J-A04003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHEN KINDER, SR. AND DEBRA             IN THE SUPERIOR COURT OF
KINDER,                                         PENNSYLVANIA

                         Appellants

                    v.

HERITAGE LOWER SALFORD LP,
HERITAGE-LEDERACH, L.P., HERITAGE
BUILDING GROUP, HERITAGE BUILDING
GROUP, INC., HBG LEDERACH, INC.,
HBG LOWER SALFORD, INC., HERITAGE
CONSTRUCTION CO., INC., HERITAGE
HOMES GROUP, HERITAGE HOME
GROUP, INC., HERITAGE RESIDENTIAL,
BENCHMARK REAL ESTATE COMPANY,
INC.,

                         Appellees

                    v.

EXTERIORS ASSOCIATES, INC.,
EXTERIORS, INC., BRADCO WICKES,
WICKES COMPANIES, INC., WICKES,
INC., WICKES LUMBER, BR WICKES,
INC., SUPERIOR PLASTERING, INC.,
PENTEL ENTERPRISES, INC., ADVENT
INTERNATIONAL CORPORATION,

                         Appellees

                    v.

WIRE LATHE, INC.,
                                               No. 3813 EDA 2015
                         Appellee


           Appeal from the Order Entered November 23, 2015
          In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 10-11441
J-A04003-17


BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                                    Filed May 30, 2017

       Appellants, Stephen Kinder, Sr. and Debra Kinder, appeal from the

order granting summary judgment in favor of Appellees in this action

brought for breach of contract, breach of warranty, and violation of the

Pennsylvania      Unfair   Trade    Practices    and   Consumer   Protection   Law.1

We affirm.

       The trial court summarized the procedural history of this case as

follows:

             On April 30, 2010, [Appellants] filed suit against the
       builder, Heritage, claiming that Heritage defectively constructed
       their house at 870 Clubhouse Drive in the Lederach Golf Club
       Development.1      More specifically, [Appellants] assert that
       Heritage’s defective construction resulted in water intrusion
       through the exterior stucco cladding and into the interior of their
       home.     The complaint likewise alleges that the Heritage
       [Appellees] failed to properly, if at all, respond to warranty
       claims and/or to perform necessary warranty work on the
       [Appellants’] home. Finally, [Appellants] allege that the Heritage
       [Appellees] failed to perform required remediation and repairs,
       and failed to offer to reimburse [Appellants] for the cost of
       remediation and/or necessary repairs done by [Appellants].
              1
                 The Complaint names the following Heritage
              entities as Defendants herein: Heritage-Lederach,
              L.P; HBG Lederach, Inc.; Heritage-Lower Salford,
              L.P.; HBG-Lower Salford, Inc.; Heritage Construction
              Co[.], Inc; Heritage Building Group, Inc. t/d/b/a
              Heritage Building Group; and, Benchmark Real
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    73 P.S. §§ 201-1-201-9.3.



                                           -2-
J-A04003-17


            Estate Company, Inc. t/d/b/a Heritage Residential
            (hereafter “Heritage Defendants”)[.]

            The Heritage [Appellees] did not perform any of the actual
      construction work on [Appellants’] home.        Heritage utilized
      subcontractors.    As a result, Heritage then joined various
      subcontractors as [a]dditional [d]efendants, who in turn, joined
      their subcontractors. That is, Heritage joined Pentel Enterprises
      (the framer); Superior Plastering, Inc. (stucco work);
      Environmental Stoneworks, LLC (stone work) and Exteriors, Inc.
      (the roofer) as [a]dditional [d]efendants.             Additional
      [d]efendant, Superior Plastering, Inc., then joined, Wire Lathe,
      Inc. who was Superior’s subcontractor.

            On October 17, 2011, the aforementioned [d]efendants
      and [a]dditional [d]efendants performed a visual inspection of
      [Appellants’] house. [However, a]dditional [d]efendant Wire
      Lathe, Inc. had not yet been joined as a party to the lawsuit.
      Consequently, it did not participate in the visual inspection.

             In March of 2012, [Appellants], without notice to their
      counselor [or] to [the] aforementioned [d]efendants, hired
      remediation contractors and undertook remediation work on the
      subject area, thereby destroying the very property at issue in
      their lawsuit. [Appellants’] actions prevented [Appellees] from
      performing a physical inspection of the property in order to
      determine the true source/cause of the water infiltration, and
      ultimately mount a defense and/or establish their cross-claims.

            On October 8, 2015, after hearing and argument, the trial
      court granted [Appellees’] Joint Motion Regarding Spoliation.2
            2
               On November 12, 2015, the trial court denied
            [Appellants’] Motion for Reconsideration regarding
            this ruling.

             On November 23, 2015, after hearing and argument, the
      trial court granted [Appellees’] Motion for Summary Judgment
      based upon [Appellants’] inability to establish the elements of
      their claims as a result of the previous spoliation sanction.

            [Appellants] timely appealed the aforementioned rulings.

Trial Court Opinion, 6/2/16, at 1-3 (emphasis in original).

                                     -3-
J-A04003-17


      Appellants present the following issue for our review:

           Did the trial court abuse its discretion or err as a matter of
      law by granting [Appellees’] Motion for Summary Judgment
      when a less severe sanction was available in light of the
      extensive information in [Appellees’] possession?

Appellants’ Brief at 4.

      Appellants argue that the trial court abused its discretion in granting

Appellees’ motion in limine and barring Appellants from presenting evidence

at trial, which led to the eventual dismissal of the action by the granting of

summary judgment.         Appellants’ Brief at 13-16.   Appellants allege that all

parties have hundreds, if not thousands, of photographs of the property

taken when construction began until the present.          Id. at 13.   Appellants

contend that despite this information in the possession of Appellees, the trial

court imposed the most severe sanction that led to the dismissal of the

action.   Id.   Appellants believe that Appellees were or should have been

aware of the remediation efforts and that less extreme sanctions by the trial

court, such as a jury instruction on spoliation of evidence, were available.

Id. at 14.      Further, Appellants claim the trial court disregarded “the

information in [Appellees’] possession” and assert that their “duty to

preserve evidence is not infinite.” Id. at 15. Appellants assert that the trial

court abused its discretion in light of the fact that they purchased the

residence in February of 2006, filed their complaint in April of 2010, and

after living with leaks in the home for years, did not begin remediation

efforts until 2012. Id. at 16.

                                       -4-
J-A04003-17


      In reviewing matters of summary judgment, we are governed by the

following well-established principles:

      Our scope of review of an order granting summary judgment is
      plenary.   We 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. Chenot v. A.P. Green
      Services, Inc., 895 A.2d 55, 60-61 (Pa. Super. 2006) (citation
      omitted).

             Motions for summary judgment implicate the plaintiff’s
      proof of the elements of his cause of action. Chenot, 895 A.2d
      at 61 (citation omitted). 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.” Pa.R.C.P.
      1035.2(2). 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,” Pa.R.C.P. 1035.2(1), and the
      moving party is entitled to judgment as a matter of law,
      summary judgment is appropriate. 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. Chenot, 895 A.2d
      at 61.

            When reviewing a grant of summary judgment, we are not
      bound by the trial court’s conclusions of law, but may reach our
      own conclusions. Id. We will disturb the trial court’s order only
      upon an error of law or an abuse of discretion.            “Judicial
      discretion requires action in conformity with law on facts and
      circumstances before the trial court after hearing and
      consideration.” Chenot, 895 A.2d at 61 (citation omitted).
      Consequently, the court abuses its discretion if, in resolving the
      issue for decision, it misapplies the law, exercises its discretion
      in a manner lacking reason, or does not follow legal procedure.
      Id. (citation omitted).

                                     -5-
J-A04003-17


             Where the discretion exercised by the trial court is
      challenged on appeal, the party bringing the challenge bears a
      heavy burden. It is not sufficient to persuade the appellate court
      that it might have reached a different conclusion if charged with
      the duty imposed on the court below; it is necessary to go
      further and show an abuse of the discretionary power. Chenot,
      895 A.2d at 61 (citation omitted). An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied or the judgment exercised is
      manifestly unreasonable or the result of partiality, prejudice,
      bias or ill-will, as shown by the evidence or the record, discretion
      is abused. Id. at 61-62 (citation omitted).

Continental Casualty Company v. Pro Machine, 916 A.2d 1111, 1115-

1116 (Pa. Super. 2007).

      In addition, we are mindful of the following legal principles regarding a

review of spoliation of evidence.    Our Supreme Court has explained that

“‘[s]poliation of evidence’ is the nonpreservation or significant alteration of

evidence for pending or future litigation.” Pyeritz v. Commonwealth, 32

A.3d 687, 692 (Pa. 2011) (footnote omitted).

            When reviewing a court’s decision to grant or deny a
      spoliation sanction, we must determine whether the court
      abused its discretion. Croydon Plastics Co. v. Lower Bucks
      Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (“the
      decision whether to sanction a party, and if so the severity of
      such sanction, is vested in the sound discretion of the trial
      court”), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). “An
      abuse of discretion is not merely an error in judgment; rather it
      occurs when the law is overridden or misapplied, or when the
      judgment exercised is manifestly unreasonable or the result of
      partiality, prejudice, bias or ill-will.” Pilon v. Bally Eng’g
      Structures, 435 Pa. Super. 227, 645 A.2d 282, 285, appeal
      denied, 539 Pa. 680, 652 A.2d 1325 (1994).

Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d

1263, 1269 (Pa. Super. 2001).

                                     -6-
J-A04003-17


       To determine the appropriate sanction for spoliation, the trial
       court must weigh three factors:

              (1) the degree of fault of the party who altered or
              destroyed the evidence; (2) the degree of prejudice
              suffered by the opposing party; and (3) whether
              there is a lesser sanction that will avoid substantial
              unfairness to the opposing party and, where the
              offending party is seriously at fault, will serve to
              deter such conduct by others in the future.

       Mount Olivet, 781 A.2d at 1269-70 (quoting Schmid v.
       Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)).[2]
       In this context, evaluation of the first prong, “the fault of the
       party who altered or destroyed the evidence,” requires
       consideration of two components, the extent of the offending
       party’s duty or responsibility to preserve the relevant evidence,
       and the presence or absence of bad faith. See Mount Olivet,
       781 A.2d at 1270. The duty prong, in turn, is established
       where: “(1) the plaintiff knows that litigation against the
       defendants is pending or likely; and (2) it is foreseeable that
       discarding the evidence would be prejudicial to the defendants.”
       Id. at 1270-71.

       Creazzo v. Medtronic, Inc., 903 A.2d 24, 29 (Pa. Super. 2006)
       (original brackets omitted).

PTSI, Inc. v. Haley, 71 A.3d 304, 316 (Pa. Super. 2013).

       In Creazzo, this Court considered whether the trial court erred in

granting summary judgment in a products liability claim where the plaintiff

failed to produce the allegedly defective medical device due to loss by the

treating hospital. In affirming the trial court’s order, we determined that the

plaintiff bore responsibility for preservation of the device and that the fact
____________________________________________


2
  The three-part spoliation test set forth in Schmid was adopted by our
Supreme Court in Schroeder v. Commonwealth, Department of
Transportation, 710 A.2d 23, 27 (Pa. 1998).



                                           -7-
J-A04003-17


that it was lost by a third party did not excuse that responsibility. Id. at 29-

30. Further, we concluded that failure to produce the device was prejudicial

to the defendant because the defendant’s expert did not have an opportunity

to examine it, and proof of a defect in the particular device used was

essential to the plaintiff’s claim. Id. at 30.

      In the instant case, the trial court offered the following analysis, which

we adopt as our own:

            The trial court correctly determined that [Appellants] were
      largely at fault for destroying the evidence at issue. Case law is
      clear that there is an affirmative duty on the part[] of a plaintiff
      not to destroy the evidence which is the fundamental core of the
      case in litigation. In addition, courts more readily attribute
      blame for the destruction of evidence against a party who has an
      attorney at the time of spoliation[.] Roselli v. General Elec. Co.,
      599 A.2d 685 (Pa.Super. 1991); Tanaglia v. P&G, 737 A.2d 306
      (Pa.Super. 1991)[.]

              In this regard, the record showed that [Appellants] had an
      attorney and remediated a house which had been in active
      litigation for two (2) years, without notifying [Appellees] or their
      own attorney of the same. [Appellants] filed suit for water
      damage in their home and then erased the destructed area prior
      to the defense experts conducting a physical inspection so that
      each could identify the cause/source of the subject water
      infiltration, and present a defense.          [Appellants] had a
      duty/responsibility to preserve the very evidence that was the
      subject of their lawsuit and [Appellants] violated that duty.
      [Appellants’] counsel concedes as much with the following
      exchange on the record:

            MR. ONORATO: ... My clients remediated without
            knowledge - without my knowledge ... This was a
            four month remediation, Your Honor. ...

            THE COURT: Okay. Did you let them[, Appellees,]
            know this was going on at the time?


                                       -8-
J-A04003-17


          MR. ONORATO: I had no knowledge?

          THE COURT: So how could they[, Appellees,] have
          gotten there? ...

          THE COURT: Do you have any kind of affirmative
          duty here to let them know?

          MR. ONORATO: Your Honor, I believe if I had known
          [Appellants] were doing that I would have certainly
          given advance notice to [Appellees] that there was
          going to be remediation going on. ...

     (Notes of Testimony-Motions in Limine, 9/23/15, pgs. 29-30)[.]

            In addition, the scheduled remediation was not an
     oversight. [Appellants] did not remediate under emergency
     circumstances. According to [Appellants], they had been living
     in a home with water intrusion for approximately five (5) years.
     Further, their lawsuit had also been active for two (2) years.
     Thus, there was no justifiable reason for [Appellants] to
     remediate the damaged area during litigation, and even less of a
     justification to do so without notice to [Appellees]. (Notes of
     Testimony-Motions in Limine, 9/23/15, p.12)[.]

          Looking at the next element for spoliation, the trial court
     was persuaded by the compelling prejudice arguments presented
     by multiple [Appellees] in support of the Motion in Limine.
     Counsel for [Appellee]/builder, Heritage, explained the prejudice
     caused to his client as a result of the remediation,

          MR. BYRON: ... [Appellants’] case is against
          Heritage. Their contract is with Heritage. Heritage
          made certain warranties, you know, but the thing is,
          and it's an undisputable fact, Heritage itself didn’t lift
          a hammer to build these houses. They were built by
          subcontractors. So, Heritage has a legal right to put
          the blame where it rests if it can get the evidence to
          do that.

               If there’s a water leak coming into the
          kitchen, Heritage ought to be able to develop
          the facts with its expert, if that evidence is
          available, and in this case it’s not because

                                    -9-
J-A04003-17


          [Appellants] destroyed it, and point to which
          particular subcontractor was responsible for
          that leak. It’s our right.

                Heritage is the captain of the ship, that’s
          right, but that doesn’t mean I can’t get
          indemnification or contribution from the people
          who actually did the work that caused the
          leaks. ...

               If I can’t prove which subcontractor it
          was, then I’m stuck with liability that should
          flow somewhere else if I had the evidence to
          do that, but they destroyed the evidence.

     (Notes of Testimony---Motions in Limine, 9/23/13, pgs. 37-38
     and 39, emphasis added)[.]

           Defense counsel for Additional [Appellee], Wire Lathe, Inc.,
     further addressed the prejudice prong,

          MR. WALSH: ... With regard to the prejudice, there
          is severe prejudice in this case against not only my
          client but the other defendants and additional
          defendants in this case, Your Honor, because the
          crux of the case is the failure or the alleged failure of
          the exterior wall system to [Appellants’] house.

                This is a stucco exterior cladding and the
          argument is from [Appellants’] expert that the
          exterior    wall   system     essentially  failed.
          [Appellants’] expert, Mr. Wheatley, who is an
          architect himself, does not specifically identify
          the point of water intrusion into the house,
          does not specifically identify what was wrong
          or who did what wrong with regard to
          construction of the house.

               There is an acknowledgement from him
          and I believe from Heritage expert, Mr.
          Merkert, that in order to really identify the
          source of the water infiltration and the failure
          of the exterior wall system, you have to be
          present during remediation. You have to be

                                   - 10 -
J-A04003-17


          present when the stucco and the exterior
          cladding of the house is removed so that you
          can see the points of penetration, you can see
          the actual water damage.

                [Appellants] had made the argument that the
          experts can rely on the photographs which were
          taken during remediation, but I submit to the Court,
          Your Honor, that that is not actual proof of what
          went wrong with this exterior wall system. The
          photographs were taken by [Appellants] themselves.
          They were not even taken by an expert, and
          bear in mind, Your Honor, that [Appellants] did
          have an expert on board at the time that they
          did the remediation, but their expert wasn’t
          even present during remediation.             I had
          retained an expert to look at [Appellants’]
          deposition, the photographs and I attached a
          copy of Mr. Popolizios report.              He’s a
          professional engineer.

                His opinion is basically that without the
          opportunity to look at the actual underlayment
          during the course of remediation that he was
          unable to form an opinion within a reasonable
          degree of certainty. The reason I attached that
          report, Your Honor, is again to support our
          position that there is significant prejudice with
          regard to the spoliation.

     (Notes of Testimony- Motions in Limine, 9/23/15, pgs. 6-9,
     emphasis added)[.]

            Defendant Superior Plastering’s counsel also described
     [his] client’s prejudice,

          MR. ANASTASIA: John Anastasia, Your Honor, on
          behalf of defendant, Superior Plastering. We did the
          actual cement work, however, the additional
          defendant that we joined, Wire Lathe, who was our
          subcontractor did all the wiring, all the paper, the tar
          paper underneath, all the waterproofing, things of
          that nature, and there’s a large dispute over, so to
          speak, who is at fault for doing what. Were the

                                   - 11 -
J-A04003-17


          windows properly installed, how did the various
          levels overlap each other, was it appropriate, was it
          inappropriate.

                So I think Mr. Walsh articulated very well all of
          the points that are relevant in terms of examining
          the case law and the standards, but the reason I
          wanted to speak on this issue of the sanction
          and prejudice is because it’s a domino effect,
          Your Honor.

               If there’s no evidence permissible against
          Mr. Walsh because of the conduct of [Appellant]
          but I’m left standing in the case to defend
          myself against the subcontractor who I have a
          cross-claim against or a joinder claim against
          saying I just brought in the concrete, you have
          to contribute to the damages because you did
          something wrong, well, how can I prove my
          case? ...

               So, in essence, all [Appellees] have been
          deprived of the opportunity not only to defend
          themselves from [Appellants’] claims, but, just
          as importantly, if not more importantly,
          establish and prosecute their claims against
          each other and that is the critical fact.

     (Notes or Testimony-Motions in Limine, 9/23/15, pgs. 15-17,
     emphasis added)[.]

           Mr. Taylor, counsel, for Defendant Pental Enterprises
     likewise discussed the prejudice to [Appellees],

          MR. TAYLOR: Your Honor, I’m William Taylor
          representing Pentel Enterprises.    They were the
          rough carpenter and they installed the windows on
          this job. I want to just kind of support and bolster
          both Mr. Anastasia and Mr. Walsh’s argument.

                You know, the mapping of water intrusion
          into a building it really takes expert know how.
          ...


                                  - 12 -
J-A04003-17


                Every expert involved in this case has said
          in one way or the other that a visual inspection,
          which was permitted with the parties and their
          experts, will not adequately explain how this
          water got into [Appellants’] home and which
          component was at fault - which component of the
          exterior facade was at fault; the stucco, the
          windows, the roof.

                The only way to be reasonably sure of the - of
          how this water entered would be to allow the experts
          to have this physical inspection when this
          remediation took place when the stucco was
          removed, the windows were removed, and that was
          not, you know, obviously given us - we were not
          given that opportunity.

                So, it’s a critically important component
          for any construction forensics exam to have
          this physical exam. We just weren’t given the
          opportunity. ...

     (Notes of Testimony-Motions in Limine-9/23/15, pgs. 18-19,
     emphasis added)[.]

           Counsel Allison Perry discussed the prejudice to her client
     Exterior Associates.

          MS. PERRY: ... Another sort of trickle down
          effect with -if this-if ... [Appellants are] allowed
          to proceed with this claim is that they have
          somebody - ... on their side who was there and,
          you     know,       made       personal    firsthand
          observations and the jury will hear that.
          They’re going to hear from all of our experts,
          oh, we relied on photographs, we relied on
          documents, and that in and of itself is
          prejudicial.

               With regard to my client that did the roofing
          and trim work, Mr. Campbell, who did the
          remediation work and who will testify at trial, he’s
          not a roofing contractor.   He has no roofing
          experience. He[’s] not an expert in roofing, yet

                                  - 13 -
J-A04003-17


           he rendered certain opinions with regard to the
           work of my client.

                 Mr. Wheatley, their expert, then adopts
           those same opinions for the first time not
           included in his three prior reports and it’s
           anticipated that at trial he will offer those
           opinions against my client.

                 We did not have the benefit of having
           anybody from our side kind of there to look
           firsthand in order to rebut those arguments.

     (Notes of Testimony-Motions in Limine-9/23/15, pgs. 21-22)[.]

           Finally, the trial court correctly determined that a lesser
     sanction could not remedy the prejudice caused by [Appellants’]
     spoliation of the evidence herein.        [Appellees] needed to
     physically inspect the affected area in order to identify the
     source of the water intrusion and defend the claims against
     them.      [Appellants’] actions prevented such a physical
     inspection.    Further, [Appellants] argue that the trial court
     should have continued the matter to have all experts do reports
     based solely on the photographs taken by them. This stilted
     option was clearly untenable, and would force [Appellees] to
     defend [Appellants’] claims with evidence solely of [Appellants’]
     choosing.

                                   * * *

            In the case at bar, [Appellants] had the burden of
     establishing the source/cause of the water intrusion in order to
     establish the elements of their claim. [Appellants’] own expert,
     Mr. Wheatley, could not render an opinion as to which
     [d]efendant or [a]dditional [d]efendant was responsible for the
     alleged defects in the home. Moreover, once the court issued
     its’ spoliation sanction, [Appellants] were precluded from offering
     any such evidence against all [Appellees], thereby mandating
     the entry of summary judgment.

           As defense counsel for subcontractor Wire Lathe, Inc.,
     aptly argued,




                                   - 14 -
J-A04003-17


          MR. WALSH: So here we are. We’re at the eve of
          trial and scheduled for trial at the end of this month
          and based upon the evidentiary record that is now
          before the [c]ourt, that being a record which is
          devoid of any evidence to show a water intrusion
          problem was caused by the action on the part of my
          client, and, in fact, on the part of any of the
          defendants     or    additional     defendants,     that
          [Appellants] did not meet [their] burden of proof at
          trial. [They] did not establish a prima facie case.

                 If you look at the commentary notes to
          1035.2, it’s almost a burden shift at that point in
          time. When we raised that argument in the context
          of a Motion for Summary Judgment, the burden then
          shifts to the party opposing the motion to put forth
          some sort of evidence for an evidentiary record that
          they can, in fact, prevail at trial in putting forth a
          prima facie case that they could survive essentially a
          nonsuit at trial.

                Based upon the record, again, that's been
          produced – I’m not sure if you want to give
          [Appellants’] counsel some additional time - but I
          think his admission in court today is that he really
          doesn’t have much of anything left in this case once
          you take out the water intrusion issue. ...

                Based upon the [c]ourt’s spoliation ruling that
          there could be no evidence of water intrusion as to
          any defendant or additional defendant, there’s really
          nothing left of the case at that point. ...

     (Notes of Testimony 11/10/15, pgs. 38-39 and 40)[.]

           And, indeed, [Appellants’] counsel conceded, on the
     record, that there were no outstanding claims remaining.

          MR. ONARATO: We responded previously, Your
          Honor. I mean, if you are to reinstate your Orders
          or issue your Orders on spoliation, then I think for
          the most part our case is done. Again, if you like,
          we can assess that and get back to you on that


                                  - 15 -
J-A04003-17


            issue, but I think that that will cut the guts out of
            ninety-five percent of the case.

            THE COURT: How about I give you a week to let me
            know if there’s anything else outstanding for some
            reason.

            MR. ONARATO: Okay.       Thank you.    We appreciate
            the opportunity.

      (Notes of Testimony-Motion        for   Reconsideration/Summary
      Judgment 11/10/15, pg. 41)[.]

      Despite an extended opportunity to do so, [Appellants] were
      ultimately unable to present outstanding claims/questions of fact
      thereby making the entry of summary judgment proper herein.

Trial Court Opinion, 6/2/16, at 5-13 (emphases in original, footnote

omitted).

      Indeed, it was Appellants’ responsibility to preserve the areas of the

alleged defects, and this responsibility was not relieved because of the lapse

of time from the building of the home to the remediation.        Further, the

failure to preserve evidence was highly prejudicial to Appellees because the

claim required inspection of the particular areas of water intrusion during

remediation.   Hence, the proper barring of evidence resulted in Appellants

being unable to sustain their claims against Appellees. Accordingly, the trial

court did not err in granting summary judgment.

      To the extent Appellants claim that Appellees should have moved for

sanctions before seeking summary judgment, we observe that Appellees

moved for summary judgment pursuant to Pa.R.C.P. 1035.2. The Rules of

Civil Procedure do not require a motion for sanctions before summary

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judgment is sought. See Wolloch v. Aiken, 815 A.2d 594, 597-598 (Pa.

2002) (distinguishing discovery sanctions from summary judgment). Thus,

no relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/2017




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