J-A27019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SHARON COLEMAN                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    HANY MAHMOUD                               :   No. 917 EDA 2019

               Appeal from the Order Entered February 26, 2019
      In the Court of Common Pleas of Montgomery County Civil Division at
                             No(s): 2016-22259


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                            FILED FEBRUARY 18, 2020

        Sharon Coleman (“Appellant”) challenges the trial court orders entered

on September 18, 2018 (order granting Hany Mahmoud’s (“Appellee”) motion

for sanctions and preclusion), September 20, 2018 (amended order granting

Appellee’s motion for sanctions), and February 7, 2019 (order granting

Appellee’s motion for nonsuit and entering judgment for Appellee).       These

orders became appealable on February 26, 2019, when the trial court entered

an order denying Appellant’s post-trial motion to strike the judgment of non-

suit. See Murphy v. International Druidic Society, 152 A.3d 286, 289

(Pa. Super. 2016) (the entry of compulsory nonsuit is not immediately

appealable; “rather the appeal lies from the trial court’s denial of the motion

to remove the non-suit.”). After careful review, we affirm.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       The trial court recounted the procedural history, as follows:

              In this case, on September 8, 2016[, Appellant] filed a
       complaint alleging [Appellee] was negligent while driving and
       caused a car accident that seriously injured [Appellant]. See
       Docket Entry 0. [Appellee] filed an Answer and New Matter on
       December 9, 2016, and [Appellant] filed her Reply to New Matter
       on December 13, 2016. See Docket Entry 6; 8. A Motion to
       Compel was filed on January 31, 2018[,] which was subsequently
       granted although [Appellant] had complied with the request prior
       to the [c]ourt Order thus rendering the issue moot. See Docket
       Entry 10; 14. A Case Management Conference was scheduled,
       and the [c]ourt entered an Order directing discovery to be
       complete by July 13, 2018, and warned counsel that “[f]urther
       discovery shall not be permitted without leave of [c]ourt and
       except upon showing of extraordinary circumstances. The failure
       to strictly comply with the provisions of this Order may result in
       the imposition of sanctions including, but not limited to[,] an
       Order of Preclusion or Non-Pros.” See Order J. Rogers 5/18/18.
       On July 27, 2018, [Appellee] filed a Motion for Sanctions. See
       Docket Entry 20. Thereafter, the [c]ourt held a hearing on the
       motion, and then ordered the parties to submit briefs on the
       matter. On September 18, 2018, Senior Judge Bertin granted the
       Motion for Sanctions and precluded [Appellant] from testifying or
       presenting any evidence as a sanction for her discovery violations.
       See Order SJ Bertin 9/18/[18], amended 9/20/18. On October 2,
       2018, [Appellant] filed a Motion for Reconsideration and an
       Application for Amendment of the interlocutory order certifying
       the orders for appeal to the Superior Court.[1] In response, the
       [c]ourt vacated its Order pending reconsideration. See Order SJ
       Bertin 10/5/18. Then, on October 26, 2018, the [c]ourt denied
       reconsideration, and reinstated the sanction Order. See Order SJ
       Bertin 10/26/18. This case was scheduled for a bench trial, and
       as a result of the preclusion order, [Appellant] failed to present
       evidence which could prove [her] case, and this [c]ourt granted
       [Appellee’s] oral Motion for Non-Suit. See Order J. Page 2/7/19.
       Subsequently, Post-Trial Motions seeking to Strike the Non-Suit
       were filed, and denied. See Docket Entry 56; 58.


____________________________________________


1 The trial court did not rule on the motion requesting interlocutory review in
this Court.

                                           -2-
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          On March 4, 2019, [Appellant] filed a timely Notice of
     Appeal.

Trial Court Opinion, 4/17/19, at 1–2.

     Appellant raises the following issues for appellate review:

     1. Whether the trial court abused its discretion and otherwise
      committed an error of law when it granted [Appellee’s] Motion for
      Sanctions and precluded [Appellant] from testifying at trial or
      arbitration?

     2. Whether the trial court abused its discretion and otherwise
      committed an error of law when it granted [Appellee’s] Motion for
      Sanctions and precluded [Appellant] from offering any evidence,
      written or testimonial, from any and all lay and expert witnesses?

     3. Whether the trial court abused its discretion and otherwise
      committed an error of law when it granted [Appellee’s] Motion for
      Sanctions when [Appellant] had produced Answers to
      Interrogatories and Request for Production of Documents 23 days
      after [Appellant] had been served?

     4. Whether the trial court abused its discretion and otherwise
      committed an error of law when it granted [Appellee’s] Motion for
      Sanctions    when    [Appellant]    reproduced    Answers      to
      Interrogatories and Request for Production of Documents in
      response to a pending Motion to Compel?

     5. Whether the trial court abused its discretion and otherwise
      committed an error of law when it granted [Appellee’s] Motion for
      Sanctions when [Appellant] made multiple good faith efforts to
      schedule her deposition?

     6. Whether the trial court abused its discretion and otherwise
      committed an error of law when it granted [Appellee’s] Motion for
      Sanctions when [Appellant] made multiple good faith efforts to
      schedule an independent medical examination with [Appellee’s]
      doctor?

     7. Whether the trial court abused its discretion and otherwise
      committed an error of law when it granted in [Appellee’s] Motion
      for Sanctions, which was a harsh and draconian sanction as per
      Rohm & Haas Co. v. Lin, 992 A.2d 132, 147 (Pa. Super. Ct. 2010)

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J-A27019-19


      and Croydon Plastics Co. v. Lower Bucks Cooling and Heating,
      698 A.2d 625, 629 (Pa. Super. 1997)?

      8. Whether the trial court abused its discretion and otherwise
       committed an error of law when it granted [Appellee’s] Motion for
       Sanctions, when there were lesser sanctions, besides preclusion,
       that the court could have levied against [Appellant] in this case
       if the trial [c]ourt found [Appellant] in violation of her discovery
       obligations, which [Appellant] denies?

      9. Whether the trial court abused its discretion and otherwise
       committed an error of law when it granted [Appellee’s] Motion for
       Sanctions, which was filed without merit, as [Appellant] had
       participated in the discovery process?

      10. Whether the trial court abused its discretion and otherwise
       committed an error of law when it denied [Appellant’s] Motion for
       Reconsideration of the September 18, 2018 and September 20,
       2018 orders and memoranda?

      11. Whether the trial court abused its discretion and otherwise
       committed an error of law when it reinstated the September 18,
       2018 and September 20, 2018 orders and memoranda?

      12. Whether the trial court abused its discretion and otherwise
       committed an error of law when it improperly granted
       [Appellee’s] Motion for Non-Suit and entering judgment in favor
       of [Appellee] at trial?

      13. Whether the trial court abused its discretion and otherwise
       committed an error of law when it improperly denied [Appellant’s]
       Post-Trial Motion to Strike the Judgment of Non-Suit?

Appellant’s Brief at 35–38.

      Appellant’s first eleven issues generally assail The Honorable Emanuel

Bertin’s September 18, 2018 order granting Appellee’s motion for sanctions

and precluding Appellant from testifying at trial and from introducing any




                                      -4-
J-A27019-19


written or testimonial evidence from any witnesses.2 Appellant urges that the

imposition of the preclusive sanction was overly harsh because she

____________________________________________


2 Judge Bertin offered the following rationale in support of the preclusion
sanction:
             [Appellee] has been prejudiced by [Appellant’s] refusal to
      comply with the [Case Management Order (“CMO”)] deadlines.
      Damages and causation are disputed issues in this matter.
      [Appellant] is subject to limited tort threshold. She admitted in
      discovery answers that her claims are for an aggravation of pre-
      existing conditions from a prior accident(s) and has filed suit
      against SEPTA for these same injuries. [Appellee] was deprived
      of the opportunity to depose [Appellant] to investigate her full
      history, the identity of all prior caregivers, prior accidents,
      subsequent accidents and other essential facts relevant to
      damages and/or causation. [Appellee] cannot build a proper
      defense due to [Appellant’s] failure to comply with the CMO. Any
      argument that [Appellant] answered interrogatories and gave
      over medical records which contained names of other physicians
      and this should be sufficient ignores the fact that a party has an
      inherent right, barring a protective order, to depose the opposing
      party. Often times facts, regarding post-accident hobbies and
      activities are not disclosed in discovery answers or to caregivers.
      Moreover the identification of caregivers that were not
      forthcoming in answers to written discovery are only learned of
      through a plaintiff’s deposition.        Without this information
      [Appellee] has been prejudiced from developing defenses to the
      issues of damages and causation. Even if [Appellee] were to be
      allowed to take [Appellant’s] deposition he would still require
      several months of additional time in order to effectuate and
      receive subpoena responses for pre-accident caregivers identified
      at the deposition.

              Lastly, [Appellee] makes a compelling concluding argument
       in his brief that, in this court’s view, demands, in the interests of
       justice, entry of a preclusion order:

             [Appellant] was given ample warning of the penalties she
       might face if she failed to comply with the CMO. She was also told
       that her only remedy to avoid said penalties would be to file a



                                           -5-
J-A27019-19


substantially complied with Appellant’s discovery requests, she acted in good

faith, and any prejudice suffered by Appellee was easily curable.

       The trial court “may, on motion, make an appropriate order” for

sanctions for discovery violations.” Pa.R.C.P. 4019. We will not reverse a trial

court’s order imposing a discovery sanction unless the trial court abused its

discretion. Farrell v. Farrell, 218 A.3d 485, 490 (Pa. Super. 2019) (citing

Rohm & Haas Co. v. Lin, 992 A.2d 132, 141–142 (Pa. Super. 2010)). While




____________________________________________


       motion for extraordinary relief and provide a suitable explanation
       to this [c]ourt as to why she could not comply with the deadlines
       and required an additional extension. If [Appellant] had taken
       that route and the [c]ourt denied her motion then [Appellee]
       would be entitled to sanctions including preclusion. It was her
       duty, if she wished to preserve her testimony and evidence, to
       either appear for her deposition and defense medical examination
       or to file a motion. She did neither.

Memorandum and Order, 9/18/18, at 3–4 (quotation marks omitted).

      Judge Bertin amended the September 18, 2018 order to correct a
typographical error and to reference Appellant’s counsel’s response to his
inquiry concerning Appellant’s failure to file a response to Appellee’s motion
for sanctions:
       [A]t the oral argument . . . the court inquired of [Appellant’s]
       counsel as to why she did not bother to file a responsive
       pleading/answer to the detailed motion for sanctions, which was
       a serious motion, in that it requested a preclusion order.
       [Appellant’s] response . . . was not satisfactory to this court and
       demonstrated, again, the lack of seriousness [Appellant] is taking
       toward her own case and her disregard of requirements of
       important, timely court filings and deadlines.
Amended Memorandum and Order, 9/20/18, at 1.

                                           -6-
J-A27019-19


the severity of the sanctions imposed is also within the trial court’s discretion,

such discretion is not unfettered:

      [B]ecause 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. Consequently, where a discovery sanction
      either terminates the action directly or would result in its
      termination by operation of law, the court must consider multiple
      factors balanced against the necessity of the sanction.

Id. at 142 (internal quotation and citations omitted).

      In City of Philadelphia v. Fraternal Order of Police Lodge No. 5

(Breary), 985 A.2d 1259 (Pa. 2009), the Pennsylvania Supreme Court

adopted this Court’s jurisprudence enumerating four factors for trial and

appellate courts to consider before concluding dismissal constitutes a proper

sanction for a discovery violation:

      (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. at 1270 (citing Pioneer Commercial Funding Corp. v. Amer. Financial

Mortg. Corp., 797 A.2d 269 (Pa. Super. 2002), rev'd on other grounds, 855

A.2d 818 (Pa. 2004)).     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. City of Philadelphia, 985 A.2d at

1271. After the City of Philadelphia decision, this Court again identified the



                                      -7-
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guiding principles for review of a trial court’s decision to effectively dismiss an

action for discovery violation, as follows:    “the nature and severity of the

discovery violation, the defaulting party’s willfulness or bad faith, prejudice to

the opposing party, the ability to cure the prejudice; and the importance of

the precluded evidence in light of the failure to comply.” Rohm & Haas, 992

A.2d at 142 (quoting Croydon Plastics Company, Inc. v. Lower Bucks

Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997)). The trial court

herein carefully analyzed the Rohm Haas/Croydon factors in justifying the

preclusion determination:

             In this case, [Appellant] had a prior car accident which
      caused injuries to the same area as alleged in this case, and had
      resulted in a prior lawsuit.        See [Appellee’s] Response in
      Opposition to Motion for Reconsideration. [Appellant] canceled
      her deposition on short notice two times, and then rescheduled
      her deposition for just three days before the discovery deadline.
      [Appellant] confirmed her deposition the day before, and then
      canceled the same deposition three hours later claiming that all
      counsel were not available. See id. The first deposition was
      canceled after [Appellant] agreed to the date because the parties
      wished to depose both sides at the same time, and [Appellee] was
      not available. Then the second deposition was scheduled, and the
      location was changed to [Appellant’s] counsel’s office to be more
      convenient, before being canceled because [Appellant’s] firm,
      Simon & Simon, apparently did not have a single attorney
      available to depose the parties. Despite having canceled her third
      deposition days before the time for discovery expired, [Appellant]
      failed to seek the only relief available, a Motion for Extraordinary
      Relief. If [Appellant] truly believed [she] had made every effort
      to meet the deadline, and [was] unable to do so, [she] could have
      filed a Motion for Extraordinary Relief seeking to extend the time
      for discovery which would have prevented the imposition of
      sanctions for failing to comply with the Case Management Order.
      [Appellant] failed to do so.1 [Appellant] did not do so even after
      sanctions were entered in an attempt to have the sanctions
      reconsidered. [Appellant] sought instead to have [Appellee]

                                       -8-
J-A27019-19


     precluded from pursuing a defense due to her refusal to
     participate in discovery, and refusal to seek appropriate relief.
           1 “Any extension beyond the maximum time limit for
           the placement of the case into the Civil Trial
           Inventory, as noted in subsection (d) above, must be
           approved by a Judge. Said request shall be in the
           form of a Motion for Extraordinary Relief, which shall
           set forth the reason(s) why the requested relief should
           be granted. The opposing side(s) shall have five (5)
           days in which to respond to said Motion, after which
           time the Court will enter an appropriate order.” PA R
           MONTGOMERY CTY RCP Rule 200 (3) (e).
           Montgomery County adopted Rule 200 to ensure
           timely discovery and trial. Counsel were aware of the
           rule, and reminded at the Case Management
           Conference that the rule would be strictly enforced.

           [Appellant] also failed to respond to [Appellee’s] request for
     an IME since at least May of 2018 to allow [Appellee] to prepare
     an expert report in the case. [Appellant] did not advise that [she]
     refused to participate in the examination, but merely failed to
     respond. See id.

            Here, when considering the factors espoused in Croydon
     Plastics Co., it is clear that the [c]ourt was well within its discretion
     to issue the preclusion order. When considering the nature and
     severity of the discovery violations, they are extreme. The ability
     to depose [Appellant] and have a Defense expert examine
     [Appellant] form a large part of the Defense of an auto negligence
     claim. Without those pieces of discovery, [Appellee] is unable to
     pursue other avenues of discovery to prepare a defense, is unable
     to engage in settlement negotiations, and is unable to form a
     theory of their case. [Appellee] is forced to guess about the
     nature and cause of [Appellant’s] injuries, the alleged extent of
     damages, [Appellant’s] version of events, and a myriad of other
     facts. The fact that [Appellant] complied with some discovery
     requests does not excuse [her] other, more significant failures.
     Further, in this case, [Appellant’s] willfulness or bad faith was
     significant.    While not intentional, [Appellant] engaged in a
     significantly negligent approach to discovery. Requests for an
     [Independent Medical Exam (“IME”) were completely ignored by
     [Appellant], and the requests for a deposition were cancelled late,
     and with little regard for the impending deadlines. Further, when
     [Appellant’s] neglect caused prejudice to [Appellee], [Appellant]

                                      -9-
J-A27019-19


     failed to seek relief in the form of a Motion for Extraordinary Relief
     to extend discovery.

            Third, as discussed already, and alleged in the Motion for
     Sanctions and Memoranda of Senior Judge Bertin, [Appellee] was
     severely prejudiced. [Appellee] was left without the ability to
     contest damages without the IME. [Appellee] also was unable to
     explore whether there were more underlying accidents prior to or
     subsequent to this accident. [Appellee] was unable to learn the
     allegations of [Appellant] regarding the events of the accident and
     the specific ways in which she had been damaged. Fourth,
     [Appellee] could not cure the prejudice without compliance by
     [Appellant]. Further, [Appellant] did not seek to remove the
     prejudice by filing a Motion for Extraordinary Relief. Finally, the
     importance of the evidence that was excluded in light of the failure
     to comply, as already discussed, was enormous. [Appellant] failed
     to engage in meaningful discovery, running out the clock on
     discovery, and now claims that [she] should be permitted to
     benefit from [her] failure to engage in good faith discovery or cure
     [her] default by seeking an extension of the discovery deadline
     [she] failed to meet. The [c]ourt cannot permit a [p]laintiff to
     disobey the deadlines set by the [c]ourt, and avoid the clear
     consequences that are laid out for a failure to comply. For all the
     factors considered, particularly the prejudice, and the willful
     failure to correct the deficiencies, the [c]ourt did not abuse its
     discretion in precluding [Appellant] from presenting evidence or
     testifying in her case. Finally, this [c]ourt’s denial of the Motion
     for Reconsideration and reinstatement of the sanctions was proper
     for the same reasons this [c]ourt’s original order granting
     sanctions was proper.

Trial Court Opinion, 4/17/19, at 5–8.

     Rather than challenge the trial court’s Rohm Haas/Croydon analysis,

Appellant crafts her appellate argument that the order precluding her from

testifying and presenting evidence at trial was an improper sanction by

reference to the Pennsylvania Supreme Court’s decision in City of

Philadelphia. Although the phraseology describing the factors to evaluate

the propriety of a severe discovery sanction differs somewhat in these cases,


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J-A27019-19


we do not find any significant distinction in the two Courts’ teachings on the

balancing of the equities required when a discovery sanction effectively

terminates the litigation. Thus, we conduct our review of the propriety of the

discovery sanction under the precepts established in Rohm Haas/Croydon.

      Rohm Haas/Croydon first requires courts to evaluate the nature and

severity of the discovery violations. The trial court weighed this factor against

Appellant, finding that her failure to be deposed and submit to an IME

thwarted Appellee’s ability to prepare a defense, formulate a theory of the

case, or engage in settlement negotiations. The trial court also determined

that without Appellant’s deposition and an IME, Appellee could not ascertain

the nature and cause of Appellant’s injuries or the extent of damages allegedly

suffered.

      Appellant responds to the trial court’s description of her discovery

violations in the section of her brief contending that the sanction imposed was

unduly harsh.     Appellant’s position in this regard can be summarized as

follows:    1) the trial court’s order granting the motion for sanctions was

equivalent to a dismissal of Appellant’s claims; 2) Appellant committed only

one discovery violation; 3) evaluation of the Rohm Haas/Croydon factors

suggests that the trial court ruled incorrectly; and, 4) the “punishment did not

fit the crime.” Appellant’s Brief at 55–60.

      Appellant’s contention that the preclusion order effectively terminated

the case is not disputed and requires no further discussion. Appellant’s next


                                     - 11 -
J-A27019-19


claim that she committed one discovery violation is not supported. Notably,

Appellant does not identify the admitted discovery violation. Nevertheless,

the   record   demonstrates     that    Appellant’s   responses   to   Appellee’s

interrogatories and request for documents did not identify fully her medical

care providers or details about prior injuries she sustained in another

automobile accident or the ensuing lawsuit stemming from that earlier

accident. Additionally, Appellant twice cancelled her deposition on very short

notice, citing counsel’s staffing issues. Appellant further violated the discovery

process when she did not heed the CMO’s directive that discovery could be

extended only by leave of court and in extraordinary circumstances.

      Appellant also submits that consideration of the Rohm Hass/Croydon

factors suggests that the trial court erred in precluding Appellant from

testifying or presenting evidence as a sanction for what she describes as her

de minimis discovery violation.          Despite the trial court’s thoughtful

consideration of those factors in its Pa.R.A.P. 1925(a) opinion, Appellant does

not contest the trial court’s analysis in any manner. Without a substantive

challenge to the trial court’s reasoning, this issue is waived. See Lechowicz

v. Moser, 164 A.3d 1271, 1276 (Pa. Super. 2017) (Superior Court will not

consider argument that is not properly developed).

      Appellant reiterates her claim that the discovery sanction was draconian

by citation to Estate of Ghaner v. Bibi, 779 A.2d 585 (Pa. Super. 2001),

wherein this Court observed that in “formulating an appropriate sanction


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order, the court is required to select a punishment which ‘fits the crime.’” Id.

at 590 (quoting Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. 1998)). In

Ghaner, the trial court dismissed a plaintiff’s wrongful death lawsuit after she

failed to file a pretrial statement in accordance with Pa.R.C.P. 212.2(c). We

ruled that dismissal was a harsh and inappropriate sanction because a lone

violation of the Pennsylvania Rules of Civil Procedure without something

further could not be deemed “willful,” “contemptuous,” or “dilatory.” Id. at

589.

       This case is distinguishable from Ghaner. As detailed above, Appellant

did not violate one rule of procedure. Rather, she engaged in a pattern of

dilatory conduct designed to circumvent the discovery process, particularly in

regard to her repeated failure to appear for a deposition. Appellant was also

not cooperative in producing comprehensive and timely information about

both her injuries resulting from the accident involving Appellee or those

incurred in an earlier accident. Additionally, Appellant did not file a motion for

extraordinary relief after the sanctions were entered to attempt to cure the

prejudice.    These discovery violations were severe enough to warrant

dismissal.   See Stewart v. Rossi, 681 A.2d 214, 219 (Pa. Super. 1996)

(upholding trial court’s dismissal sanction when discovery violations were in

bad faith and significantly prejudiced the defendant’s defense).

       Appellant next claims that she did not act willfully or in bad faith during

the discovery process. Appellant asserts that she complied with the CMO and


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produced all the relevant documents requested, including her medical records

and expert reports. Appellant further maintains that she agreed to submit to

a medical examination with Appellee’s physician despite the fact that Appellee

failed to seek a court order for the examination as required by Pa.R.C.P.

4010.3

        Appellant’s assertion of her purported willingness to engage in the

discovery process is contradicted by her cavalier approach to Appellee’s

discovery requests. Appellant twice cancelled her deposition on short notice,

citing counsel’s unavailability. Additionally, although Pa.R.C.P. 208.3 does not

require that a response be filed to a motion for sanctions, given the severity

of the preclusive relief requested by Appellee, we agree with Judge Bertin that

Appellant’s non-response to the motion demonstrated “the lack of seriousness

____________________________________________


3   Rule 4010 provides, in relevant part:

              (2) When the mental or physical condition of a party, or of
        a person in the custody or under the legal control of a party, is in
        controversy, the court in which the action is pending may order
        the party to submit to a physical or mental examination by an
        examiner or to produce for examination the person in the party's
        custody or legal control.
                                     * * *

              (3) The order may be made only on motion for good cause
        shown and upon notice to the person to be examined and to all
        parties and shall specify the time, place, manner, conditions and
        scope of the examination and the person or persons by whom it is
        to be made.

Pa.R.C.P. 4010(2) and (3).



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J-A27019-19


[Appellant] is taking toward her own case and her disregard of requirements

of important, timely court filings and deadlines.” Amended Memorandum and

Order, 9/20/18, at 1. Finally, and significantly, if Appellant believed that her

non-compliance with Appellee’s discovery requests was excused by legitimate

reasons, the remedy to extend the discovery deadline, as dictated by

Montgomery County Local Rule 203(e) and the CMO, was to file a motion for

extraordinary relief. Appellant did not seek such relief.

      Finally, Appellant asserts that “[t]he prejudice, if any, suffered by

[Appellee] was minimal and easily cured.” Appellant’s Brief at 52. Appellant

contends that Appellee was equally responsible for the difficulty in scheduling

her deposition.   She particularly chastises Appellee for waiting until two

months before the discovery deadline to request her deposition in light of his

representation that once the deposition occurred, Appellee would “require

several months of additional time in order to effectuate and receive subpoena

responses for pre-accident caregivers identified at the deposition.” Appellant’s

Brief Pursuant to Court’s Order of September 6, 2018 (directing that the

parties file briefs on Appellee’s Motion for Sanctions), 9/14/18, at 6. Appellant

then offers that any prejudice could have been alleviated since she offered to

be deposed despite the passing of the discovery deadline.

      We do not find Appellant’s counter to the trial court’s finding of prejudice

to be compelling. Significantly, Appellant does not dispute the basis for the

prejudice ruling—that Appellee’s inability to depose Appellant hampered


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Appellee’s ability to formulate a defense to Appellant’s lawsuit. Appellant’s

position that Appellee bore equal blame for the failure to schedule Appellant’s

deposition is not responsive to whether Appellee was prejudiced.          In any

event, it is clear that most of the scheduling issues were occasioned by

Appellant’s unavailability and her untimely cancellations.      Also, Appellant’s

claim that any prejudice was curable because she offered to be deposed after

the court-imposed deadline does not consider that scheduling such a

deposition would require defiance of the CMO. Appellant was cautioned that

discovery after the stated closing date would not be permitted “without leave

of [c]ourt and except upon showing of extraordinary circumstances.” Civil

Case Management Conference Order, 5/18/18, at unnumbered 1.                In the

absence of a motion for extraordinary relief, Appellant’s proposal for an out-

of-time deposition was legally untenable.

      Based upon the standard established by Rohm Haas/Croydon, we

conclude that the trial court correctly determined that Appellant’s dismissive

behavior throughout the discovery process warranted the severe sanction of

dismissal. Accordingly, the trial court did not abuse its discretion in preventing

Appellant from introducing evidence at trial as a sanction.

      Appellant’s final issues allege that the trial court erred when it granted

Appellee’s motion for nonsuit and further erred by denying her post-trial

motion to strike the nonsuit judgment. Appellant succinctly asserts that the

two September 2018 orders granting and amending Appellee’s Motion for


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Sanctions and Preclusion were “the initial tipping points, triggering an extreme

domino-like effect for the duration of [Appellant’s] case, resulting in a granting

of Non-Suit and judgment in favor of [Appellee].” Appellant’s Brief at 60.

      Nonsuit is properly entered where it is clear that the plaintiff has not

established a cause of action or right to relief. See Pa.R.C.P. 230.1. (“the

court, on oral motion of the defendant, may enter a nonsuit on any and all

causes of action if . . . the plaintiff has failed to establish a right to relief.”).

We will reverse an order denying a motion to remove a nonsuit only if the trial

court abused its discretion or made an error of law. Staiger v. Holohon, 100

A.3d 622, 624 (Pa. Super. 2014) (quotation omitted).

       We can readily resolve the question of the propriety of the trial court’s

decisions to grant Appellee’s motion for nonsuit and to deny Appellant’s

motion to strike. First, there is no question that Appellant failed to state a

claim for relief. Second, Appellant’s argument focuses solely on the validity of

Judge Bertin’s orders granting Appellee’s motion for sanctions and preclusion

and denying reconsideration. We have concluded that those orders are legally

sustainable; accordingly, Appellant is not entitled to relief.

      Order affirmed.

      Judge Bowes joins this Memorandum.

      Judge Strassburger files a Concurring Memorandum.




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J-A27019-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/20




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