J-A12012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TANYA BAILEY                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FERNANDO PERDIGAO AND JUDITE               :
    SANTOS PERDIGAO                            :   No. 2080 EDA 2017

              Appeal from the Judgment Entered June 23, 2017
     In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): May Term, 2015 No. 02228

BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED AUGUST 15, 2018

       Tanya Bailey (“Plaintiff”) appeals from the judgment entered following

a jury verdict in favor of Fernando Perdigao (“Defendant”) in this motor vehicle

negligence case. We affirm.

       Plaintiff filed a complaint alleging that Defendant was negligent in

causing a collision with Plaintiff’s car on a street in Philadelphia in October

2013.1    Plaintiff obtained a judgment against Defendant at an arbitration

proceeding, from which Defendant appealed.            Defendant was in Portugal

during the litigation of the case, and was deposed via video-conference in

August 2016, after expiration of the case’s discovery deadline.          At the

deposition Defendant produced for the first time photographs of the accident

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1Defendant’s wife, Judite Santos Perdigao, was also named as a defendant,
but was dismissed from the case prior to this appeal.
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scene that he had taken with his phone. On January 23, 2017, during the

subsequent trial, Plaintiff objected to the introduction or use of the photos

based upon the discovery violation. The trial court overruled the objection,

and the photos were admitted. The jury ultimately concluded that Defendant

was not negligent.

      Following the denial of Plaintiff’s post-trial motion and the entry of

judgment, Plaintiff filed a timely notice of appeal. Thereafter, both Plaintiff

and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Plaintiff maintains that the trial court abused its discretion in

allowing

      the admission into evidence and publication to the jury of several
      photographs taken at the accident scene, purportedly of the
      parties, the cars[,] and the location of the accident, when these
      photographs were not produced to [Plaintiff] until 71 days after
      the court[-]mandated case management order discovery deadline
      and 2 and a half years after the accident[.]

Appellant’s brief at 4.

      We consider Appellant’s arguments mindful of the following.

      [O]ur standard of review of a trial court’s decision to admit or
      exclude evidence is well-settled. When we review a trial court
      ruling on admission of evidence, we must acknowledge that
      decisions on admissibility are within the sound discretion of the
      trial court and will not be overturned absent an abuse of discretion
      or misapplication of law. In addition, for a ruling on evidence to
      constitute reversible error, it must have been harmful or
      prejudicial to the complaining party. 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.

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Stapas v. Giant Eagle, Inc., 153 A.3d 353, 367-68 (Pa.Super. 2016)

(quoting Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa.Super. 2008)).

      “All relevant evidence is admissible, except as otherwise provided by

law.” Pa.R.E. 402. “The court may exclude relevant evidence if its probative

value is outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. Further,

relevant evidence may be excluded as a sanction for violating pretrial

discovery rules where the opposing party suffers “unfair and prejudicial

surprise” as a result. Bindschusz v. Phillips, 771 A.2d 803, 811 (Pa.Super.

2001).

      Plaintiff’s arguments that the trial court abused its discretion in not

imposing a discovery sanction in the instant case are based solely upon the

fact that Defendant did not produce the photographs in compliance with the

case management order, and that the trial court did not require an explanation

from Defendant for the late production.      Appellant’s brief at 13.   Plaintiff

repeatedly notes that the photographs were produced seventy-one days after

they should have been, and complains that “they were grossly late” when

produced “at the last minute discovery deposition.” Id.

      Plaintiff properly states that the purpose of discovery rules “is to avoid

unfair surprise and prejudice by enabling the adversary to prepare a

meaningful response.” Id. at 16. However, rather than attempt to show how

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she was disadvantaged in any way by the timing of Defendant’s production of

the photographs, Plaintiff merely contends that courts must not allow rules to

be “violated with impunity.”2 Id. at 13.

       Plaintiff ignores that the photographs in question were not produced at

the last minute. They were given to Plaintiff a full five months before trial.

Defense counsel produced them as soon as they were obtained from

Defendant, who resided in Portugal during the litigation of the case.

       The trial court offered the following explanation of its decision to admit

the photographs.

       Nothing could be more relevant under Pennsylvania Rule of Civil
       Procedure 402, and less unfairly prejudicial to the Plaintiff, under
       Pennsylvania Rule of Evidence 403, than contemporary photos of
       the vehicles and the accident scene. . . . Plaintiff’s [claim of error]
       is grounded on the specious argument that Plaintiff was prejudiced
       by the production to Plaintiff by the Defense counsel of the photos
       after the Discovery Deadline and their subsequent introduction
       into evidence at trial. First, the Defense has an ongoing duty to
       provide discoverable information to the Plaintiff, and is to be
       applauded for doing so, not on the eve of trial, but 160 days before
       trial. There was no ambush on the eve of trial. There was no
       unfair prejudice to Plaintiff in the Court allowing photographs of
       the vehicles and the accident scene to be published to the jury.
       The photos were relevant under Rule of Evidence 402 and not
____________________________________________


2 Were we to adopt Plaintiff’s position that draconian consequences must be
imposed for even minor, non-prejudicial deviations from rules, we could refuse
to reach the substance of her appeal because her statement of errors
complained of violated Pa.R.A.P. 1925(b)(4)(iv) in being redundant; the
argument portion of her brief is not divided into as many parts as the number
of questions she stated, as is required by Pa.R.A.P. 2119(a); and it does not
appear that she used at least a fourteen-point font in her brief as Pa.R.A.P.
124(a)(4) mandates. However, we decline to penalize Plaintiff for her
deviations from the Rules because they have not hampered our ability to
decide her appeal on its merits.

                                           -4-
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       unfairly prejudicial to Plaintiff under 403. As such, the photos of
       the accident were helpful to the jury in understanding the facts of
       the case.

Trial Court Opinion, 12/4/17, at 5-6.

       The trial court’s assessment is completely reasonable. Since Plaintiff

does not point to a single thing that she would have done differently in

preparing her case if she had obtained the photographs seven months before

trial rather than five months before trial,3 we discern no abuse of discretion

by the trial court in admitting the photographs and refusing to impose

discovery sanctions upon Defendant. Accord Anthony Biddle Contractors,

Inc. v. Preet Allied Am. St., LP, 28 A.3d 916, 925-26 (Pa.Super. 2011)

(holding trial court abused its discretion in strictly enforcing discovery deadline

where party had substantially complied with case management order and

opposing party was not prejudiced). Therefore, the trial court properly denied

Plaintiff’s post-trial motion, and we affirm the judgment entered upon the

jury’s verdict.

       Judgment affirmed.




____________________________________________


3 The closest Plaintiff comes to claiming any prejudice is that she “would have
been precluded from rebutting or presenting any expert testimony, reports,
or response to these last minute photographs” because she obtained them
after her deadline for expert discovery. Appellant’s brief at 13. However, she
does not indicate that she sought but was denied the opportunity to produce
a late expert, let alone specify what kind of evidence any expert could have
been asked to give regarding simple photos of the two cars next to each other
in the street. Such vague speculation does not warrant a finding of prejudice.

                                           -5-
J-A12012-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:8/15/18




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