J-A28031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TONEY DAVIS,                                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

VENITA SHOWELL, ADMINISTRATRIX OF
THE ESTATE OF WEBSTER H. KILSON,

                            Appellee                      No. 3806 EDA 2015


                   Appeal from the Order December 14, 2015
               in the Court of Common Pleas of Delaware County
                         Civil Division at No.: 14-10767


BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED DECEMBER 16, 2016

        Appellant, Toney Davis, appeals from the trial court’s order granting

summary judgment in favor of Appellee, Venita Showell, Administratrix of

the Estate of Webster H. Kilson.           Specifically, she challenges the court’s

order precluding her from presenting evidence at trial as a sanction for her

discovery violation, which resulted in the later grant of summary judgment

against her.     We affirm the motion for sanctions in part, vacate in part,

vacate the order granting summary judgment, and remand for the

imposition of appropriate sanctions.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      We take the following facts from the trial court’s December 14, 2015

opinion and our independent review of the record.

      Appellant initiated this lawsuit against Appellee on December 4, 2014

for injuries she allegedly suffered on July 9, 2013 on Appellee’s premises.

On February 5, 2015, Appellee sent Appellant interrogatories and a request

for production of documents.    On February 23, 2015, before receiving the

discovery responses, Appellee filed an answer to the complaint.

      On April 15, 2015, when she did not receive the discovery responses,

Appellee filed a motion to compel. On April 23, 2015, the trial court granted

the motion, and ordered Appellant to provide full and complete discovery

responses within twenty days of the order, or suffer the imposition of

sanctions upon Appellee’s further application to the court.

      On June 12, 2015, Appellee filed a motion for sanctions due to

Appellant’s continued failure to comply with the court’s April 23, 2015 order.

Appellant did not respond to the motion for sanctions, and, on July 14, 2015,

the trial court granted the motion and precluded Appellant “from presenting

at trial any witnesses, testimony or evidence relating to information

requested in [Appellee’s] [i]nterrogatories and [r]equest for [p]roduction of

[d]ocuments and the allegations appearing in [Appellant’s] [c]omplaint.”

(Order, 7/14/15).    The next day, July 15, 2015, Appellant emailed two

hundred and fifty pages of discovery responses to Appellee.




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      On July 22, 2015, Appellant filed a motion for reconsideration of the

court’s July 14, 2015 order, in which she stated that she had not responded

to the motion to compel due to her counsel’s administrative oversight. (See

[Appellant’s] Motion for Reconsideration, 7/22/15, at unnumbered page 1 ¶

5). On July 24, 2015, Appellee responded to the motion for reconsideration

asserting that the discovery responses received on July 15, 2015 were not

full and complete, and thus Appellant failed to comply with the April 23,

2015 court order.   (See [Appellee’s] Response to [Appellant’s] Motion for

Reconsideration, 7/24/15, at unnumbered page 2 ¶ 5). On November 30,

2015, the trial court denied Appellant’s motion for reconsideration because

of her failure to provide discovery in this case, and her counsel’s “course of

conduct” in violating the discovery rules and orders in “numerous other

cases.” (Order, 11/30/15).

      On July 24, 2015, Appellee filed a motion for summary judgment. On

December 14, 2015, after receiving Appellant’s response, the trial court

granted Appellee’s motion for summary judgment because, as a result of the

court having granted the sanctions order, Appellant would be “unable to

adduce sufficient evidence on all issues essential to her case on which she




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bears the burden of proof.” (Trial Court Opinion, 12/14/15, at 3). Appellant

timely appealed.1

       Appellant raises three questions for our review.

       1. Whether the trial court abused its discretion and otherwise
       committed an error of law when it improperly granted
       [Appellee’s] motion for sanctions and precluded [Appellant] from
       entering evidence at trial?

       2. Whether the trial court abused its discretion and otherwise
       committed an error of law when it improperly denied
       [Appellant’s] motion for reconsideration?

       3. Whether the trial court abused its discretion and otherwise
       committed an error of law when it improperly granted
       [Appellee’s] motion for summary judgment?

(Appellant’s Brief, at 10) (unnecessary capitalization omitted).

       Appellant’s issues challenge the court’s grant of Appellee’s motion for

sanctions, the preclusion of her evidence at trial, and the resulting grant of

Appellee’s motion for summary judgment. (See id.).

       We will first address the propriety of the trial court’s grant of the

motion for sanctions.       “Discovery sanctions are appropriate where a party

‘fails to make discovery or to obey an order of court respecting discovery.’

Pa.R.Civ.P. 4019(a)(1)(viii).       The decision to sanction a party is a matter

vested in the sound discretion of the trial court.”       First Lehigh Bank v.


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1
  The trial court did not order Appellant to file a statement of errors
complained of on appeal, but it filed an opinion on December 21, 2015. See
Pa.R.A.P. 1925.



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Haviland Grille, Inc., 704 A.2d 135, 139 (Pa. Super. 1997) (case citation

omitted).

       In the case sub judice, our review of the certified record reveals that

Appellee served Appellant with discovery requests on February 5, 2015,

approximately two months after Appellant commenced this personal injury

action.     (See [Appellee’s] Motion to Compel [Appellant’s] Answers to

Interrogatories and Responses to Request for Production of Documents,

4/15/15, at 1 ¶ 2; id. at Exhibit A). On April 15, 2015, because Appellant

failed to produce the requested discovery responses, Appellee filed a motion

to compel production. The court granted the motion on April 23, 2015, and

directed Appellant to answer Appellee’s discovery requests within twenty

days or suffer possible sanctions. (See Order, 4/23/15). On June 12, 2015,

Appellee filed a motion for sanctions for Appellant’s failure to comply with

the court’s order to produce discovery.2         (See Motion for Sanctions,

6/12/15, at 2 ¶ 7).

       Based on the foregoing chronology, we conclude that the trial court

properly found that sanctions were appropriate because Appellant failed to

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2
  Appellant argues that Appellee improperly filed the motion for sanctions
because she could have chosen an alternative course of action. (See
Appellant’s Brief, at 15-16).    However, she fails to provide any legal
authority in support of this argument. (See id.); Pa.R.A.P. 2119(a)-(b).
Therefore, it is waived. See Rettger v. UPMC Shadyside, 991 A.2d 915,
932 (Pa. Super. 2010) (finding failure to cite any legal authority in support
of analysis resulted in waiver).



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provide discovery responses and to comply with the court’s order respecting

same. See First Lehigh Bank, supra at 139; Pa.R.C.P. 4019(a)(1)(viii).

Therefore, Appellant’s first issue lacks merit.

      We next turn to Appellant’s second argument, that the trial court erred

or abused its discretion when it imposed the sanction of precluding her from

presenting evidence at trial. (See Appellant’s Brief, at 16-21).

      It is well-settled that “the purpose of the discovery rules is to prevent

surprise and unfairness and to allow a fair trial on the merits.” McGovern

v. Hosp. Serv. Ass’n. of Northeastern Penn., 785 A.2d 1012, 1015 (Pa.

Super. 2001) (citation omitted).     “As we have cautioned in the past, it is

clear that in the exercise of judicial discretion in formulating an appropriate

sanction order, the court is required to select a punishment which ‘fits the

crime.’” Estate of Ghaner v. Bindi, 779 A.2d 585, 590 (Pa. Super. 2001)

(citation and some internal quotation marks omitted).       Where a discovery

sanction results in the effective dismissal of a case, our standard of review is

stringent.   See Anthony Biddle Contractors, Inc. v. Preet Allied Am.

St., LP, 28 A.3d 916, 926 (Pa. Super. 2011). “[The Pennsylvania Supreme

Court] highly disfavor[s] dismissal of an action, whether express or

constructive, as a sanction for discovery violations absent the most extreme

of circumstances.”    City of Phil. v. Frat. Order of Police Lodge No. 5

(Breary), 985 A.2d 1259, 1270 (Pa. 2009) (citations omitted).

      As explained by our Supreme Court:


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     [P]arties are technically deprived of their procedural due process
     rights under the Fourteenth Amendment when they are not
     afforded full opportunities to present evidence before a court.
     Identical considerations must be given under Article I, Section 1
     of the Pennsylvania Constitution as well. Accordingly, . . . trial
     courts . . . must carefully weigh multiple aspects of a case before
     concluding that dismissal of an action, whether explicitly or
     constructively through the exclusion of evidence, is a proper
     remedy for a discovery violation.

                                 *    *    *

            While our jurisprudence in this area is somewhat limited,
     the Superior Court has had the opportunity to develop and apply
     four similar factors that it concludes trial and appellate courts
     alike should examine before determining the general severity
     and vitality of a discovery sanction: (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.            In
     applying these factors to appeals where a trial court dismissed
     an action for noncompliance with a discovery order, the Superior
     Court has consistently placed greater emphasis on the first two
     factors: (1) the prejudice to the non-offending party and the
     ability to cure that prejudice; and (2) the willfulness of the
     offending party’s conduct. See, e.g., Stewart v. Rossi, 452
     Pa.Super. 120, 681 A.2d 214, 217 (1996), appeal denied, 689
     A.2d 235 (Pa. 1997) (holding that because “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 when the violation of the
     discovery rules is willful and the opposing party has been
     prejudiced.”).

Id. at 1270-71 (most citations omitted; some citation formatting provided).

     Based on the foregoing legal principles and the discovery violation

before us in this case, we are constrained to conclude that the trial court

abused its discretion when it failed to “select a punishment which ‘fits the

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crime.’”     Estate of Ghaner, supra at 590; see Anthony Biddle

Contractors, Inc., supra at 926.

       First, after examining the record, we cannot conclude that Appellee

has suffered the severe level of prejudice required for the sanctions imposed

on Appellant. During the initial few months of litigation, Appellant failed to

produce responses to the first set of interrogatories and request for

production of documents when requested and ordered to do so.                This was

Appellant’s first and only discovery violation in this case and it the only basis

of Appellee’s motion for sanctions. (See Motion for Sanctions, 6/12/15, at

unnumbered pages 1 ¶ 4, 2 ¶ 7). This early in the litigation, it can hardly be

said that Appellant’s violation involves the extreme circumstances and

prejudice to Appellee required for total evidence preclusion.           See Frat.

Order of Police Lodge No. 5, supra at 1270; compare, e.g., Stewart,

supra at 218-19 (concluding defendant suffered sufficient prejudice to

justify total preclusion where he was unable to prepare defense, because for

years, plaintiff failed to respond to discovery requests, produce names of

fact   and   expert   witnesses,   provide   any   expert   reports,   or    conduct

depositions).

       Also, when the court imposed the discovery sanction, this case had

only been active for approximately seven months. One day after the court

entered its order, Appellant produced two hundred and fifty pages of

documents. Although Appellee complains that the discovery produced was


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not full and complete, it is not of record, and we cannot, on Appellee’s

allegation alone, conclude that Appellant failed to cure any potential

prejudice with her production.    Therefore, it appears that, although the

parties disagree about the quality of the discovery produced, any prejudice

experienced by Appellee as a result of Appellant’s late discovery production

either was remedied by the responses, or easily can be cured upon remand.

See Estate of Ghaner, supra at 590 (concluding imposing sanction of

evidence preclusion for party’s discovery violation of failing to produce

pretrial statement pursuant to Pa.R.C.P. 212.2 was abuse of discretion

where violation curable on remand).

      Second, based on the evidence of record in the instant case, we

cannot conclude that Appellant’s actions were willful or in bad faith. Counsel

consistently maintained that the discovery violation was not intentional, but

instead was the product of administrative oversight.      (See [Appellant’s]

Motion for Reconsideration, 7/22/15, at unnumbered page 1 ¶ 5). Indeed,

as mentioned above, Appellant had produced two hundred and fifty pages of

discovery responses one day after the court issued the sanctions order.

(See id. at unnumbered page 2 ¶ 8; id. at Exhibit D.). While this does not

excuse Appellant’s earlier inaction, failure to provide the discovery sooner

does not make it willful or in bad faith, either. See Frat. Order of Police

Lodge No. 5, supra at 1272 (finding plaintiff did not act in bad faith where




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timely noncompliance with subpoena resulted from “clerical error” and

subpoenaed documents were later produced).

       Third, the importance of the subject evidence cannot be overstated

because its preclusion resulted in the ultimate grant of Appellee’s motion for

summary judgment. (See Trial Ct. Op., at 3).

       Finally, as mentioned previously, this was Appellant’s first discovery

violation in this case.3 We are aware that the court’s order was a sanction

for the dilatory discovery practices of Appellant’s counsel’s law firm in other

cases in addition to this one; however, we must conclude that the court

abused its discretion.      Discovery sanctions are meant “to prevent surprise

and unfairness and to allow a fair trial on the merits[,]” not to punish

Appellant for the actions of her counsel’s firm in other cases.         McGovern,

supra at 1015 (citation omitted).              Hence, particularly where the court’s

severe sanctions negatively affect Appellant’s constitutional rights to due

process, see Frat. Order of Police Lodge No. 5, supra at 1270, we must

conclude that the sanctions imposed by the court do not “fit[] the crime” of a
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3
  In its opinion, the trial court considered that Appellant failed to appear for
an independent medical evaluation (IME) while a decision on the motion for
reconsideration of the sanctions order was pending. (See Trial Ct. Op., at
5). However, only the first discovery violation is before this Court. The fact
that Appellant arguably has committed a second infraction would be a proper
consideration for the trial court should Appellee file a motion seeking relief
for that offense. See Frat. Order of Police Lodge No. 5, supra at 1270
(directing court to consider “the number of discovery violations by the
offending party”).




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first discovery violation, which was not committed in bad faith, and does not

prejudice Appellee’s ability to present a defense at trial. Estate of Ghaner,

supra at 590.       Accordingly, we vacate that portion of the July 14, 2015

sanctions order precluding Appellant “from presenting at trial any witnesses,

testimony or other evidence relating to information requested in [Appellee’s]

interrogatories and request for production of documents and the allegations

appearing in [her] complaint.” (Order, 7/14/15) (unnecessary capitalization

omitted).4

       In summary, we affirm the court’s sanctions order to the extent that

the trial court found that Appellee was entitled to sanctions. However, we

vacate that portion of the order that precludes Appellant from presenting

any witnesses, testimony, or evidence related to information requested in

Appellee’s discovery requests or in the allegations of the complaint.     We

remand for the court to impose more appropriate sanctions.            Finally,

because the court’s grant of summary judgment in Appellee’s favor was

based on the circumstances as they existed after it precluded Appellant from


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4
  This decision in no way condones the law firm of Simon & Simon, P.C.’s
obstreperous pattern of noncompliance with discovery rules and orders in
this, and approximately sixty-four other, cases. (See Trial Ct. Op., at
Attachment). In fact, we sympathize with the frustration of both the trial
court and Appellee’s counsel. However, there are other, more appropriate,
vehicles available to the court for sanctioning the egregious behavior of this
law firm other than precluding Appellant from presenting any evidence in her
case.



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presenting evidence on her behalf, we vacate the order granting summary

judgment.

     Sanctions order affirmed in part and vacated in part.      Summary

judgment order reversed. Case remanded. Panel jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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