J-S69037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHARITA ROLLINS,                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

       v.

RICHARD HOPKINS AND PEGGY
HOPKINS,

       v.

MICHELLE ROLLINS,                                    No. 566 EDA 2015

                        Appellees


              Appeal from the Order Entered February 4, 2015
            In the Court of Common Pleas of Philadelphia County
                     Civil Division at No(s): 130803550


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 14, 2016

     Appellant, Sharita Rollins, appeals from an order entered on February

4, 2015 that awarded counsel fees to defense counsel in the amount of

$1,484.96. We affirm.

     The trial court aptly summarized the facts in this case as follows:

     [Appellant was involved] in a motor vehicle collision on June 22,
     2013. [Thereafter, Appellant filed a civil complaint that] alleged
     that she was the driver of a motor vehicle. Counsel [for both
     sides] initially agreed to depose [Appellant] in January of 2014.
     [At her deposition, Appellant] testified that she was the
     passenger, not the driver as alleged in the complaint. Thus[,]
     the complaint needed to be amended and additional parties
     joined. To avoid re-deposition when other parties were joined,
     the attorneys agreed to further delay [Appellant’s] deposition
     until the complaint [was] amended. By May 9[, 2014 Appellant]
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     still had not completed her deposition, so defense counsel moved
     for an extension of the case management deadlines. On May
     15[, 2014] defense counsel moved to compel [Appellant] to
     appear for a deposition on May 30. Since [Appellant] failed to
     complete her deposition, the [trial c]ourt granted extraordinary
     relief and extended the discovery deadline by 90 days. On June
     2[, 2014] the defense again moved to compel [Appellant] to
     appear for deposition on June 18. The [trial c]ourt granted the
     motion on June 16. [Appellant] did not appear for deposition.
     On June 20 defense counsel moved to sanction [Appellant] for
     failing to follow the court’s deposition order. The court granted
     the motion by order dated June 30 and precluded [Appellant]
     from introducing any evidence at trial. [Appellant’s] counsel
     immediately filed a motion for reconsideration explaining why
     [Appellant] failed to obey the June 1[6] order.            Despite
     [Appellant’s] prior failure to comply with the deposition order,
     the [trial c]ourt permitted [Appellant’s] counsel to produce
     [Appellant] to be deposed, but ordered [Appellant’s] counsel to
     pay for the court reporter, defendant’s copy of the deposition
     transcript, and all reasonable attorney fees incurred in the filing
     of the motions and additional discovery practice. The order
     stated defense counsel may file a motion listing its compensable
     cost and fees if counsel [could not] agree upon “reasonable”
     attorney fees.       The order also deferred the case until
     [Appellant’s] deposition was completed.

     On October 9[, 2014 Appellant’s] counsel moved to remove the
     case from deferred status even though [Appellant’s] deposition
     had not been completed. On November 4 the [trial c]ourt
     denied the [Appellant’s] motion, and for the third time ordered
     [Appellant] to be deposed. This time the Court ordered the
     deposition to occur on November 6[, 2014]. On November 6,
     instead of producing [Appellant] for deposition[, Appellant’s]
     counsel filed for a praecipe to discontinue. On November 7[,
     2014] defense counsel moved to discontinue the case “with
     prejudice.” On December 4[, 2014] the [trial c]ourt issued an
     order discontinuing the case “without prejudice,” but allowed
     defense counsel to file a motion to be compensated for any
     unnecessary expenses due to [Appellant’s] conduct in this case.
     Defense counsel asked for counsel fees in the amount of
     $2,387.60. The [trial c]ourt reviewed the motion and rejected
     some fees such as work on the petition to discontinue with
     prejudice.     Other fees that resulted exclusively from
     [Appellant’s] dilatory conduct, such as work on motions to

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J-S69037-15


       sanction [Appellant] for failing to appear for [her] court ordered
       deposition, were accepted. On February 4, 2015 the [trial c]ourt
       ordered [Appellant’s] counsel to pay $1,484.96 in counsel fees.

Trial Court Opinion, 6/10/15, at 2-4.

       On appeal, Appellant raises the following question for our review:

       Whether the trial court abused its discretion and otherwise
       committed an error of law when it improperly ordered
       [Appellant] to pay counsel fees to [defendants] following
       [Appellant’s] voluntary discontinuance without prejudice under
       Pa.R.C.P. 229?

Appellant’s Brief at 6. 1



____________________________________________


1
   In reviewing the trial court’s order of February 4, 2015 and its June 10,
2015 opinion, confusion arose as to whether the trial court sanctioned
Appellant or Appellant’s counsel. In its February 4 order, the trial court
grants defendants’ motion for counsel fees and then states “counsel for
[Appellant] shall pay counsel for Defendant[s], with a check payable to
“Progressive Insurance” in the amount of $1,484.96…”. Trial Court Order,
2/4/15 (emphasis added). This language can be interpreted in two ways;
first, Appellant’s counsel is being sanctioned and he or she must pay the
award for counsel fees; or secondly, Appellant is being sanctioned and she
must pay the award for counsel fees, however, her lawyer is directed to
send the check to defense counsel. This confusion is further compounded by
the trial court’s opinion in which the court states that it permitted defense
counsel to file a motion seeking fees “due to [Appellant’s] conduct”. Trial
Court Opinion, 6/11/15, at 3. However, the trial court’s opinion goes on to
state that it “ordered [Appellant’s] counsel to pay $1,484.96 in counsel
fees.” Id at 4. Although we believe that this language is unclear, we note
that Appellant’s only issue on appeal is that it was error for the trial court to
order Appellant to pay counsel fees. See Appellant’s Brief at 6 (“Whether
the trial court abused its discretion and otherwise committed an error of law
when it improperly ordered [Appellant] to pay counsel fees to
Defendant[s]…”). Thus, Appellant waived any argument that the trial court
erred in directing Appellant’s counsel to pay the counsel fees and we only
consider whether it was error to sanction Appellant.



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        Appellant’s sole claim challenges an order imposing counsel fees

because of her failure to appear for court-ordered depositions.             Appellant

argues there can be no recovery of counsel fees by an adverse party in the

absence of express statutory authority, an agreement of the parties, or

some other established exception.              Appellant therefore maintains that the

trial court lacked grounds to award counsel fees for missed or cancelled

depositions because she voluntarily discontinued her case without prejudice

pursuant to Pa.R.C.P. 229.2         In such circumstances, Appellant insists that


____________________________________________


2
    Pa.R.C.P. 229 provides as follows:

                             Rule 229. Discontinuance

        (a) A discontinuance shall be the exclusive method of voluntary
        termination of an action, in whole or in part, by the plaintiff
        before commencement of the trial.

        (b)(1) Except as otherwise provided in subdivision (b)(2), a
        discontinuance may not be entered as to less than all defendants
        except upon the written consent of all parties or leave of court
        upon motion of any plaintiff or any defendant for whom plaintiff
        has stipulated in writing to the discontinuance.

        (2) In an action governed by Rule 1042.3, a plaintiff may enter a
        discontinuance as to a defendant if a certificate of merit as to
        that defendant has not been filed.

        Note: Rule 1042.3 requires the filing of a certificate of merit as
        to a defendant against whom a professional liability claim is
        asserted.

        (c) The court, upon petition and after notice, may strike off a
        discontinuance in order to protect the rights of any party from
(Footnote Continued Next Page)


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the only remedy available to an adverse party is to strike the discontinuance

under Pa.R.C.P. 229(c).           Appellant also claims that she should not be

compelled to pay counsel fees since defense counsel is a salaried employee

of Progressive Insurance who does not bill for legal services or receive

payment on an hourly basis. Appellant further asserts that defendants are

not responsible for costs of counsel because insurance premiums that they

have already paid cover those costs. These contentions are untenable.

      Contrary to Appellant’s argument, there are two authoritative sources

that sanction the trial court’s actions.3 Under Pa.R.C.P. 4019, the trial court

may, upon motion, make an appropriate order if “a party or person

otherwise fails to make discovery or to obey an order of court respecting

discovery.” Pa.R.C.P. 4019(a)(1)(viii). In addition, a litigant is entitled to

                       _______________________
(Footnote Continued)

      unreasonable inconvenience, vexation, harassment, expense, or
      prejudice.

Pa.R.C.P. 229.
3
  In their brief, Appellees refer us to the unreported trial court opinion in
Grove v. Scott, 17 Pa.D. & C. 4th 212 (CCP York 1992) as perhaps lending
some support to Appellant’s argument. Appellees’ brief at 12, n.5. The
Grove case, however, is inapplicable under the present facts. In Grove, the
court held that it lacked jurisdiction and that the defendant waived its right
to seek sanctions under 42 Pa.C.S.A. § 2503(7) where the sanctions request
was not made within 30 days of the date that the plaintiff discontinued the
action.   Here, defense counsel sought sanctions before the trial court
granted Appellant’s request for a discontinuance.         See Shevchik v.
Zeregel, 8 Pa. D. & C.4th 66, 67 (CCP Westmoreland 1990) (claim for
attorneys’ fees under § 2503 is preserved when raised before the underlying
action concludes).



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an award of reasonable counsel fees as part of the taxable costs of a matter

where the court imposes the fees “as a sanction against another [litigant] for

dilatory, obdurate or vexatious conduct during the pendency of a matter.”

42 Pa.C.S.A. § 2503(7).

      Both the imposition of discovery sanctions under Rule 4019 and the

award of counsel fees pursuant to § 2503(7) lie within the sound discretion

of the trial court.   Anthony Biddle Contractors, Inc. v. Preet Allied

American Street, LP, 28 A.3d 916, 926 (Pa. Super. 2011) (“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.”); In re Padezanin, 937 A.2d 475, 483-484 (Pa. Super. 2007)

(“[i]n reviewing a trial court's award of attorneys' fees [under 42 Pa.C.S.A.

§ 2503(7)], our standard is abuse of discretion”). We evaluate the following

factors when assessing the propriety of a discovery sanction: (1) the nature

and severity of the discovery violation; (2) the defaulting party's willfulness

or bad faith; (3) prejudice to the opposing party; and, (4) the ability to cure

the prejudice. See Anthony Biddle Contractors, 28 A.3d at 926.

      The trial court offered the following rationale in support of its order

imposing sanctions:

      Awarding counsel fees is a fair sanction for all the time and
      energy wasted because [Appellant] repeatedly failed to appear
      for court ordered depositions. Her repeated failures to appear
      unnecessarily wasted defense counsel resources. [Appellant’s]
      repeated delays and failure[s] to appear despite court orders
      constitute dilatory, obdurate, and vexatious conduct worthy of


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      sanction through counsel fees independent of whether or not she
      has discontinued her case. Where conduct has resulted in
      significant and unnecessary cost to an opposing party, a court
      has inherent authority to impose fees and costs both to
      reimburse the defendant for unnecessary expenses and to
      dissuade counsel from similar behavior. [Appellant] has a right
      to discontinue an action and, if the statute of limitations has not
      run, to re-file anew. But litigants do not have an unrestrained
      right to waste defense counsel time and their client’s resources.

Trial Court Opinion, 6/10/15, at 4 (footnotes omitted).

      We agree with the trial court’s assessments and we further conclude

that our four-part test supports the trial court’s imposition of sanctions. The

record establishes that Appellant willfully and in bad faith failed to appear for

multiple court-ordered depositions and that this conduct prejudiced the

defendants and led the trial court to extend the case management deadlines.

We   recognize   that   multiple   delays   “disrupt   the   efficient   and   just

administration of justice and [] send a blatant message that case

management deadlines are meaningless.” Kurian ex rel. Kurian v.

Anisman, 851 A.2d 152, 162 (Pa. Super. 2004) (internal quotations

omitted).   In such situations, we have said:      “When [case management]

deadlines are violated with impunity ... the abusing party must be prepared

to pay the consequences.” Id. In addition, we have approved orders that

award attorneys’ fees under 42 Pa.C.S.A. § 2503(7) where such fees are

incurred to secure compliance with judicial orders. See In re Padezanin,

supra. Accordingly, we discern no abuse of discretion.




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J-S69037-15


      Lastly, we are not persuaded by Appellant’s claims that she should not

be compelled to pay counsel fees because defense counsel is a salaried

employee or because defendants are not “actually” responsible for the costs

of their defense.   Despite these contentions, the record demonstrates that

defense counsel expended time and resources on unnecessary actions in

litigating this dispute.   Such expenditures are unwarranted and will, over

time, boost insurance costs and, in turn, policy premiums.           Hence,

Appellant’s alternate contentions meritd no relief.


     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2016




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