J-A19014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SOLARA VENTURES IV, LLC,                          IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

PNC BANK, NATIONAL ASSOCIATION,
SUCCESSOR-IN-INTEREST TO NATIONAL
CITY BANK,

                            Appellee                  No. 1212 WDA 2013


            Appeal from the Judgment Entered September 11, 2013
              In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 10-009270


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 07, 2014

        Appellant, Solara Ventures IV, LLC, appeals from the judgment

entered September 11, 2013, against Appellant and in favor of PNC Bank,

National Association, Successor-in-Interest to National City Bank (PNC), for

$70,000.     At issue are three orders: the first, entered January 29, 2013,

imposed sanctions against Appellant for discovery violations, and the

remaining two, entered July 23, 2013, dismissed this action and awarded




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Appellant is a real estate developer.1 In 2007, Appellant commenced a

development project in the city of Pittsburgh known as the Otto Milk Factory

Condominiums (the Project).           Appellant secured financing for the Project

through National City Bank.            Subsequently, Appellant sought additional

financing to cover higher than expected construction costs.         According to

Appellant, National City Bank assured Appellant that additional financing was

forthcoming.      However, National City Bank was acquired by PNC, which

thereafter declined Appellant further financing. Appellant obtained financing

from a third party and completed the Project.

       In May 2010, Appellant commenced this litigation, asserting breach of




The parties began the discovery process, and in October 2010, PNC

requested electronically-stored information from Appellant.

       Thereafter, in a dispute ongoing for more than two years, Appellant

offered a series of inconsistent, seemingly contradictory reasons for its

                                                                 le, in December

2010, Appellant suggested that a computer virus had rendered such

electronically-stored information irretrievable but claimed the computer hard

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1
                                                                             ute
certain actions taken by Mr. Benoff to Appellant.




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drives had been preserved for inspection. See

Sanctions, Exhibit 2, at 4. Later, in April 2011, Appellant indicated that the

virus-

the computer hard drives were not preserved. See id., Exhibit 3, at 2.

         In March 2012, Appellant informed PNC that (1) a virus had not

impacted its ability to retrieve email correspondence; (2) it had compiled




maintained a copy of the discs for inspection.      See id., Exhibit 6, at 3

(document paginated incorrectly).      In April 2012, Appellant testified via

deposition that it did not maintain historical emails relevant to the Project

                                                              sfer email from

an old computer onto a new one; (2) Appellant had purchased at least one

new computer since the Project began; (3) Appellant did not archive old

                                  -                                  See id.,

Exhibit 1, at 200-06.   Also in April 2012, Appellant reiterated that it had



                               See id., Exhibit 7, at 2. Thereafter, in May

2012, Appellant produced the two discs, previously mentioned, containing

approximately 740 emails.      None of the emails produced predated the

commencement of this litigation.      Nevertheless, Appellant had attached

historical emails, contemporaneous with the Project, to his complaint.


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       In July 2012, PNC filed a motion seeking sanctions based upon



spoliation of evidence.      Appellant responded in August 2012, advising the

trial court that (1) Appellant had engaged a technical services company to



email application; (2) the emails were neither organized nor indexed; and

(3) Appellant had reviewed the emails and selected approximately 2,100

emails for production. See

for   Spoliation Sanctions, at 2-4.              The   period in   which this email

correspondence occurred is not clear from the record.

       Following at least one hearing and extensive briefing, the trial court

                                        See Trial Court Order (01/29/2013). The




                                        bad faith required an adverse inference.



motion.2     As a further sanction, the court directed Appellant to make

available to PNC the approximately 41,000 emails retrieved from Appellan



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2
    Thereafter, PNC submitted documentation supporting its request for




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secure these documents at the same time counsel informed Appellant of the

                               mails available to PNC.

      Appellant did not file a motion for reconsideration, nor did Appellant



substance of the order but failed to either secure the 41,000 emails or make

them available to PNC. Thereafter, Appellant filed an interlocutory appeal,

which was quashed by this Court.         See Order of the Superior Court, 322

WDA 2013 (05/20/2013).

      In February 2013, PNC moved for further sanctions, again seeking

                                                                  -compliance with



motion, Appellant asserted, for the first time, that a portion of the 41,000

emails were subject to the attorney-client privilege.

      The trial court ordered deposition testimony to establish whether

Appellant had complied with the sanctions order.           The court expressed its

specific concern that Appellant failed to comply with the provision directing

counsel to take possession of the emails at the same time as counsel

informed Appellant that the emails were to be surrendered to PNC.



deposition   that   counsel   informed    Appellant   of    the   sanctions   order

approximately one month prior to taking possession of the 41,000 emails.


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                                                     See   Trial   Court   Orders

(07/23/2013).

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court did not issue an opinion.

      Appellant raises the following issues on appeal: (1) whether the trial



court erred in dismissing this action

with the sanctions order; and (3) whether the award of $70,000 in

                                          See                         -6 (edited

for ease of analysis).

                                                       following standard:

      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: 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 where the violation of the
      discovery rules is willful and the opposing party has been
      prejudiced.

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



requires a showing of manifest unreasonableness, partiality, ill-will, or such

lack of supp                                            Christian v. Pa. Fin.

Responsibility Assigned Claims Plan, 686 A.2d 1, 5 (Pa. Super. 1996).


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J-A19014-14


      In its first issue raised on appeal, Appellant contends that the trial

court abused its discretion by imposing sanctions.        In support of this




(2) the trial court erred by imposing sanctions without an evidentiary

hearing; and (3)



arguments are devoid of merit.

      Initially, Appellant argues that the record does not support the trial

                hat Appellant misled the court and PNC. We disagree. The




          Id.

                                                                            e

                                                      GMH Assocs., Inc. v.

Prudential Realty Grp., 752 A.2d 889, 898 (Pa. Super. 2000). Competent



that Appellant provided contradictory explanations for its repeated failure to




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comply with its discovery obligations.    Accordingly, we are bound by the



      Appellant also claims that he was entitled to an evidentiary hearing

prior to the imposition of sanctions.    Appellant cites in support the long-

standing precedent of Borough of Nanty-Glo v. Am. Sur. Co. of N.Y., 163

A. 523 (Pa. 1932) (reversing judgment entered upon a directed verdict

where movant relied solely upon testimonial evidence), and invokes his right

to due process.

      Appellant never requested a hearing from the trial court. Accordingly,

we deem this issue waived. See Pa.R.A.P. 302(a); see, e.g., Irwin Union

Nat. Bank & Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010)

(finding waiver where Appellant failed to seek an extension of the discovery

period from the trial court); Brown v. Philadelphia Tribune Co., 668 A.2d



appeal. This is true even if the issues raised on appeal are of constitutional



      Appellant offers no support for its contention that Nanty-Glo applies

in the discovery context, and we are aware of none.

      Testimonial affidavits of the moving party or his witnesses, not
      documentary, even if uncontradicted, will not afford sufficient
      basis for the entry of summary judgment, since the credibility of
      the testimony is still a matter for the [factfinder].

      If, however, the moving party supports its motion for summary
      judgment with admissions by the opposing party, Nanty Glo
      does not bar entry of summary judgment.

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J-A19014-14



DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. 2013)

(citations omitted).       Nevertheless, assuming arguendo its application is

appro

             admissions. Moreover, such admissions were not limited to oral

testimony or affidavits, but included documentary evidence.                  Thus, absent

                                                 e   Nanty-Glo       rule   is   misplaced.

DeArmitt, 73 A.3d at 595.
                                                                 3
                                                                      Appellant offers no

relevant authority for its position that due process required the trial court to

afford Appellant an evidentiary hearing, particularly in the absence of a

request for one. See, e.g., Rogal v. Am. Broad. Cos., Inc., 74 F.3d 40,




evi

discern no abuse of discretion.




criticism of Appellant for not inviting PNC to participate in the retrieval of the

____________________________________________


3
   Appellant erroneously invokes the Fifth Amendment of the U.S.
Constitution, whereas the Fourteenth Amendment affords the right of due
process in state court.




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J-A19014-14




memorandum:

      Because of the conflicting responses to the discovery requests,
      PNC has never had the opportunity to become involved in the
      retrieval process. If there had been a virus, the computer
      should be available. If the computer or its hard drive had been

                                         for documents. Even if Mr.
      Benoff had only recently learned that it was possible for
      documents to be retrieved, PNC should have been told and
      invited to participate in the process. Finally, a decision as to
      which of the 41,000 emails should be produced was made only
      by Mr. Benoff who has not acted in good faith throughout the
      discovery process.

Trial Court Memorandum (01/29/2013), at 7.

      According to Appellant, Pennsylvania Rule of Civil Procedure 4009.12

                                                  in the discovery process.

Rule 4009.12 provides, in relevant part:

      Where the documents may be identified only after review of a
      larger group of documents, and the burden of identifying the
      documents would be substantially the same for the party serving
      the request as for the party served, the party served may afford
      the party serving the request reasonable opportunity to identify
      the documents, to examine or inspect them and to obtain copies.

Pa.R.C.P. 4009.12(a)(2)(i) (emphasis added).    Based upon this provision,

Appellant asserts that it had no obligation to include PNC in the email



establishes an abuse of discretion.

                                                                         um




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J-A19014-14


discovery obligations pursuant to Rule 4009.12.       Rather, the court was



4019, which affords the trial court considerable discretion in crafting an

                                                               See Pa.R.C.P.



a party or person otherwise fails to make discovery or to obey an order of




                                       Rohm & Haas Co., 992 A.2d at 142.

      Appellant did not proceed through the discovery process in good faith.

For more than two years, it offered contradictory explanations for its failure

to produce electronically-

motion for sanctions, Appell




                                                                      emails.

See



that Appellant could, or even should, have included PNC in the retrieval

process merely highlights the exasperation with which the court viewed




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J-A19014-14


      In its second issue raised on appeal, Appellant contends the trial court

erred in

the sanctions order. Initially, Appellant challenges the following provisions

of the sanctions order:

      [1] Within twenty (20) days [Appellant] shall make available to
                              oximately 41,000 documents that were


      obtain the documents from Mr. Benoff at the same time
                                       these documents will be


See Trial Court Order (01/29/2013), at 2.



most of the documents were not relevant or were subject to attorney-client

privilege.   Appellant also argues that the provision directing counsel to




violate the Pennsylvania Rules of Profe

Appellant.

      We deem these arguments waived. Appellant did not file a motion to



provisions in a timely manner. See Pa.R.A.P. 302(a). Moreover, Appellant

did not invoke the attorney-client privilege until long after the deadline to

comply had passed. Id.; see also Law Office of Douglas T. Harris, Esq.

v. Phila. Waterfront Partners, LP, 957 A.2d 1223, 1232 (Pa. Super.


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J-A19014-14


2008) (concluding that a party implicitly waives attorney-client privilege if

counsel does not raise it in a timely manner).4

       Appellant also contends that dismissal was premature, citing in

support

Transp., 710 A.2d 23 (Pa. 1998). According to Appellant, in deciding the



availability of a lesser sanction that will protect the opposing party's rights

                                           Schroeder, 710 A.2d at 27. Appellant

contends the trial court failed to do so here.



                                Schroeder is misplaced.    Appellant suggests to

this Court that the trial court dismissed its case merely for its failure to

produce documents. However, Appellant conflates several discrete steps in



court imposed sanctions upon Appellant in January 2013, it specifically

decl



____________________________________________


4



remove any opportunity for Mr. Benoff to destroy records once he learned
that the documents that he had not produced would be made available to
                  -
discovery. See Trial Court Memorandum (04/11/2013), at 1-2. Thus,
absent waiver, we discern no abuse of discretion.



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J-A19014-14


                         -party discovery.    See Trial Court Memorandum

(01/29/2013). Thus, the court implicitly found that PNC had suffered little

or no prejudice at that time.     Thereafter, in April 2013, the trial court



with the sanctions order was established.    In July 2013, following further




that dismissal was premature. Rather, dismissal was the cumulative result

                          ilures to proceed with discovery in good faith and




successfully deter Appellant from engaging in further dilatory behavior, we



Schroeder, 710 A.2d at 27; see also Rohm & Haas Co., 992 A.2d at 142

(directing a trial court to consider several factors before dismissing a case,

inc




                                                                   Jacobs v.

Jacobs

award of one-


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J-A19014-14


discovery violations in an equitable distribution proceeding). Here, pursuant




this request, the trial court declined to award PNC the full amount, awarding

instead $70,000. We discern no abuse of discretion.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2014




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