J-A16011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOHN R. FREY, H. ELAINE FREY,                 IN THE SUPERIOR COURT
    ROBERT G. FREY, SUE FREY, JAMES                         OF
    MILLER, AND ROBIN MILLER                           PENNSYLVANIA



                        v.

    BONNY GOLD, DENNIS GOLD, SLURRY
    TECHNOLOGIES OPERATING, LLC,
    SLURRY TECHNOLOGIES OPERATING,
    INC., PILGRIM ENERGY COMPANY,
    PILGRIM COAL COMPANY, CHARLES
    MUSE, A.C. MUSE, ENSUM
    PARTNERSHIP NO. 2, SLURRY
    TECHNOLOGIES, INC., AGGREGATE
    SOLUTIONS, INC., ALBERT C.
    MUSE/REPRESENTATIVE OF THE
    ESTATE OF CHARLES H. MUSE, JR.,
    DECEASED, ALBERT C.
    MUSE/REPRESENTATIVE OF THE
    ESTATE OF CHARLES HOWARD MUSE,
    JR.


    APPEAL OF: BONNY GOLD, DENNIS
                                                     No. 1158 WDA 2016
    GOLD AND SLURRY TECHNOLOGIES
    OPERATING, LLC


                 Appeal from the Judgment Entered July 6, 2016
                In the Court of Common Pleas of Venango County
                        Civil Division at No: 2002-00232


BEFORE: , STABILE, J., FORD ELLIOTT, P.J.E. and STRASSBURGER,* J.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 20, 2017



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A16011-17


      Appellants,   Bonny   Gold,   Dennis   Gold,   and   Slurry   Technologies

Operating, Inc (collectively, “Appellants”), appeal from the July 6, 2016

judgment in favor of Appellees John R. Frey, Elaine Frey, Robert G. Frey,

James Miller, and Robin Miller. We affirm.

      The trial court’s opinion, which we quoted at length in the companion

case (1120 WDA 2016) sets forth the relevant facts and procedural history.

At this docket number, Appellants challenge the trial court’s discovery

sanctions.   The trial court issued a series of sanctions against Appellants

during the course of this litigation, culminating in an order preventing

Appellants from contesting liability. As set forth at docket number 1120 of

2016, the jury returned a substantial award of damages in favor of Appellees.

Here, Appellants challenge several of the trial court’s pre-trial orders imposing

discovery sanctions.

      In essence, Appellants argue that they consistently attempted to comply

with Appellees’ discovery requests; that certain documents were never in their

possession and that Appellees were aware of that fact; and that the trial

court’s various sanctions against them were excessive and not warranted

under applicable law. Before its final sanction—precluding Appellants from

contesting liability—the trial court conducted a lengthy hearing, after which it

rejected the factual bases for Appellants’ arguments. In particular, the trial

court found that the “Gold Defendants have attempted numerous times to

fabricate documents or utilize documents already in existence in order to


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J-A16011-17


prove they have purged themselves of contempt.”            Trial Court Opinion,

10/7/16, at 21. In essence, the trial court concluded that Appellants were

dishonest, and that they led Appellees on a wild goose chase throughout years

of unnecessarily protracted discovery.

      We recognize that appellate review of an order terminating litigation for

discovery sanctions is “stringent.” Cove Centre, Inc. v. Westhafer Const.,

Inc., 965 A.2d 259, 261 (Pa. Super. 2009).

            Generally, imposition of sanctions for a party's failure to
      comply with discovery is subject to the discretion of the trial court
      as is the severity of the sanctions imposed. Nevertheless, the
      court’s discretion is not unfettered; 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.
      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 together
      with the necessity of the sanction.

            Mindful, of course, that each factor represents a necessary
      consideration and not a necessary prerequisite, this Court has
      outlined the following factors:

            (1) the nature and severity of the discovery violation;

            (2) the defaulting party's willfulness or bad faith;

            (3) prejudice to the opposing party;

            (4) the ability to cure the prejudice; and

             (5) the importance of the precluded evidence in light of the
      failure to comply.

Id.




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J-A16011-17


      We have reviewed the record, the applicable law, the trial court’s

opinions and the parties’ briefs. We conclude that the trial court’s opinions of

October 7, 2016, at pages 27-35, and the trial court’s entire opinion of

November 26, 2012, thoroughly analyze the applicable law and the evidence

of record. We affirm the judgment on the basis of those opinions, and order

that a copy of each be filed along with this memorandum.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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