J-A22003-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAUL LEGRANDE,                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

FERNANDO VEGA JR. AND CARL ANOKA
JR.,

                          Appellee                  No. 2187 MDA 2014


              Appeal from the Order Entered November 26, 2014
               In the Court of Common Pleas of Dauphin County
                     Civil Division at No(s): 2013 CV 10810


BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 13, 2016

       Paul Legrande appeals from the dismissal with prejudice of his

negligence action as a discovery sanction for his failure to appear for

deposition. After careful review, we reverse.

       On January 3, 2012, Fernando Vega, Jr.’s vehicle was involved in an

accident with a vehicle driven by Carl Anoka, Jr. in Swatara Township,

Dauphin County. Mr. Legrande was a passenger in Mr. Vega’s vehicle. Mr.

Legrande commenced this negligence action against both drivers to recover

damages for injuries he allegedly sustained in the accident.

       Mr. Vega scheduled Mr. Legrande’s deposition for July 18, 2014 at

10:00 a.m. Counsel for defendant Anoka received the notice of deposition.

*
    Retired Senior Judge assigned to the Superior Court.
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Prior to the scheduled deposition, counsel for Mr. Vega called Plaintiff’s

counsel to confirm his client’s attendance.      When Mr. Legrande’s counsel

advised that he had not received the notice, all counsel cooperated to

reschedule the deposition for August 13, 2014.       Confirmation of the new

date and time was sent via regular mail and facsimile to all counsel.

Nonetheless, Mr. Legrande and his counsel failed to appear.

      Pursuant   to   Dauphin   County   Local    Rule   4019(4)(b)(1),   which

authorizes the filing of a motion for sanctions immediately following a party’s

failure to appear for a properly noticed deposition, Defendant Vega filed a

motion for sanctions on September 2, 2014. On September 10, 2014, the

trial court issued a rule upon Plaintiff to show cause why sanctions should

not be granted, returnable within ten days. When Mr. Legrande did not file a

response to the rule, Mr. Vega moved to make the rule absolute and

requested that the case be non prossed.           The trial court, instead of

dismissing the case, issued an order on October 13, 2014, scheduling a

conference for November 26, 2014 at 11:30 a.m.              When neither Mr.

Legrande nor his counsel appeared, the trial court dismissed Mr. Legrande’s

action with prejudice.

      Mr. Legrande filed a timely appeal and complied with the court’s order

directing him to file a Pa.R.A.P. 1925(b) concise statement of issues

complained of on appeal. The trial court issued its opinion on February 11,




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2015, and the matter is ripe for our review. Mr. Legrande presents three

questions for our consideration:

       1. Whether the Trial Court erred in entering an Order dismissing
          Plaintiff-Appellant’s action with prejudice for failure to attend
          a hearing upon Defendant’s Motion for Sanctions where no
          previous sanctions were ordered, nor misconduct averred.

       2. Whether the Trial Court erred in entering an Order dismissing
          Plaintiff-Appellant’s action with prejudice as a discovery
          sanction, where no notice of hearing was provided to counsel
          for Plaintiff-Appellant?

       3. Whether the Trial Court erred in entering an Order dismissing
          Plaintiff-Appellant’s action with prejudice as a discovery
          sanction, where Plaintiff-Appellant had previously complied
          with all applicable Rules of Civil Procedure regarding
          discovery?

Appellant’s brief at 5.1

       Generally, the imposition and severity of sanctions for a party’s failure

to comply with discovery is subject to the trial court’s discretion. See Reilly

v. Ernst & Young, LLP, 929 A.2d 1193, 1199 (Pa.Super. 2007). Where,

however, the trial court enters a sanction that terminates the underlying

litigation, we apply a strict scrutiny standard of review.        Steinfurth v.

LaManna, 590 A.2d 1286 (Pa.Super. 1991); see also Rohm and Haas Co.

v. Lin, 992 A.2d 132 (Pa.Super. 2010) (holding appellate review stringent

where a default judgment is entered as a discovery sanction).
____________________________________________


1
  Since Mr. Legrande’s issues consist of arguments in support of his larger
position that the court’s dismissal of the action with prejudice for a discovery
violation was improper, we will consider them together.



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      As this Court recognized in Stewart v. Rossi, 681 A.2d 214, 217

(Pa.Super. 1996), "since dismissal is the most severe sanction, it should be

imposed only in extreme circumstances, and a trial court is required to

balance the equities carefully and dismiss only where the violation of the

discovery rules is willful and the opposing party has been prejudiced." Our

Supreme Court recently reaffirmed in City of Philadelphia v. FOP Lodge

No. 5 (Breary), 985 A.2d 1259, 1270 (Pa. 2009), that it “highly

disfavor[ed] dismissal of an action . . . as a sanction for discovery violations

absent the most extreme of circumstances.” It also adopted, for “trial and

appellate courts alike,” the factors this Court has developed and applied “in

determining the general severity and vitality of a discovery sanction.”     Id.

Those factors include:

      (1) the prejudice, if any, endured by the non-offending party and
      the ability of the opposing party to cure any prejudice;

      (2) the noncomplying party's 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.

Id.   As our High Court noted in City of Philadelphia, supra, when the

discovery sanction either terminates the action directly or would result in its

termination by operation of law, the first two factors assume greater

significance.



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         Implicated herein is Pa.R.C.P. 4019, which governs sanctions, and

Dauphin County Local Civil Rules 208.2(e) and 4019 (Discovery). Pa.R.C.P.

4019(a)(1)(iv) provides that the court may enter an appropriate order

when:

         a party or an officer, or managing agent of a party or a
         person designated under Rule 4007.1(e) to be examined, after
         notice under Rule 4007.1, fails to appear before the person who
         is to take the deposition;

Pa.R.C.P. 4019(a)(1)(iv).      Under Dauphin County Local Rules, when a

deponent fails to appear for a duly noticed deposition, a motion for sanctions

may be filed immediately. Dauphin County Local Rule 4019(4)(b)(1). The

judge to whom the motion is assigned has the option of scheduling a

discovery conference or requiring briefs or oral argument. Id. at (3)(b)(i)-

(iii).   After the discovery conference, the judge shall enter an appropriate

order disposing of the issues raised in the motion for sanctions. Id. at

(3)(c).    Any other party may file an answer or raise any other discovery

dispute not previously raised. Id. at (2)(d).

         Mr. Legrande contends that the dismissal of his action was not a

“punishment which fits the crime” and that the trial court abused its

discretion in imposing the most severe sanction for one discovery violation

when other less severe sanctions were available. Appellant’s brief at 14. He

suggests that monetary sanctions or even a judgment of non pros would

have been more appropriate. Furthermore, Mr. Legrande contends that the



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imposition of sanctions inuring to the benefit of defendant Anoka was

unwarranted since that defendant did not move for sanctions and the claims

against him were distinct.

       Mr. Vega contends that the “pattern of discovery misconduct starts

from the inception of this case.”          Appellee Vega’s brief at 4.      In support

thereof, he reiterates the allegations in his motion for sanctions upon which

the trial court focused in dismissing the case.2 Specifically, Mr. Vega points

out that Mr. Anoka’s preliminary objections were sustained due to Mr.

Legrande’s failure to file a response and that Mr. Legrande failed to respond

to co-defendant Anoka’s new matter.              In addition, he criticizes Plaintiff’s

counsel for failing to propound any written discovery or to correspond with

defense counsel during the pendency of the suit. As further evidence of Mr.

Legrande’s misconduct in discovery, Mr. Vega claims that Mr. Legrande filed

his responses to interrogatories late and only after notice of intent to seek

sanctions. Finally, Mr. Legrande failed to appear twice for his deposition.

       We find little support for Mr. Vega’s “pattern of abuse” theory. First,

Mr.    Legrande’s      pleading     deficiencies    are   unrelated    to   discovery.

Additionally, Plaintiff’s failure to avail himself of discovery tools does not

constitute misconduct or abuse of discovery. Moreover, Plaintiff’s counsel’s
____________________________________________


2
 The court also noted that all pleadings and orders were mailed to Plaintiff’s
counsel at his business address and that counsel was notified of the hearing
on the motion.



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lack of communication with defense counsel may be shortsighted but it is

not a basis for a discovery sanction.        The record reveals that, as to

discovery, Defendant Vega filed notice of intent to seek sanctions when Mr.

Legrande’s answers to interrogatories were four days overdue. Within one

week, Mr. Legrande provided responses. This does not constitute abuse of

the discovery process for which sanctions would be appropriate.

      Furthermore, the record does not support Mr. Vega’s contention that

Mr. Legrande failed to attend two properly-noticed depositions.        Plaintiff’s

counsel advised defense counsel prior to the July 18, 2014 deposition that

he had not received notice of the deposition and would not appear.           See

Deposition,   Legrande,   8/13/14,    at   unnumbered     4.    Together    they

rescheduled Mr. Legrande’s deposition for August 13, 2014. Since nothing in

the record suggests that the July deposition went forward, we find no

support for Mr. Vega’s representation that Mr. Legrande failed to appear at

that deposition.

      It is undisputed, however, that neither Mr. Legrande nor his counsel

appeared at the August 13, 2014 deposition and no excuse was offered for

their non-attendance. Mr. Vega contends that this discovery violation was

willful and without justifiable excuse as Plaintiff’s counsel participated in the

scheduling of the August 13, 2014 deposition.       Furthermore, he maintains

that this violation of the discovery rules was severely prejudicial as Mr.

Legrande’s deposition was imperative to his defense of the lawsuit.           He

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represents that Mr. Legrande was the person in the best position to observe

Mr. Anoka’s oncoming vehicle, but that Mr. Legrande’s memory of the

accident is now impaired due to a second accident while he was a passenger

in Mr. Vega’s vehicle. Finally, Mr. Vega maintains that Mr. Legrande, as the

Appellant, failed to order a transcript of the sanctions hearing, and thus, the

record is incomplete. He contends that this appeal should be dismissed on

that basis.3 Pa.R.A.P. 1911(d).

       Even assuming Plaintiff’s failure to appear at the August 13, 2014

deposition was willful and unjustified, absent herein are the extreme

circumstances and prejudice required in order to dismiss an action for a

discovery    violation.      Mr.   Vega’s      claims   of   Mr.   Legrande’s   impaired

recollection are unsupported by the certified record. Furthermore, in order

to show prejudice, Mr. Vega would have to establish that if the deposition

had proceeded as scheduled on August 13, 2014, Mr. Legrande’s ability to

recall would have been intact and beneficial. On the record before us, these

claims of prejudice are without support. We note further that this lawsuit

was still in the early stages and there were opportunities to reschedule Mr.

Legrande’s deposition and cure any prejudice.                Finally, even viewing the
____________________________________________


3
   In Plaintiff’s notice of appeal, Counsel represented that there was no
transcript of any court proceeding in this matter pursuant to Pa.R.A.P. 1911.
See Request for Transcript, 12/24/14, at 1. It is unclear from the certified
record whether the November 26, 2014 proceeding, which was referred to
both as a conference and a hearing, was transcribed.



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averments in the motion for sanctions as true, we find no evidence that

Plaintiff’s failure to attend the scheduled deposition was motivated by bad

faith.4   Since we find that dismissal was too severe a sanction for Mr.

Legrande’s failure to attend his deposition on August 13, 2014, we reverse

and remand for further proceedings.

       Nonetheless, some sanction is appropriate. Thus, we will address Mr.

Legrande’s contention that since Mr. Anoka did not file a motion seeking

sanctions, he was not entitled to sanctions.5 Mr. Anoka calls this contention

“absurd” and insists that he was involved in the litigation and the first party

to file preliminary objections. He maintains that he did not initiate discovery

in the interest of avoiding duplication. However, he cooperated to schedule

Mr. Legrande’s August 13, 2014 deposition, prepared to attend and

participate, and appeared. Counsel for Mr. Anoka avers that he and counsel

for Mr. Vega agreed that the latter would file a motion for sanctions to avoid

duplicative effort.    He represents that at the conference on November 26,

2014, he advised the court that he sought the same relief as that requested
____________________________________________


4
  Counsel for Plaintiff attached an affidavit to the brief filed with this Court
purporting to explain Mr. Legrande’s failure to respond to the rule to show
cause and appear at the November conference. This Court is not permitted
to consider matters that are not included within the certified record.
5
  Had Mr. Legrande identified this as error in his Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, the trial court likely would
have addressed specifically whether Mr. Anoka was entitled to sanctions in
its Rule 1925(a) opinion.



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in Mr. Vega’s motion for sanctions.     Again, these representations are not

supported by the certified record.

      We find merit in Mr. Legrande’s contention that, pursuant to Pa.R.C.P.

4019, discovery sanctions are limited to those parties who sought such

sanctions.   See Lawrence v. General Medicine Ass'n., Ltd., 602 A.2d

1360 (Pa.Super. 1992); Smith v. Philadelphia Gas Works, 740 A.2d 1200

(Pa.Cmwlth. 1999) (holding effect of trial court’s dismissal of case against all

seven defendants was the sua sponte imposition of a discovery sanction in

favor of parties who did not file such motions or formally adopt or join in a

co-defendant’s   motion)    (quoting    DeMarco     v.   Borough      of   East

McKeesport, 556 A.2d 977, 979 (Pa.Cmwlth. 1989) ("nothing in Pa. R.C.P.

No. 4019 intimates that a court may impose sanctions in favor of non-

moving parties”)). The certified record and the trial court opinion are silent

as to whether Mr. Anoka formally joined in or adopted Mr. Vega’s motion for

sanctions.   Since we are remanding for further proceedings, including the

imposition of an appropriate discovery sanction, the trial court may impose

sanctions in favor of Mr. Anoka if indeed he did seek sanctions.

      In sum, Mr. Legrande failed to appear for his August 13, 2014

deposition. He did not violate a court order in doing so. Nonetheless, Mr.

Vega, and perhaps Mr. Anoka, is entitled to reasonable sanctions.             A

reasonable sanction for such a violation would usually consist of attorney’s

fees and costs incurred in attending the deposition, as well as the costs and

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fees of prosecuting the motion for sanctions. We find no circumstances or

prejudice to justify the harsh sanction of dismissal. Hence, we reverse and

remand for the imposition of reasonable sanctions and further proceedings

consistent with this Memorandum.

     Order reversed and remanded. Jurisdiction relinquished.

     Judge Platt joins this memorandum.

     Judge Jenkins concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2016




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