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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                   :   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, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.:                            FILED MARCH 19, 2018

      Appellant, Ruben Pollock, appeals from the May 2, 2017 Order,

discontinuing this case with prejudice. After careful review, we reverse.

      The facts of the underlying matter are largely immaterial to our

disposition.   Briefly, on June 23, 2016, Appellant filed a Complaint in this

premises liability action against Appellee, F & D Investors, L.L.P., after

allegedly experiencing a slip and fall on February 9, 2016.    The trial court

reinstated Appellant’s Complaint on July 22, 2016, and again on November

29, 2016.

      On December 19, 2016, Appellee filed an Answer to the Complaint and

New Matter.         Appellant filed a Reply to the New Matter the next day.

Appellee commenced discovery by requesting the production of documents

and a first set of interrogatories. The court scheduled a status conference

for April 18, 2017.

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



        On January 31, 2017, Appellant answered Appellee’s discovery

incompletely. That same day, Appellee’s counsel notified Appellant’s counsel

by letter that he must file full and complete discovery responses.

        On   March    6,   2017,     Appellee    filed   a   request   for   Appellant’s

authorization to obtain his medical records. Appellant failed to comply with

this request even after Appellee served a second request on Appellant in

April 2017.

        On April 20, 2017, the trial court entered an Order for Continuance,

rescheduling the scheduled status conference to May 2, 2017.

        Appellant and his counsel failed to appear at the May 2, 2017 status

conference. Accordingly, citing Appellant’s failure to appear and noting that

“no progress has occurred in this case recently,” the trial court entered an

Order ending and discontinuing this case with prejudice “for failure of

[Appellant] to prosecute the matter.”1 Trial Ct. Order, 5/5/17, at 2.

        On May 15, 2017, Appellant filed a Motion to Strike the Discontinuance

with Prejudice and to Reinstate the Civil Action. On May 18, 2017, Appellee

filed a Response to this Motion.

        On May 30, 2017, Appellant filed a timely appeal to this Court.2 Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

____________________________________________


1   The prothonotary entered this Order on the docket on May 5, 2017.

2On June 19, 2017,after Appellant had filed his Notice of Appeal, the court
held a hearing on Appellant’s Motion to Reinstate. On June 26, 2017,
(Footnote Continued Next Page)


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      Appellant raises the following two issues on appeal:

      1. Whether the trial court abused its discretion and otherwise
         committed an error of law when it improperly discontinued
         [Appellant’s] case?

      2. Whether the trial court abused its discretion and otherwise
         committed an error of law when it improperly denied
         [Appellant’s] Motion for Reinstatement?[3]

Appellant’s Brief at 11.

      In his first issue, Appellant challenges the court’s decision to

discontinue his case with prejudice as a discovery sanction pursuant to

Pa.R.C.P. 4019(c)(5).       Appellant argues that this action was inappropriate

because he had not violated any order of court regarding discovery 4 and has

subsequently provided Appellee with the authorizations necessary to obtain

his medical records. Id. at 20, 22-23. He claims that, by providing Appellee

with the discovery materials it demanded, he has cured any possible

(Footnote Continued) _______________________

Appellant complied with Appellee’s discovery request for medical
authorizations. On July 6, 2017, the court denied Appellant’s Motion for
Reinstatement. On July 11, 2017, Appellant satisfied all other outstanding
discovery requests.    On July 14, 2017, Appellant filed a Motion for
Reconsideration of the court’s Order denying his Motion for Reinstatement.
On July 24, 2017, the court denied Appellant’s Motion for Reconsideration.

3 We observe that Appellant filed his Notice of Appeal on May 30, 2017,
which divested the trial court of jurisdiction over the instant matter. Thus,
the trial court’s July 6, 2017 Order denying Appellant’s Motion for
Reinstatement is a legal nullity. Accordingly, we decline to address the
merits of this issue.

4Appellant notes that Appellee never filed a Motion to Compel Discovery.
Appellant’s Brief at 26.



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J-A32023-17



prejudice suffered by Appellee.    Id. at 21, 23-24, 27.      With respect to

counsel’s failure to appear at the status conference, Appellant avers that

neither he nor his counsel were acting in bad faith, but that this failure was

“obviously inadvertent” and due to ambiguity in the court’s Order and

counsel’s scheduling error. Id. at 22, 25-26. Thus, Appellant argues, the

court should have imposed a less punitive sanction as fault lies with

Appellant’s counsel and not Appellant himself. Id. at 27.

      Generally, the imposition and severity of sanctions for a party’s failure

to comply with discovery is subject to the trial court’s discretion. See Reilly

v. Ernst & Young, LLP, 929 A.2d 1193, 1199 (Pa. Super. 2007) (en banc).

Where, however, the trial court enters a sanction that terminates the

underlying litigation, we apply a strict scrutiny standard of review.

Steinfurth v. LaManna, 590 A.2d 1286, 1288 (Pa. Super. 1991); see also

Rohm and Haas Co. v. Lin, 992 A.2d 132, 141-42 (Pa. Super. 2010)

(holding appellate review stringent where a default judgment is entered as a

discovery sanction).

      As this Court recognized in Stewart v. Rossi, 681 A.2d 214, 217 (Pa.

Super. 1996), "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." Our

Supreme Court reaffirmed in City of Philadelphia v. FOP Lodge No. 5

(Breary), 985 A.2d 1259, 1270 (Pa. 2009), that it “highly disfavor[ed]

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J-A32023-17



dismissal of an action . . . as a sanction for discovery violations absent the

most extreme of circumstances.”      It also adopted, for “trial and appellate

courts alike,” the factors this Court has developed and applied              in

“determining the general severity and vitality of a discovery sanction[.]” Id.

Those factors include:

      (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.

      As our High Court noted in City of Philadelphia, supra, 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.

      In its Rule 1925(a) Opinion, the court noted that it dismissed

Appellant’s case pursuant to Pa.R.C.P. No. 4019(c)(5), which governs

discovery sanctions.     Rule 4019(c)(5) provides: “[t]he court, when acting

under subdivision (a) of this rule, may make such order with regard to the

failure to make discovery as is just.” Pa.R.C.P. No. 4019(c)(5). Subdivision

(a) states that, under circumstances delineated therein, “[t]he court may,

on motion, make an appropriate order. Pa.R.C.P. No. 4019(a) (emphasis


                                     -5-
J-A32023-17



added). Here, we observe that there is no evidence in the record that the

trial court entered its Order discontinuing this action in response to a motion

filed by Appellee.

      In support of its Order, the trial court cited the following as reasons

justifying the dismissal of Appellant’s case: (1) Appellant’s failure to “provide

any requested discovery since January 31, 2017;” (2) Appellant’s failure “to

respond to additional requests for the same discovery when [Appellee’s]

counsel personally contacted him;” (3) Appellant’s failure to “raise any

objections to the discovery” or seek a protective order; and (4) Appellant’s

“failure to appear for a status conference to set deadlines.” Trial Ct. Op.,

7/10/16, at 3-4.

      We find the trial court’s rationale unconvincing. Upon considering the

factors outlined in City of Philadelphia, in particular the first two factors,

we conclude that the trial court abused its discretion in discontinuing

Appellant’s case with prejudice.

      The trial court noted in its Order that, by the time of the May 2, 2017

hearing at which Appellant failed to appear, “no progress has occurred in

this case recently.” Trial Ct. Order at 2. A review of the record indicates

that the Prothonotary reinstated Appellant’s Complaint for the second time

on November 29, 2016, and within approximately two months, the parties

had exchanged Answers and New Matter, and Appellee had served

interrogatories on Appellant.      On January 31, 2017, Appellant provided

partial Answers to Appellee’s interrogatories. Over the course of March and

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J-A32023-17



April 2017, Appellee’s counsel frequently communicated with Appellant’s

counsel concerning the deficiencies in Appellant’s discovery responses and

Appellant’s failure to authorize Appellee to obtain his medical records.

Notably, fewer than six months had passed since the prothonotary

reinstated Appellant’s Complaint for the second time and only approximately

three months had passed between the time Appellant answered Appellee’s

Interrogatories, albeit incompletely, and the May 2, 2017 status conference

at which the court discontinued the action due to an alleged “lack of

progress.”

     Moreover, Appellant’s argument that the sanction imposed by the

court was excessively severe given that he did not violate an order of court

is compelling.    Despite Appellee’s counsel’s expressed concerns that

Appellant was failing to respond to its discovery requests, at no time did

Appellee seek an order from the court to compel Appellant’s compliance or

for sanctions.   In fact, Appellee states that it “had intended to use the

scheduled conference to discuss the outstanding discovery and reach an

amicable solution so as to avoid judicial intervention with a Motion to

Compel.” Appellee’s Brief at 4.

     There is no evidence of record, finding by the court, or allegation by

Appellee that, at the time of the May 2, 2017 hearing, Appellant’s failure to

provide prompt responses to Appellee’s discovery requests had prejudiced

Appellee. See City of Philadelphia, 985 A.2d at 1270. There is likewise

no evidence, finding, or allegation that Appellant acted willfully or in bad

                                    -7-
J-A32023-17



faith when failing to provide the requested discovery materials.         Id.

Accordingly, and in light of the fact that the court had not entered an Order

directing Appellant to comply with Appellee’s discovery requests, we

conclude that the trial court abused its discretion in imposing the extreme

sanction of dismissing Appellant’s Complaint.

     Order reversed. Complaint reinstated. Jurisdiction relinquished.

Judge Ott joins this memorandum.

Judge Strassburger files a concurring/dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/19/2018




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