J-A32023-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

RUBEN POLLOCK,                             :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                   Appellant               :
                                           :
                      v.                   :
                                           :
F & D INVESTORS, L.L.P.,                   :
                                           :
                   Appellee                :     No. 865 MDA 2017

                  Appeal from the Order Entered May 5, 2017
                in the Court of Common Pleas of Berks County
                       Civil Division at No(s): 16-14209

BEFORE:      OTT, DUBOW, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                                    FILED MARCH 19, 2018

      I agree with the Majority that, pursuant to the factors outlined in City

of Philadelphia v. FOP Lodge No. 5 (Breary), 985 A.2d 1259 (Pa. 2009),

the trial court abused its discretion by discontinuing Appellant’s case with

prejudice.    Majority Memorandum at 4-7.         As the Majority explains,

discontinuance of the entire case was an extreme sanction not warranted by

the facts of this case.

      Nevertheless, I write separately regarding two points. First, I would not

simply reverse the trial court’s order. Instead, I would vacate the order and

remand this matter to permit the trial court to consider whether a lesser

sanction may be appropriate. While the trial court abused its discretion by

discontinuing the action with prejudice, in my view, this does not mean that


*Retired Senior Judge assigned to the Superior Court.
J-A32023-17


Appellant should not be sanctioned at all. The trial court found that instead

of responding to discovery requests with an objection or obtaining a protective

order, Appellant simply ignored the requests. Trial Court Opinion, 7/6/2017,

at 4. Appellant did not contest this factual finding on appeal. Additionally,

part of the reason for the sanction was the failure of Appellant’s counsel to

appear for a status conference. Id. While outright dismissal is too severe,

other sanctions may be appropriate.1 See Bennett v. Home Depot U.S.A.,

Inc., 764 A.2d 605, 609 (Pa. Super. 2000) (reversing order which dismissed

action as sanction for counsel’s failure to appear at a pretrial conference and

remanding with instructions to impose appropriate sanctions short of

dismissal).

      Second, I cannot join the Majority’s footnote regarding the effect of the

notice of appeal upon the trial court’s jurisdiction. See Majority Memorandum

at 3, n.3. The Majority states that because Appellant filed a notice of appeal

on May 30, 2017, the trial court was divested of jurisdiction over the instant

matter, rendering the trial court’s July 6, 2017 order denying Appellant’s

motion for reinstatement a legal nullity. Id. I agree with the Majority that

the July 6, 2017 order was a legal nullity, but the Majority’s statement is too

broad. The trial court discontinued the case with prejudice on May 5, 2017.




1 Indeed, Appellant even acknowledges that the trial court had the ability to
impose sanctions based upon counsel’s action or inaction. Appellant’s Brief at
27.

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J-A32023-17


On May 15, 2017, Appellant filed a motion to strike the discontinuance and to

reinstate the civil action. On May 30, 2017, Appellant filed a notice of appeal

from the order discontinuing the matter. On July 6, 2017, the trial court issued

an order denying Appellant’s motion.

      Pa.R.A.P. 1701 prohibits a trial court from proceeding further in the

matter after an appeal is taken, but there are exceptions.            Pa.R.A.P.

1701(“Except as otherwise prescribed by these rules, after an appeal is taken

…, the trial court may no longer proceed further in the matter.”). One of those

exceptions is set forth in Rule 1701(b)(3), which states in pertinent part the

following:

      (b) Authority of a trial court or agency after appeal.—After an
      appeal is taken or review of a quasijudicial order is sought, the
      trial court or other government unit may:

             (3) Grant reconsideration of the order which is the
             subject of the appeal or petition, if:

                      (i) an application for reconsideration
                  of the order is filed in the trial court …
                  within the time provided or prescribed by
                  law; and

                     (ii) an order expressly granting
                  reconsideration of such prior order is filed
                  in the trial court … within the time
                  prescribed by these rules for the filing of
                  a notice of appeal …, or within any shorter
                  time provided or prescribed by law for the
                  granting of reconsideration.

Pa.R.A.P. 1701(b)(3).




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J-A32023-17


      Here, Appellant’s May 15, 2017 motion, which was styled as a motion

to strike the discontinuance and to reinstate the civil action, sought

reconsideration of the trial court’s order to discontinue the action with

prejudice. Notwithstanding Appellant’s filing of a notice of appeal, because

Appellant’s May 15, 2017 motion was timely filed and akin to a motion for

reconsideration, the trial court could have ruled on the motion pursuant to

Rule 1701(b)(3) if the court had entered an order expressly granting

reconsideration within thirty days of its May 5, 2017 order discontinuing the

case. The trial court did not enter such an order. Therefore, it is misleading

to say simply that the notice of appeal divested the trial court of jurisdiction

regarding Appellant’s May 15, 2017 motion. Instead, the reason that the court

did not have jurisdiction to enter its July 6, 2017 order w as that, prior to

entering the order, it did not enter an order expressly granting reconsideration

within the timeframes set forth in Rule 1701(b)(3).

      Accordingly, I would vacate the order discontinuing the action and

remand for imposition of appropriate sanctions short of dismissal.




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