J-A20016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT MANCINI                               IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA


                    v.

CONCORDE GROUP AND HOWARD
GORDON AND VALERIE BRADLEY

APPEAL OF: VALERIE BRADLEY                        No. 2233 EDA 2013


               Appeal from the Judgment Entered July 26, 2013
              In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 10-6489


ROBERT MANCINI                               IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA


                    v.

CONCORDE GROUP AND HOWARD
GORDON AND VALERIE BRADLEY

APPEAL OF: CONCORDE GROUP AND
                                                  No. 2234 EDA 2013
HOWARD GORDON


               Appeal from the Judgment Entered July 26, 2013
              In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 10-6489


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                    FILED SEPTEMBER 25, 2014

     Appellants, Concorde Group (Concorde), Howard Gordon (Gordon),

and Valerie Bradley (Bradley), appeal from the July 26, 2013 judgment

entered against them and in favor of Appellee, Robert Mancini, in the
J-A20016-14


amount     of    $83,414.25,      constituting   $29,948.34   in       unpaid   wages,
                                                                   1
                                                                        Concorde and

Gordon also appeal from a second July 26, 2013 judgment entered against

them and in favor of Appellee in the amount of $47,250.00, constituting

$42,000.00 in lost wages and $5,250.00 in lost employee benefits.                After



March 29, 2012 motion for summary judgment and March 22, 2011 sanction

order, and remand for proceedings consistent with this memorandum.

       We summarize the relevant factual and procedural history of this case

as follows.     On May 28, 2010, Appellee initiated this action by complaint

alleging that Concorde, his former employer, failed to issue him payroll

checks on 19 separate occasions from September 2008 to March 2010.

During the contested timeframe, Gordon and Bradley were both officers and

shareholders of Concorde.            Within his complaint, Appellee raised the

following four counts against each Appellant: 1) a violation of the

Pennsylvania Wage Payment and Collection Law (WPCL),2 43 P.S. §§ 260.1-



____________________________________________


1
  On September 3, 2014, we consolidated these appeals sua sponte pursuant
to Pennsylvania Rule of Appellate Procedure 513.
2
                                                                      of
                                                    Hirsh v. EPL Techs.,
Inc., 910 A.2d 84, 86 n.4 (Pa. Super. 2006), appeal denied, 920 A.2d 833
(Pa. 2007).



                                           -2-
J-A20016-14


260.12;     2)   wrongful    discharge;        3)   a   violation   of   the   Pennsylvania

Whistleblower Law, 43 P.S. §§ 1421-1428; and 4) unjust enrichment.

        Attorney Jack W. Coopersmith entered his appearance on behalf of

C

Attorney Coopersmith also filed an answer with new matter on this date.3

Notably, these two documents are the only filings submitted of record by

Attorney Coopersmith sans a May 27, 2011 withdrawal of appearance,

discussed infra. Attorney Coopersmith died on September 1, 2013, at the

                                                                                       see

also

        Following the filing of th

abounding with discovery motions and requests for sanctions filed by

Appellee. These motions were filed because Attorney Coopersmith ignored

                                                                                   months.

An abbreviated version of this tortured history follows.

        On October 8, 2010, Appellee filed a motion to compel Concorde and

Gordon to respond to his requests for production of documents.                          On

                                                                    request and awarded



____________________________________________


3
    This document is absent from the certified record but was submitted within
                     reproduced records.




                                           -3-
J-A20016-14


                                                                            4
                                                                                  Trial

Court Order, 11/17/10. On November 29, 2010, Appellee filed a motion to

compel responses to interrogatories addressed to Concorde.             As Concorde

did not respond to the motion, the trial court granted it on March 22, 2011.

The trial court subsequently ordered Concorde to file interrogatory responses

within 20 days.



against Concorde and Gordon based upon their failure to respond to

discovery requests.         On December 17, 2010, Appellee filed a motion for

sanctions against Concorde and Gordon for failing to abide by the trial



January 24, 2011, Appellee filed a motion to deem the requests for

admissions      that   he     served    upon     Concorde   admitted   pursuant     to

Pennsylvania Rule of Civil Procedure 4014(b).5

____________________________________________


4
    Within this order, the trial court did not delineate a response deadline.
5
    Rule 4014 provides, in pertinent part, as follows.

              Rule 4014. Request for Admission



              (b) Each matter of which an admission is
              requested shall be separately set forth. The matter
              is admitted unless, within thirty days after service of
              the request, or within such shorter or longer time as
              the court may allow, the party to whom the request
(Footnote Continued Next Page)


                                           -4-
J-A20016-14




motions regardi




                                                  eration of the order within 20 days.



      On April 12, 2011, Attorney W. Russell Carmichael filed an entry of

appearance as co-counsel on behalf of Concorde and Gordon. Up until this



with his entry of appearance, Attorney Carmichael filed a motion for



Gordon.    Also on this date, A



Concorde and Gordon.           Trial Court Opinion, 1/8/14, at 15.      On April 15,

                       _______________________
(Footnote Continued)

             is directed serves upon the party requesting the
             admission an answer verified by the party or an

             attorney; but, unless the court shortens the time, a
             defendant shall not be required to serve answers or
             objections before the expiration of forty-five days
             after service of the original process upon him or her.


Pa.R.C.P. 4014(b). We note that Bradley, through her attorney, W. Russell
Carmichael, Esquire, responded to this discovery motion, requesting that
Concorde be given a short period of time to respond to the requests for
admissions.



                                            -5-
J-A20016-14


2011, Appellee objected to this motion by asserting that it was filed one day

late.6

motion for reconsideration.

         On May 27, 2011, Attorneys Coopersmith and Carmichael withdrew

their appearances on behalf of Concorde and Gordon and Attorney Nicholas

Guarente entered his appearance on behalf of these parties.7 On June 15,

2011, Attorney Guarente responded on behalf of Concorde and Gordon to



                                                 h high document dump[8 that

consisted of] approximately 1,500 pages deemed by [Attorney] Guarente to



Opinion, 1/8/14, at 10 (internal quotation marks omitted).

____________________________________________


6
  Rule 236 notice of the sanction order was given by the Delaware County
Prothonotary on March 22, 2011. Thus, the 20-day timeframe imposed by
the court for reconsideration ended on April 11, 2011. However, we note
that the Judicial Code, 42 Pa.C.S.A. §§ 101-9913, permits a trial court to
 modify or rescind any order within 30 days                  42 Pa.C.S.A.
§ 5505 (emphasis added).
7
    To date, Attorney Carmichael is still representing Bradley.
8
    Concord


systematically tabbed and contained 19 pages of item by item annotated
explanations and responsive commentary for what was in those documents.
It also contained specific, enumerated responses to the numerous
                                          Id. (internal quotation marks
omitted).



                                           -6-
J-A20016-14


        Appellee filed a motion for summary judgment against Concorde and

Gordon and for partial summary judgment against Bradley on September 16,

2011.     Concorde, Gordon, and Bradley filed answers to this motion on

October 7 and October 17, 2011, respectively. On March 29, 2012, the trial



Specifically, the trial court entered judgment in favor of Appellee and against

Concorde and Gordon as to all counts of the underlying complaint and in

favor of Appellee and against Bradley as to the first count of the complaint,

i.e., a violation of the WPCL.

        On August 13, 2012, Appellee moved to voluntarily discontinue his

action against Bradley as to the remaining counts of the complaint, to wit,

wrongful discharge, a whistleblower violation, and unjust enrichment. See



method of voluntary termination of an action, in whole or in part, by the

                                                             ourt granted this

request on October 11, 2012.

        On December 21, 2012, Concorde and Gordon filed a motion in limine

to preclude an award of damages to Appellee.          Essentially, this motion

asserted that Appellee is ineligible to recover damages because he is not

entitled to relief on the underlying causes of action. On January 29, 2013,

the trial court denied Concorde a




                                     -7-
J-A20016-14




        The trial court proceeded to schedule a damages hearing for February

13, 2013. Prior to the scheduled damages hearing, Appellee filed a petition
                                                              9
                                                                  Following the

damages hearing, the trial court entered an order that awarded both

                                                                      L claim, the

trial court entered judgment in favor of Appellee and against Concorde,

Gordon, and Bradley in the amount of $29,948.34 (constituting $23,958.67

in unpaid damages and $5,989.67 in liquidated damages). Pursuant to the

WPCL, the trial court als

and $3,645.91 in costs.         The trial court ordered Concorde, Gordon, and


____________________________________________


9
    Section 9a of the WPCL provides, in pertinent part, as follows.

              § 260.9a. Civil remedies and penalties



              (f) The court in any action brought under this section
              shall, in addition to any judgment awarded to the
              plaintiff or plaintiffs, allow costs for reasonable
              a
              defendant.



43 P.S. § 260.9a(f).




                                           -8-
J-A20016-14


wrongful discharge claim, the trial court entered judgment in favor of

Appellee and against Concorde and Gordon in the amount of $47,250.00

(constituting $42,000.00 in lost wages and $5,250.00 in lost employee

benefits). At the time of the hearing, Appellee withdrew his whistleblower

and unjust enrichment claims against Concorde and Gordon.           Trial Court

Opinion, 1/8/14, at 5.

       Concorde, Gordon, and Bradley filed timely post-trial motions on May 1

and May 2, 2013, respectively. The trial court granted reconsideration of its

damages verdict on May 16, 2013. Following reconsideration, the trial court

                                                 -trial motions by orders dated



Prothonotary entered judgment in favor of Appellee and against Concorde,

Gordon, and Bradley in the above-stated amounts on July 26, 2013. On July

31, 2013, Concorde, Gordon, and Bradley timely filed their notices of

appeal.10

____________________________________________


10
   Appellants and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925. We note that Appellants raised a number of
issues within their Rule 1925 statements that are not presented within their
appellate briefs. Specifically, Concorde and Gordon present their second,
forth, seventh, and tenth Rule 1925 statement errors within their appellate
brief. Likewise, Bradley raises only a partial portion of her third and the
entirety of her seventh Rule 1925 statement error within her appellate brief.

and not addressed within their appellate briefs are waived on appeal. See
Penn-Am. Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 269 (Pa. Super.
2011) (concluding issues that are not discussed within the argument section
(Footnote Continued Next Page)


                                           -9-
J-A20016-14


      On appeal, Concorde and Gordon raise the following issues for our

review.

             [1.]      Did the [trial] court err or abuse its discretion
                       in the entry of a sanctions order precluding the
                       defenses of [] Concorde [] and [] Gordon
                       caused by the repeated record neglect of initial
                       Concorde/Gordon counsel when the record
                       deficiencies were corrected by subsequent
                       counsel before reconsideration was denied?

             [2.]      Did the [trial] court err or abuse its discretion
                       in the granting of summary judgment on all
                       four complaint counts against Concorde [] and
                       [] Gordon?

             [3.]      Did the trial court err in its opinion that []
                       Concorde [] and []
                       on appeal for failure to seek reconsideration of
                       a denied reconsideration?

             [4.]      Did the trial court err in its opinion that []
                       Concorde [] and [] Gordon waived their claims
                       on appeal for failure to immediately appeal the
                       granting of summary judgment against
                       Concorde [] and Gordon and partial summary
                       judgment against [] Bradley?

             [5.]      Were fee-shifted counsel fees properly
                       awarded under the Wage Payment Collection
                       Law when that law was not applicable to the
                       circumstances of this case?

             [6.]      Did the trial court err in awarding a future
                       wage    loss   and   benefits   for  wrongful
                       termination where [Appellee] pleaded that this
                       theory had the whistleblower statute as its
                       statutory predicate and the claim for
                       _______________________
(Footnote Continued)

                                            appeal denied, 34 A.3d 832 (Pa. 2011);
accord Pa.R.A.P. 2119(a).



                                           - 10 -
J-A20016-14


                     whistleblower damages had been withdrawn at
                     the damages hearing?



for our review.

              [1.]   Did the [trial] court err in entering summary
                     judgment against [] Bradley, where substantial
                     factual questions existed regarding her
                     participation in the conduct of Concorde []
                     under the Wage Payment and Collection Law,
                     43 [P.S.] 260.1 et seq?

              [2.]   Were the amounts allegedly owed to [Appellee]


                       11



       Prior to reaching the merits of these consolidated appeals, we must

determine if they are properly before us.12 Within its Rule 1925(a) opinion,

____________________________________________


11
     The following caveat immediately precedes the two issues raised within

assignment of errors, but adopts all arguments as set forth in the Brief for []
                                                      4. It appears Bradley is
attempting to incorporate the entirety of her Rule 1925(b) statement, by
reference, into her appellate brief. This action is impermissible. See M.J.M.
v. M.L.G., 63 A.3d 331, 337 n.7 (Pa. Super. 2013) (concluding issues that
are
brief are waived); accord Pa.R.A.P. 2116(a).           Moreover, Bradley only
addresses the two issues listed within her statement of questions involved
within her appellate brief. See Brad                    -10. Accordingly, any
issue Bradley failed to discuss within the argument section of her appellate
brief is likewise waived. See Penn-Am. Ins. Co., supra; accord Pa.R.A.P.
2119(a).
12
                                                            issues, they assert

Concorde and G
(Footnote Continued Next Page)


                                          - 11 -
J-A20016-14


the trial court questions our jurisdiction. Trial Court Opinion, 1/8/14, at 42-

45. The trial court also submits that all issues with regard to its sanction

order are waived because Appellants failed to request reconsideration of the

order. Id. at 33-42.



                                                                       Weible

v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008), citing

Pa.R.A.P. 341(a). Since the amendment of Pennsylvania Rule of Appellate

Procedure 341 in 1992, we have consistently concluded that pretrial

discovery orders are not appealable, final orders. Buckman v. Verazin, 54

A.3d 956, 959 (Pa. Super. 2012), appeal denied, 77 A.3d 1258 (Pa. 2013).



pursuant to Rule 341.13

                       _______________________
(Footnote Continued)

the court asserts both waiver and lack of jurisdiction.   Accordingly, as the
trial
address those claims first.
13
     Notably, Rule 341 was amended to
                                                                          See
Pa.R.A.P. 341, Note.

             The following is a partial list of orders that are no
             longer appealable as final orders pursuant to
             Rule 341 but which, in an appropriate case, might
             fall under Rules 312 (Interlocutory Appeals by
             Permission) or 313 (Collateral Orders) of this
             Chapter.

(Footnote Continued Next Page)


                                           - 12 -
J-A20016-14


      By the same token

final and appealable because it entered only partial summary judgment as to

all Appellants. Although the trial court found Concorde and Gordon liable as

to all counts of the underlying complaint, it postponed its damages

calculation for a later date. The order also rendered Bradley liable as to only

one of the four counts within the complaint.        Similarly, the trial court

forewent its damages calculation as to this claim. Therefore, the summary

judgment order was not a final, appealable order because the order did not

                                                                 See Weible,

supra.

claims against Bradley did not render this matter appealable due to the

outstanding damages claim. See id.



                       _______________________
(Footnote Continued)




                       (3) a pre-trial order refusing to permit a
                       defendant to introduce evidence of an
                       affirmative defense[.]



Id.                                                                  Hull v.
Tolentino, 536 A.2d 797 (Pa. 1988) (opinion announcing judgment), is
misplaced as Hull was decided prior to the 1992 amendment to Rule 341.
See id.                          -trial order precluding the assertion of an

of fact could have determined in favor of the pleader so as to provide him




                                           - 13 -
J-A20016-14


       Instead, this matter ripened for appeal once the Delaware County

                                                                     See Pa.R.A.P.

301; Pa.R.C.P. 227.4; Prime Medica Assocs. v. Valley Forge Ins. Co.,

970 A.2d 1149, 1154 n.6 (Pa. Super. 2009), appeal denied, 989 A.2d 918

(Pa.   2010)   (providing   that   orders     denying   post-trial   motions   are

interlocutory and generally not appealable; rather, the subsequent judgment

entered is appealable). As all parties appealed to this Court within 30 days

of these July 26, 2013 judgments, our jurisdiction is proper. See Pa.R.A.P.



entry of the order from which the appeal i

       With respect to motions for reconsideration, Section 5505 of the

Judicial Code, 42 Pa.C.S.A. §§ 101-

modify its orders and states as follows.

            § 5505. Modification of orders.

                   Except as otherwise provided or prescribed by
            law, a court upon notice to the parties may modify or
            rescind any order within 30 days after its entry,
            notwithstanding the prior termination of any term of
            court, if no appeal from such order has been taken
            or allowed.

42 Pa.C.S.A.

be exercised sua sponte or invoked by the filing of a motion for

reconsideration. Haines v. Jones, 830 A.2d 579, 584 (Pa. Super. 2003).

Accordingly, we have concluded that waiver may not arise

election to forego filing such a reconsideration motion because they are not

                                     - 14 -
J-A20016-14


procedurally required.       See Harahan v. AC&S, Inc., 816 A.2d 296, 301

(Pa. Super. 2003) (concluding no waiver issue can attach when a motion for

reconsideration is filed because such a motion is not required to be filed

before appealing a grant of summary judgment), appeal denied, 828 A.2d

350 (Pa. 2003). Therefore, Concorde and Gordon did not waive their issues

regarding the sanction order by choosing not to file for reconsideration of the

order.



purport to raise four additional errors for appellate review.   Concorde and



t

assertion of defenses, and the repercussions thereof.        Id.   Within this

consolidated issue, Concorde and Gordon argue that the trial court erred in

imposing this sanction, which effectively entered a default judgment against



abandonment of their defense.14 Id. at 27-31.

____________________________________________


14
   We note that the trial court characterizes its discovery sanction against
                                                 summary judgment motions
against the parties. Trial Court Opinion, 1/8/14, at 47. Following our review
of the record, it is apparent that the trial court precluded Concorde and

Pennsylvania Rule of Civil Procedure 4019(c)(2) (stating the trial court may
                                                                     to allow
the disobedient party to support or oppose designated claims or defenses, or
prohibiting such party from introducing in evidence designated documents,
(Footnote Continued Next Page)


                                          - 15 -
J-A20016-14


                    Generally, [trial] courts are afforded great
             discretion in fashioning remedies or sanctions for
             vi
             Notwithstanding those general propositions, we
             highly disfavor dismissal of an action, whether
             express or constructive, as a sanction for discovery
             violations absent the most extreme circumstances.

See City of Phila. v. Fraternal Order of Police Lodge No. 5 (Breary),

985 A.2d 1259, 1269-1270 (Pa. 2009) (citations, footnote, and internal

quotation marks omitted; emphasis added). Moreover, our Supreme Court

                                                                     s] hesitancy to



                            Id. at 1270.         Accordingly, we have concluded that

where a discovery sanction results in the effective dismissal of a case, our

standard of review is stringent.           Anthony Biddle Contractors, Inc. v.

Preet Allied Am. St., LP, 28 A.3d 916, 926 (Pa. Super. 2011); see also

Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d

625, 629 (Pa. Super. 1997).

      Pennsylvania Rule of Civil Procedure 4019 addresses the sanctions that

a trial court may impose upon parties who fail to engage in meaningful

discovery. That rule states, in pertinent part, as follows.

             Rule 4019. Sanctions

                       _______________________
(Footnote Continued)




summary judgment against Concorde and Gordon.



                                           - 16 -
J-A20016-14


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

                (i)  a party fails to serve answers, sufficient
                answers or objections to written interrogatories
                under Rule 4005;



                (vii) a party, in response to a request for
                production or inspection made under Rule
                4009, fails to respond that inspection will be
                permitted as requested or fails to permit
                inspection as requested;

                (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



                (2) an     order  refusing   to   allow   the
                disobedient party to support or oppose
                designated claims or defenses, or prohibiting
                such party from introducing in evidence
                designated documents, things or testimony, or
                from introducing evidence of physical or
                mental condition;

                (3) an order striking out pleadings or parts
                thereof, or staying further proceedings until

                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.

                                  - 17 -
J-A20016-14




Pa.R.C.P. 4019.

        Although Rule 4019 facially permits a trial court to enter an order

precluding the assertion of defenses as a discovery sanction, a trial court

must consider the following four factors when assessing the severity of a

discovery sanction.

             (1) [T]he prejudice, if any, endured by the non-
             offending party and the ability of the opposing party

             willfulness or bad faith in failing to provide the
             requested discovery materials; (3) the importance
             of the excluded evidence in light of the failure to
             provide the discovery; and (4) the number of
             discovery violations by the offending party.

City of Phila., supra at 1270-1271 (emphases added). Greater emphasis

has consistently been placed on the first two factors, i.e., the prejudice to

the non-offending party and the bad faith of the offending party.             Id. at

1271.

        When analyzing the vitality of an imposed discovery sanction, our

Supreme Court instructed us to also consider these four City of Phila.

factors. Id.

nature and the severity

considered     on   appellate   review.      Biddle,   supra   (citations   omitted;



that each factor represents a necessary consideration[ when formulating a


                                          - 18 -
J-A20016-14


                                                     Rohm and Haas Co. v.

Lin, 992 A.2d 132, 142 (Pa. Super. 2010), cert. denied, Lin v. Rohm and

Haas Co., 132 S. Ct. 852 (2011). With these standards in mind, we turn to

the case at bar.

      Upon review of the certified record, it is apparent that the trial court

failed to address the importance of the excluded evidence when formulating

its discovery sanction, in direct contravention of City of Phila.    See Trial

Court Order, 3/22/11. Accordingly, we initially conclude the trial court erred

as a matter of law when it failed to consider all four factors delineated in

City of Phila.

      Additionally, we conclude that the trial court abused its discretion



it is evident that the trial court based its order primarily upon the prejudice

endured by Appellee.     While we agree with the trial court that Appellee

encountered prejudice during the underlying discovery proceedings, it is

unclear to us whether Concorde and Gordon or Attorney Coopersmith

dictated these actions. In fact, the trial court itself appears to believe the

belabored, eight-month discovery process occurred as a result of Attorney

                                                                       City of

Phila. and Biddle                                                           ive

discovery sanction that necessitated the instant judgments against Concorde

and Gordon.


                                    - 19 -
J-A20016-14


      When discussing the prejudice bore by Appellee, the trial court



this lawsuit.   Id. at 40.   Further, the trial court is blatantly upset that




for new employment while the economy was in [a] deep recession as if they

                                                                      Id.

            Insisting that [Concorde and Gordon] should not be
            blamed for the inaction of [Attorney Coopersmith]

            present his case at a time when he was struggling to


            reprehensible, from both a business and legal
            standpoint. Taking the position that it was of no
            moment to force [Appellee] to beg for his daily bread


            that effort lifted the level of their disrespect of
            [Appellee] from the sublime to the ridiculous.
                                          unexplained failure to
            respond to reasonable discovery requests to which
            [Concorde and Gordon] never raised an objection,


            so as to move this stalled litigation to conclusion was
            for the purpose of enriching himself.

Id.



                                                                      Id. at 41.

      Despite this chastising, the trial court submits that, to date, Concorde

and Gordon complied

                                    - 20 -
J-A20016-14


months late.   Trial Court Opinion, 1/8/14, at 37, 41.     Notwithstanding




order should be upheld because neither of the parties have explained why it

took eight months to produce discovery. Id.



made to the court regarding their delayed discovery responses. Id. at 38,

49.   Specifically, Concorde and Gordon asserted that their then-employed

counsel abandoned their defense. Id. As apparent from an arduous reading




meet a failed burden of [asserting a] timely objection to [requested]

            Id. at 38.

                                                                   edurally




reconsideration and proffer of 362 documents was within the 30-day

timeframe outlined by the Judicial Code for modification of orders.     42

Pa.C.S.A. § 5505.




                                  - 21 -
J-A20016-14




                                                                            ]



Id.



                                               record. Id. at 15. Therefore,

                                                               City of Phila.

factors are unsupported.

      Furthermore, the trial court failed to discuss the importance of the

evidence excluded by the sanction order. Instead, the trial court asserted



assertion of defenses within a case and it elects to do so in this instance.

Trial Court Opinion, 1/8/14, at 38-40.      As stated previously, due process

con

discovery violation. City of Phila., supra at 1270. Accordingly, we must

stringently review such an order. Biddle, supra at 926. As the trial court

readily concedes that Attorney

discovery violations, we question whether the complete preclusion of



      Lastly, we consider the number of discovery violations and the nature

and severity of such violations simultaneously. Instantly, it is uncontested

that Concorde and Gordon did not respond to discovery requests for


                                   - 22 -
J-A20016-14




                                                         the parties submitted

discovery materials to Appellee on April 12 and May 27, 2011.         Thus, the



discovery requests to date. Trial Court Opinion, 1/8/14, at 37, 41.

       Upon consideration of the aforementioned City of Phila. factors and

the additional Biddle factor, we believe the trial court not only committed an

error of law but also abused its discretion when it precluded Concorde and

Gordon from asserting defenses as a discovery sanction.           See City of

Phila., supra; Biddle, supra.

order is reversed.      Moreover, since the trial court improperly invoked this

discovery sanction, its March 29, 2012 summary judgment order and July

26, 2013 judgments, regarding Concorde and Gordon, must be reversed and

vacated, respectively, because they were based upon an improper sanction

order.15



discretion and committed an error of law when it granted summary

judgment in favor of Appellee and against her pursuant to the WPCL. See

                         -10.

____________________________________________


15
     Based upon our r

award. See



                                          - 23 -
J-A20016-14


      We begin by noting our well-

standard of review of an order granting summary judgment requires us to

determine whether the trial court abused its discretion or committed an

                                                      Petrina v. Allied Glove

Corp., 46 A.3d 795, 797-798

view the record in the light most favorable to the nonmoving party, and all

doubts as to the existence of a genuine issue of material fact must be

                                             Barnes v. Keller, 62 A.3d 382,

385 (Pa. Super. 2012), citing Erie Ins. Exch. v. Larrimore, 987 A.2d 732,



issue as to any material fact and it is clear that the moving party is entitled

                                                                          Id.

      The   rule   governing   summary    judgment    has   been    codified    at

Pennsylvania Rule of Civil Procedure 1035.2, which states as follows.

            Rule 1035.2. Motion

            After the relevant pleadings are closed, but within
            such time as not to unreasonably delay trial, any
            party may move for summary judgment in whole or
            in part as a matter of law

                   (1) 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, or

                   (2) if, after the completion of discovery
                   relevant to the motion, including the
                   production of expert reports, an adverse party

                                    - 24 -
J-A20016-14


                 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.

                                   -moving party bears the burden of proof

on an issue, he may not merely rely on his pleadings or answers in order to

                              Babb v. Centre Cmty. Hosp., 47 A.3d 1214,

1223 (Pa. Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa.

                                 -moving party to adduce sufficient evidence

on an issue essential to his case and on which he bears the burden of proof

establishes the entitlement of the moving party to judgment as a matter of

      Id.

            Thus, our responsibility as an appellate court is to
            determine whether the record either establishes that
            the material facts are undisputed or contains
            insufficient evidence of facts to make out a prima
            facie cause of action, such that there is no issue to
            be decided by the fact-finder. If there is evidence
            that would allow a fact-finder to render a verdict in
            favor of the non-moving party, then summary
            judgment should be denied.

Id., quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa. Super.

2011).



interpretation of the WPCL                       -10.   Specifically, the trial

court found Bradley liable to Appellee under the WPCL solely based upon




                                   - 25 -
J-A20016-14


                                                    i.e., its chief executive

officer (CEO). Trial Court Opinion, 1/8/14, at 5.

            Pennsylvania enacted the WPCL to provide a vehicle
            for employees to enforce payment of their wages
            and compensation held by their employers. The
            underlying purpose of the WPCL is to remove some
            of the obstacles employees face in litigation by
            providing them with a statutory remedy when an
            employer breaches its contractual obligation to pay

            substantive right to compensation; rather, it only

            of wages and compensation to which an employee is
            otherwise entitled by the terms of an agreement.

Hirsh, supra



§ 260.9a(a).

      Pertinent to thi

firm, partnership, association, corporation, receiver or other officer of a

court of this Commonwealth and any agent or officer of any of the above-

mentioned classes employing any person in this Commonwea                 Id.

§ 260.2a (emphasis added). Despite the ability to hold an agent or officer




Mohney v. McClure, 568 A.2d 682, 686 (Pa. Super. 1990), affirmed, 604




                         Hirsh, supra, quoting I

                                    - 26 -
J-A20016-14


Stage Employees, Local Union No. 3 v. Mid-Atl. Promotions, Inc., 856

A.2d 102, 105 (Pa. Super. 2004), appeal denied, 878 A.2d 864 (Pa. 2005);

accord Mohney, supra. Specifically, an employee must establish that the

                                                           -making, such as

corporate decision-making or corporate advisement on matters of pay or

                Hirsh, supra, citing Mid-Atl., supra at 106.

      In the case sub judice, Bradley does not contest that she is an officer



Complaint, 5/28/10, at ¶ 5.   Rather, she asserts the trial court found her

liable under the WPCL based solely upon her status as a corporate officer.

                  9-10.   Bradley argues that, in order for her to be held



                                            Id. at 9, citing Hirsh, supra

(citations omitted); accord Mohney, supra. As Bradley contests taking an

                                     -making, she posits this issue was

                                                                            -

10.

      Herein, the trial court granted summary judgment in favor of Appellee

and against Bradley o




review the pleadings in this matter to determine if they support the trial


                                   - 27 -
J-A20016-14




to cause Concorde not to pay [Appellee] the aforesaid sums to which he is




w[as] acting in accordance with the terms and conditions of [an] oral

                                                          Answer, 7/16/10, at ¶ 18.

Bradley also asserted numerous defenses. Id. at ¶¶ 36-45.

     Thereafter, Appellee filed the contested motion for summary judgment

on September 16, 2011.         Within this motion, Appellee averred Bradley

                                  nted the decisions that caused Concorde not




CEO of Concorde since 2004, and that she is consulted on management

                                           Id. at ¶ 83.        In support of these



                                                          See id. at Exhibits A, E.

Specifically, Appellee attached

produce   all   of   the   documents   reflecting   her    input,   contribution,   or




E


                                       - 28 -
J-A20016-14




                                  Id. at Exh

for Summary Judgment, 9/16/11, Exhibit E. Bradley likewise responded to



                                                                     -making process.

                                                     -35,   citing   Hirsch,        supra.



                                                                               16



       When reviewing this record in the light most favorable to Bradley, we



decision-making of Concorde. See Barnes, supra. As WPCL liability cannot

be imposed upon Bradley based solely upon her status as an officer and

shareholder of Concorde, we conclude the trial court erred in finding Bradley

liable under the WPCL during the summary judgment phase of the

underlying proceedings.         See Hirsh, supra; Mid-Atl., supra; Mohney,

supra.

judgment order and vacate the resulting July 26, 2013 judgment.17

____________________________________________


16

her first set of interrogatory responses. Id.
17



                                               See                       .



                                          - 29 -
J-A20016-14


      Based upon the foregoing, we conclude that Bradley, Concorde, and

                                                          reverse both the




entered against Bradley, Concorde, and Gordon, and remand to the trial

court so that it may condu

claims.

      Judgment vacated.      Orders reversed.   Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2014




                                    - 30 -
