for summary judgment that
failed to conform with the requirements of the Rules of Civil Procedure and
Dauphin County Local Rules governing summary judgment, the trial court
could neither consider the nonconforming response nor speculate as to the
reasons set forth therein.
For its part, however, the trial court clarifies its
first and primary reason [for granting summary judgment] was
that Plaintiffs [True Railroad] had failed to submit an expert report
within the time parameters set forth in [the trial court’s] case
management order. Plaintiff’s failure precluded them from
presenting any expert testimony at trial in support of their
attorney malpractice claim. See Storm v. Golden, 538 A.2d 61
(Pa. Super. 1988) (“expert testimony is necessary to establish
negligent practice in any profession,” including legal malpractice,
in order to establish the degree of skill and care required of
attorneys) (citation omitted).
Trial Court’s Supplemental Memorandum, 5/11/21, at 2.
At the hearing on the motion for summary judgment, the court
discerned no reason why True Railroad could not have either completed its
depositions timely or recognized that it was up against deadlines and taken
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necessary steps to secure an amended Case Management Order with the trial
court. N.T., 11/20/20, at 24.
True Railroad acknowledges in hindsight that there was no reason to
wait for McNees to complete its depositions because Pennsylvania does not
apply priority sequencing in depositions and it otherwise knew its deadlines
were approaching. In fact, at the time McNees filed its motion for summary
judgment, True Railroad was six weeks into its discovery violation and it still
had not conduced a deposition or asked the trial court to extend its deadlines.
Again, however, True Railroad attributes its failure to a well-intentioned,
if poorly considered, deference to McNees to complete its depositions before
it commenced its own. True Railroad, therefore, challenges the view that its
delay reflected a purposeful disregard or willfulness for the court’s Case
Management Order.
True Railroad concludes, therefore, that application of the first two
prongs of the Steinfurth four-factor test requiring an assessment of prejudice
and willfulness, respectively, reveals neither factor was met. By way of
comparison to prior decisions involving dismissals under Steinfurth,
moreover, True Railroad argues the facts of the present case compare
favorably to such decisions which either affirmed in the wake of longstanding
discovery violations lasting many months or even years or reversed despite
lengthier delays than the one at bar. See Brief of Appellant, at 23. Such
decisions, True Railroad concludes, stand for the proposition that only the
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most egregious discovery violations should be met with dismissal. See, e.g.,
Cohen v. Moore Becker, P.C., 241 A.3d 465, *4 (Pa. Super. 2020).
McNees responds that Steinfurth represents inapposite jurisprudence,
as the trial court in the present case granted summary judgment not as a
sanction for discovery violations but because True Railroad failed to supply
sufficient admissible evidence to support each element of its professional
negligence claim. This undisputable fact occurred, McNees claims, when the
uncontested deadline for expert reports had passed without True Railroad
securing a requisite expert report to substantiate its professional negligence
claim.
Indeed, McNees observes that nowhere in the record does the trial court
refer to either a “discovery violation” or a “discovery sanction”, as it conducted
its analysis of the motion for summary judgment under the rubric of Rule
1035.2. Undertaking its Rule 1035.2 review, the trial court determined that
True Railroad could not identify any genuine issue of material fact or establish
a prima facie case without expert testimony.
Finally, McNees opposes the contention that the trial court erred when
it refused to grant True Railroad’s post-motion request for a continuance or
extension of the deadlines set by the Case Management Order. True Railroad
had over two years in which to commence, let alone complete, discovery,
which was more than adequate time to depose the principals involved, McNees
asserts. Yet, nowhere in this timeline does True Railroad exhibit a duly diligent
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attempt to obtain any depositions or expert reports, which in McNees’ view
validates the trial court’s exercise of discretion in denying True Railroad’s
request for a continuance and granting McNees’ summary judgment motion.
After careful review of the record, the parties’ respective arguments,
and controlling decisional law, we agree with McNees that Miller v. Sacred
Heart Hosp., supra, and not Steinfurth, applies to the present matter.
In Miller, this Court distinguished between a summary judgment case
and a discovery sanctions case, and it determined that the Steinfurth four-
factor test did not apply to a summary judgment motion filed for a defendant’s
failure to comply with the deadline for submission of expert reports necessary
to a medical malpractice action. Specifically, we reasoned:
We conclude, accordingly, that our decision in Steinfurth
prescribes the proper inquiry for application of discovery sanctions
under Rule 4019 (SANCTIONS), not summary judgment under
Rule 1035.2 or its predecessor Rule 1035. Nowhere does our
opinion in Steinfurth purport to interpret Rule 1035.2 or to
govern any aspect of its application. Though we ultimately
reversed the trial court's order, we did so because the plaintiffs'
violation of the discovery rules was not sufficiently severe to
deserve the ultimate sanction of dismissal under Rule 4019(a).
Significantly, we did not address whether the plaintiffs had
demonstrated a prima facie case under Rule 1035.2. Thus, our
decision in Steinfurth governs application of a different remedy
than is at issue in the case before us, in response to a different
motion, at a different procedural stage of the action.
The manner in which this case is distinct from Steinfurth is
critical to our analysis, as it was fundamental to the trial court's
disposition of Defendants' motions for summary judgment.
Simply stated, Steinfurth is a sanctions case, not a summary
judgment case. Because the court's order in this case was entered
not as a sanction for a procedural violation, but rather, to address
a substantive deficiency of proof in Miller's cause of action, the
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order is properly subject to review only under Rule 1035.2 and
cases interpreting it.
Miller, at 832-33.
Accordingly, Miller analyzed Rule 1035.2 and stated its purpose was to
“eliminate cases prior to trial where a party cannot make out a claim or a
defense after relevant discovery has been completed.” Id. at 833 (quoting
Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997). Recognizing that
summary judgment is appropriate when a party fails to produce evidence of
facts essential to a cause of action, the Miller court turned to the case before
it and observed:
a medical malpractice plaintiff generally must produce the opinion
of a medical expert to demonstrate the elements of his cause of
action. . . . Thus if, at the conclusion of discovery , the plaintiff
fails to produce expert medical opinion addressing the elements
of his cause of action within a reasonable degree of medical
certainty, he has failed to establish a prima facie case and may
not proceed to trial. At this juncture, a moving party is entitled
to summary judgment under rule 1035.2.
Id. at 834.
After reasoning that the matters central to the medical malpractice case
before it were sufficiently complex to reside beyond the range of experience
of laypersons and, thus, required guidance by an expert medical report, Miller
concluded
that in failing to produce an expert opinion to substantiate the
elements of her claim, Miller failed to demonstrate a prima facie
case of medical negligence. In accordance with the purpose and
provisions of Rule 1035.2, the Defendants were entitled to
summary judgment. Consequently, the trial court's entry of
summary judgment was correct and appropriate.
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Id.
Like the defendants in Miller, McNees did not file an application for
discovery sanctions pursuant to Rule 4019, it filed only a motion for summary
judgment under Rule 1035.2 premised solely on the position that True
Railroad could not substantiate each element of its claim without a requisite
expert report explaining both the intricacies of the legal issues implicated in
the complex civil litigation and an opinion offered to a reasonable degree of
legal certainty that McNees’ representation in the underlying matter fell below
the standard of due care. As a result, the motion posited, True Railroad could
not establish a prima facie case, such that McNees was entitled to summary
judgment.
Under this record, we discern no error with the trial court’s entry of
summary judgment. True Railroad had two years to acquire a legal expert’s
opinion before the Case Management Order’s August 24, 2020, deadline, but
it neither met this deadline nor filed a motion with the trial court to extend
the deadline as the date loomed closer.
As the record thus demonstrates True Railroad was given ample time in
which to satisfy its evidentiary burden of producing an expert report but failed
to act with due diligence to accomplish this, we concur with the trial court that
entry of summary judgment was warranted. See Kerns v. Methodist Hosp.,
574 A.2d 1068, 1074 (Pa. Super. 1990) (upholding denial of non-moving
party’s request for a discovery continuance after summary judgment motion
was filed, where adequate time for discovery had already expired and the
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requesting party failed to show due diligence in seeking discovery and
information material to their case ).
For the foregoing reasons, we affirm the trial court’s order granting
summary judgment in favor of Defendants/Appellees McNees.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/19/2022
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