J-A26012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LIBERTY MUTUAL INSURANCE,                       IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

NICOLE SANDERS,

                        Appellee


ERIE INSURANCE EXCHANGE,

                        Appellant

                   v.

NICOLE SANDERS,

                        Appellee                     No. 1570 WDA 2015


            Appeal from the Order Entered September 11, 2015
            In the Court of Common Pleas of Allegheny County
                          Civil Division at No(s):
                               AR 13-000916
                              GD 13-002907

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 29, 2016

     Liberty Mutual Insurance and Erie Insurance Exchange (hereinafter,

“Appellants”) appeal from the September 11, 2015 order, which, inter alia,

granted Nicole Sanders’ (hereinafter “Sanders”) motion for summary

judgment. After careful review, we affirm.

     The trial court briefly summarized the facts of this case, as follows:
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              On March 5, 2011, [Sanders] was a student at the Art
       Institute of Pittsburgh. She was cooking in her dormitory room
       on an electric stove provided to her by the school. For reasons
       that are not known, a fire started while [Sanders] was cooking
       on the stove. The fire triggered an alarm and the activation of
       water sprinklers that damaged several rooms. In early 2012,
       the stove was removed and destroyed. No record exists of the
       removal and disposal. No testing or examination of the stove
       was conducted.

Trial Court Opinion (TCO), 12/10/15, at 2.

       In early 2013, Appellants filed separate complaints against Sanders,

alleging that she negligently caused the fire and, thus, she was liable for the

resulting damage.1 Sanders filed an Answer and New Matter, as well as a

motion to consolidate the two cases, which the court granted. On June 2,

2015, Sanders filed a motion for summary judgment. Within that motion,

she asserted that Appellants had committed spoliation of evidence by

disposing of the stove involved in the fire, without first permitting Sanders to

inspect or test it, and without inspecting it themselves. See Sanders’ Motion

for Summary Judgment, 6/2/15, at 4 (unnumbered).            Sanders requested

that, as sanction for Appellants’ spoliation of evidence, they should be

precluded from presenting any evidence regarding the cause of the fire. Id.

at 6 (unnumbered).


____________________________________________


1
  Liberty Mutual Insurance also included a breach of contract claim, alleging
that, pursuant to a “Student Housing License Agreement” completed by
Sanders, she was contractually liable for the damage arising from the fire
that her negligent conduct had caused. See Liberty Mutual Insurance
Complaint, 2/14/13, at 4 (unnumbered).



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     Appellants filed a response to Sanders’ motion for summary judgment,

and a hearing was conducted on August 31, 2015. That same day, the trial

court issued an order stating that Liberty Mutual Insurance would not be

permitted to present any evidence concerning the cause of the fire.        See

Trial Court Order, 8/31/15 (single page). The order also granted Sanders’

motion for summary judgment.      Id.   On September 11, 2015, the court

issued a second order clarifying that the August 31st order precluded both

Liberty Mutual and Erie Insurance from presenting evidence regarding the

cause of the fire.    The order also reiterated that Sanders’ motion for

summary judgment was granted against both Appellants, Liberty Mutual and

Erie Insurance.

     Appellants filed a timely notice of appeal, and also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Herein, they present three questions for our

review, which we have reordered for ease of disposition:

     1. Did the lower court err and/or abuse its discretion by
     misapplication of the Schmid v. Milwaukee Elec. Tool Corp.,
     three-prong spoliation test, in finding fault to such an extent and
     such prejudice as to justify a finding of spoliation and a grant of
     summary judgment?

     2. Did the lower court err and/or abuse its discretion by
     misapplication of the Schmid v. Milwaukee Elec. Tool Corp.,
     three-prong spoliation test, in finding that a grant of summary
     judgment, thereby disposing of all claims and all parties, was the
     least restrictive sanction?

     3. Did the lower court err and/or abuse its discretion in
     concluding that [Appellants have] failed to produce[] evidence of
     genuine issues of material fact and evidence of facts essential to

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J-A26012-16


      the cause of action such that [Sanders] is entitled to summary
      judgment, viewing all facts in the light most favorable to the
      non-moving party?

Appellants’ Brief at 4.

      Before addressing Appellants’ arguments, we summarize the applicable

legal principles that guide our review of their spoliation-of-evidence issues.

Our Supreme Court has explained that, “‘[s]poliation of evidence’ is the non-

preservation or significant alteration of evidence for pending or future

litigation.”   Pyeritz v. Com., 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).

      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



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          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).

       Here, the trial court discusses, in its Rule 1925(a) opinion, how it

applied the three-pronged spoliation test to the facts of this case, as follows:

              [Appellants] cannot seriously contend that [they] lack[]
       fault in the destruction of the stove. [Appellants] admitted that
       the stove was removed, not preserved and not tested. Fault for
       the lack of preservation is squarely on [Appellant] companies,
       and not on [Sanders], a young college student. It is equally
       clear that [Sanders] suffered significant prejudice. [Appellants]
       allege[] that [Sanders] acted negligently. Yet the very stove she
       used and contends may have malfunctioned was destroyed well
       before [Appellants] sued [Sanders]. [Appellants] did not appear
       to contest the first two prongs at argument.            [Appellants’]
       counsel stated that[,] “Our argument kind of begins and ends
       with the least-restrictive sanction portion of this test.”


____________________________________________


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).



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            The essence of [Appellants’] argument is that the [c]ourt
      erred in finding that preventing [Appellants] from producing
      evidence concerning the cause of the fire and granting Summary
      Judgment was too extreme a remedy. Our [c]ourts have been
      given discretion to impose a range of sanctions where spoliation
      is found.    Preventing [Appellants] from presenting evidence
      concerning the cause of the fire is appropriate where
      [Appellants] recognized the potential for claiming [Sanders] was
      at fault and failed to preserve evidence that may have permitted
      [her] to challenge [their] assertions against her. We believe this
      to be the only appropriate remedy under the facts of this case.

TCO at 3-4 (internal citations to the record and case law omitted).

      On appeal, Appellants’ first two issues challenge the court’s application

of the Schmid test to the facts of this case.     First, in regard to the fault

prong of the Schmid test, Appellants’ concede that they are at fault for the

disposal of the stove. Appellants’ Brief at 13. They acknowledge that they

“knew that litigation as to the fire was likely and it [was] arguably

foreseeable that discarding the stove could be prejudicial” to Sanders, thus

establishing that they had a duty to preserve the evidence of the stove. Id.

at 14; see also Mount Olivet, 781 A.2d at 1270-71. Appellants contend,

however, that their “degree of fault is minimal.” Appellants’ Brief at 13. In

support, they repeatedly claim that, “the stove was not immediately

discarded. Instead, the stove was cleaned and remained in the dorm room

for several months following the fire.     During that time, the stove would

have been available to Sanders or her insurance carrier.”          Id. at 14.

Appellants’ also point out that in September of 2011, they advised Sanders’

insurance carrier “that the stove was cleaned after the fire and returned to




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J-A26012-16



use[,]” suggesting that Sanders could have, and should have, inspected the

stove at that time. Id.

      Upon reviewing the documents cited by Appellants in support of their

claims, it is apparent that Appellants are misrepresenting the record.     For

instance, in support of their claim that the stove was cleaned and returned

to use for several months before being discarded, Appellants cite Erie

Insurance’s response to Sanders’ request for admissions. In that document,

Erie Insurance stated, in pertinent part:

      6. Admitted in Part. Denied in Part. It is admitted that on behalf
      of [Erie Insurance], counsel for [Erie Insurance] spoke to Ryan
      Cunningham who is an agent, servant, workman and/or
      employee of the Art Institute of Pittsburgh who during the course
      of this conversation indicated that the maintenance crew advised
      him that the subject stove was removed sometime before early
      2012.

      7. Objection to the extent that this request for admission calls
      for a legal conclusion. Without waiving this objection, this
      averment is denied in that [Erie Insurance’s] claim is related to
      [Sanders’] improper use of the stove. [Erie Insurance] had no
      knowledge at the time or to this date that there was any alleged
      defect or problem with the stove.

      8. It is admitted through [Erie Insurance’s] counsel’s
      conversation with Ryan Cunningham that Mr. Cunningham
      indicated he had no record of the disposal of the stove.

      …

      10. Objection. [Sanders] does not define what is meant by
      direct access. Once this is defined [Erie Insurance] can respond
      to this request. Without waiving this object[ion], it is denied
      that [Sanders] was ever refused access to inspect the stove
      and/or that [Sanders] ever requested permission to inspect the
      stove.




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J-A26012-16



Erie Insurance’s Response to Sanders’ Request for Admissions, 7/21/15, at

1-2   (unnumbered)    (attached   to    Docket   Entry   9   (Erie   Insurance’s

Memorandum of Law In Support of Erie Insurance’s Response to Sanders’

Motion for Summary Judgment, filed 7/21/15)). It is clear to this Court that

nothing in the above-quoted document states what Appellants purport, i.e.,

that the stove was cleaned and put back into use months before it was

discarded.

      Additionally, to support their contention that they informed Sanders in

September of 2011 that the stove was cleaned and put back into use (thus,

enabling her to inspect it), Appellants cite to documents referred to in their

reproduced record as “Plaintiff’s insured’s incident report.” See Appellants’

Brief at 14 (citing Reproduced Record at 159-60); see also Index to

Reproduced Record (“RR”), 1/22/15, at i. However, those documents state

only that the stove was new in 2007, and that after the fire, “the stove was

still working, [and] just needed to be cleaned….” RR at 159. Contrary to

Appellants’ suggestion in their brief to this Court, nothing in that document

stated that the stove was actually cleaned and ‘put back into use’ months

before it was discarded.

      In sum, Appellants’ claims on appeal are not supported by the portions

of the record to which they cite. Thus, they have not convinced us that the

trial court abused its discretion in finding that “[f]ault for the lack of




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preservation is squarely on [Appellant] companies, and not on [Sanders], a

young college student.” TCO at 3-4.3

       Next, we assess the prejudice prong of the Schmid test.             Again,

Appellants concede that Sanders was prejudiced; however, they argue that

the court erred by finding that the prejudice was significant.           Instead,

Appellants maintain that the degree of prejudice was minimal.                 See

Appellants’ Brief at 17.      In this vein, Appellants in large part reiterate the

same arguments presented in their analysis of the fault prong of the

Schmid test, i.e., that the stove was cleaned and put back into use for

months before it was destroyed and, therefore, Sanders had an opportunity

to inspect it. We need not rehash our discussion of why the record does not

support these arguments.

       Appellants also argue, however, that due to the “the speculative

nature of [Sanders’] alternative cause, any prejudice suffered by [Sanders]

is lessened.”     Appellants’ Brief at 18. In support, they cite Mount Olivet.

There, the plaintiff - a church - filed a complaint against the defendant

heating company, alleging that a heater manufactured by the defendant and

used by the plaintiff to heat water in a large baptismal pool, had

____________________________________________


3
  We acknowledge, however, that the court made no explicit finding of bad
faith on the part of Appellants; therefore, we will presume that they did not
dispose of the stove with the specific intent of hampering Sanders’ ability to
defend their lawsuit.




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malfunctioned and caused a massive fire in the church. Mount Olivet, 781

A.2d at 1266. The church kept the allegedly defective heater, but it did not

preserve the fire scene, which hampered the defendant’s “primary defense

that the fire started elsewhere in the church and not within the baptistry.”

Id. at 1268-69.     Consequently, the defendant alleged a spoliation of

evidence claim against the church. In assessing the defendant’s claim under

the three-pronged Schmid test, we concluded that the defendant had

“suffered a relatively low degree of prejudice.” Id. at 1272. We stressed

that at trial, the defendant had been able to present a “vigorous defense to

the Church’s theory of causation, and presented a renowned fire expert to

render an opinion based on the Church’s evidence.” Id. at 1272. We also

noted that the church had conducted investigations of the scene, as had the

fire marshal, and no alternative fire source had been revealed. Id.

     Two important facts make Mount Olivet distinguishable from the

present case: (1) the plaintiff in Mount Olivet kept the heater, which it

claimed caused the fire, and (2) because the defendant had access to the

heater, it was able to mount a ‘vigorous defense’ challenging that the heater

had malfunctioned. To the contrary, in this case, Appellants discarded the

stove, without which Sanders is unable to present any defense that the

stove malfunctioned and caused the fire. Moreover, while Appellants claim

that their “investigation did not reveal any alternative causes,” Appellants’

Brief at 17, they also concede that the stove was never investigated or

tested in any manner. Thus, there is no way to rule out Sanders’ claim that

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the stove malfunctioned, yet there would also be no way for Sanders to

prove that claim if the case proceeded to trial.     For these reasons, the

present case is distinguishable from Mount Olivet, and we disagree with

Appellants that Sanders only suffered ‘minimal prejudice.’       Rather, we

ascertain no abuse of discretion in the court’s determination that Sanders

suffered ‘significant’ prejudice.

        Thus, we now assess the third prong of the Schmid test - whether

there was a lesser sanction the court could have imposed that would have

avoided the unfairness to Sanders caused by Appellants’ disposal of the

stove. Appellants address this prong of the Schmid test in their third issue

on appeal.    We need not delve into the details of Appellants’ argument in

support of this issue, as it is wholly premised on their incorrect conclusion

that the sanction imposed by the court was granting Sanders’ motion for

summary judgment. Contrary to Appellants’ claim, the record demonstrates

that the sanction imposed by the court for the spoliation of evidence was

precluding Appellants from presenting evidence regarding the cause of the

fire.   See TCO at 4 (“Preventing [Appellants] from presenting evidence

concerning the cause of the fire is appropriate where [Appellants] recognized

the potential for claiming [Sanders] was at fault and failed to preserve

evidence that may have permitted [her] to challenge [Appellants’] assertions

against her. We believe this to be the only appropriate remedy under the

facts of this case.”). On appeal, Appellants offer no argument regarding why




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that sanction was an abuse of the court’s discretion. Accordingly, they have

again failed to convince us that the court abused its discretion.

      In any event, even if we accepted Appellants’ claim that the court’s

sanction was granting Sanders’ motion for summary judgment, we would not

reverse the trial court’s decision. We acknowledge that both our Supreme

Court and this Court have stated that “[w]here fault and prejudice are not

severe, dismissal is inappropriate.” Mount Olivet, 781 A.2d at 1273 (citing

Schroeder, 710 A.2d at 27-28; Pia v. Perrotti, 718 A.2d 321, 325 (Pa.

Super. 1998); Schmid, 13 F.3d at 81). “Generally, courts should select the

least onerous sanction commensurate with the spoliator’s fault and the other

party’s prejudice.” Id. (citation omitted).

      Here, Appellants “note that in cases similar to this one, a spoliation

[jury] instruction is often granted because it is considered the least onerous

penalty commensurate with the plaintiff’s degree of fault and the defendant’s

prejudice.” Appellant’s Brief at 25 (quoting Mount Olivet, 781 A.2d at 1723

(citations omitted)). Curiously, however, Appellants’ fail to mention that at

the hearing on Sanders’ motion for summary judgment, their counsel argued

that a jury instruction would not be appropriate in this case.      See N.T.

Hearing at 5. Thus, they have waived their argument on appeal that a jury

instruction would have been an appropriate sanction. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).




                                    - 12 -
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      We also point out that at the hearing, Appellants’ counsel did not

address, in any fashion, defense counsel’s argument that the appropriate

sanction would be to “restrict … [Appellants] from being able to present any

evidence on causation of the subject fire….” N.T. Hearing at 4. As stated

supra, Appellants again fail, on appeal to this Court, to explain why that

particular sanction, which ultimately was imposed by the court, was

inappropriate.   Even more problematic is the fact that, while Appellants

continuously state throughout their brief that the court should have “applied

a lesser sanction,” Appellants’ Brief at 25, they at no point specify what that

sanction should have been. Based on the record before us, and Appellants’

misleading and undeveloped argument, they have failed to convince us that

the trial court abused its discretion by imposing a sanction of precluding

Appellants from presenting evidence regarding the cause of the fire, which

then led to the court’s granting Sanders’ motion for summary judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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