J-S48034-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHARON CLARK,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DENNIS GAUL,
Appellee
No. 69 EDA 2013
Appeal from the Order December 5, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: September Term, 2011, No. 0190
BEFORE: GANTMAN, J., DONOHUE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.
FILED SEPTEMBER 24, 2013
Appellant, Sharon Clark, appeals from the order granting summary
judgment in favor of Appellee, Dennis Gaul. We affirm.
The trial court set forth the facts of the case as follows:
[Appellant] brought this personal injury action to recover[]
monetary damages sustained in an automobile accident that
occurred on September 17, 2009. In her Complaint, she alleged
that this accident occurred at the intersection of Fletcher Street
and Memphis Street in Philadelphia, Pennsylvania. She alleged
that this intersection was controlled by a stop sign and that
[Appellee] failed to yield.
By agreement of the parties, the [trial c]ourt entered an
order on June 5, 2012, that required [Appellant] to provide more
specific answers to [Appellee]’s interrogatories and requests for
production of documents. On July 10, 2012, the [trial c]ourt
granted [Appellee]’s uncontested motion and again required
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S48034-13
[Appellant] to provide more specific answers to [Appellee]’s
interrogatories and requests for production of documents. These
orders specifically sought the declaration page and any signed
tort waiver forms in the files maintained by Progressive
Insurance related to [Appellant]’s mother’s vehicle. The July 10,
2012, order expressly warned [Appellant] that failure to comply
would result in preclusion of any and all testimony and/or
evidence at arbitration and/or trial.
On August 28, 2012, the [trial c]ourt entered an order
precluding [Appellant] from presenting evidence or testimony.
This order states, “And now, this 28th day of August, 2012,
[Appellee]’s Motion for Preclusion is GRANTED. It is hereby
ORDERED and DECREED that [Appellant] is precluded from
offering any and all evidence and/or testimony at the time of
arbitration and/or trial.”
[Appellant] filed two motions for
reconsideration of the [trial c]ourt’s August 28, 2012 order. In
November of 2012, the [trial c]ourt denied [Appellant]’s Motion
for Reconsideration, or in the Alternative, for certification of the
Court’s August 28, 2012 order [sic].
It then marked
[Appellant]’s second motion for reconsideration moot.
On September 26, 2012, [Appellee] filed a motion for
summary judgment requesting dismissal based on the fact that
the [trial c]ourt’s August 28, 2012 order precluded [Appellant]
from establishing a prima facie case. [On] December [5,] 2012,
after the [trial c]ourt disposed of [Appellant]’s motions for
reconsideration, th[e trial c]ourt granted [Appellee]’s motion for
summary judgment and [Appellant] filed this appeal.
(Trial Court Opinion, 4/08/13, at unnumbered pages 1-2 (record citation
omitted)).1
Appellant raises two questions for our review:
1.
Whether the trial court erred in denying [Appellant]’s
Motion for Reconsideration of the August 28, 2012
____________________________________________
1
The trial court did not order Appellant to file a statement of errors
complained of on appeal; the court entered an opinion pursuant to Pa.R.A.P.
1925(a) on April 8, 2013. See Pa.R.A.P. 1925.
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preclusion Order, and therefore, abused its discretion when
it sanctioned [Appellant] by allowing preclusion of all
evidence and testimony on [Appellant]’s behalf for
[Appellant]’s nonproduction of the Declaration page and
Tort waiver of [Appellant]’s mother, a third party, whom
[Appellant] had no control over?
2.
Whether the trial court erred in granting [Appellee]’s
Motion for Summary Judgment when it failed to review the
facts in a light most favorable to [Appellant] and give
[Appellant] the benefit of any reasonable inference, and
the record demonstrates the existence of numerous triable
issues of material fact?
(Appellant’s Brief, at 3).
In her first issue, Appellant argues that the trial court “improperly
sanctioned [her counsel] because [she] did not ignore the court’s order, but
rather, [she] cooperated to produce insurance information from a third party
whom [she] had no control over.” (Id. at 8). She asserts that, “[g]iven the
‘harsh and excessive’ sanction imposed by the trial court, [her] Motion for
Reconsideration of the August 28, 2012 order should be reversed.” (Id. at
11). We disagree.
Preliminarily, insofar as Appellant attempts to invoke our review of the
trial court’s denial of her motions to reconsider, we note that it is wellsettled that “[d]enial of reconsideration is not subject to appellate review.”
Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 743 (Pa. Super. 2009) (citing
Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 521 (Pa. Super. 1999)).
Moreover, to the extent she challenges the discretion of the trial court to
impose discovery sanctions, this claim is without merit.
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The imposition of sanctions for failure to comply with
lawful discovery requests is governed by Pa.R.C.P. 4019, which
provides in relevant part the following:
Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate
order if . . .
(vii) a party, in response to a request for production or
inspection made under Rule 4009, fails to respond that
inspection will be permitted as requested or fails to permit
inspection as requested.
(viii) a party or person otherwise fails to make discovery or
to obey an order of court respecting discovery.
Griffin v. Tedesco, 513 A.2d 1020, 1023 (Pa. Super. 1986).
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. The trial
court’s discretion, however, is not unfettered.
[W]hen a
discovery sanction is imposed, the sanction must be appropriate
when compared to the violation of the discovery rules. 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. 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 against 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
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(5) the importance of the precluded evidence in light of the
failure to comply.
Anthony Biddle Contrs., Inc. v. Preet Allied Am. St., LP, 28 A.3d 916,
926 (Pa. Super. 2011) (citations and quotation marks omitted).
Here, the discovery in question is Appellant’s mother’s insurance
information, which would determine whether Appellant was covered by full
tort or limited tort insurance, thus controlling the amount of damages in the
underlying litigation. See, e.g., Bennett v. Mucci, 901 A.2d 1038, 104041 (Pa. Super. 2006). In denying Appellant’s motion for reconsideration of
the August 28, 2012 order precluding Appellant from offering evidence or
testimony at arbitration or trial, the trial court noted that the June 5, 2012
order requiring Appellant to provide the requested documents was entered
by agreement of both parties. (See Memorandum Order, 11/14/12, at 1).
Furthermore, Appellant did not contest Appellee’s follow-up motion to
provide the same information, and was warned that “[s]anctions may be
imposed for continued failure to comply . . . .” (Id. (citing Order, 7/11/12)
(emphasis omitted)). Nonetheless, Appellant failed to comply, and did not
contest
the
August
28,
2012
order
until
she
filed
a
motion
for
reconsideration one month later, on September 28, 2012. (See id. at 2).
At that time, Appellant alleged that she was not served with notice of the
motion for preclusion; this claim was rebutted by Appellee’s presentation of
a receipt from the trial court’s e-filing system, and Appellant failed to
respond. (Id. at 2-3). She also did not attend the hearing. (Id. at 4).
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In her September 29, 2012 motion, Appellant also claimed that she
was “actively cooperating . . . to produce the discovery required by th[e
c]ourt’s orders,” (id. at 3), by “not object[ing]” to Appellee’s attempt to
subpoena the Progressive Insurance records.
Reconsideration, 9/28/12, at 3 ¶ 9).
([Appellant]’s Motion for
However, as noted by Appellee, his
request was hindered by Appellant’s refusal to respond to a request to
obtain the records on an expedited basis.
(See Appellee’s Brief, at 13).
Appellant also claims she “issued, and paid for, a records request through
MCS Records Service for the records pertaining to Progressive Insurance
Company.”
(Appellant’s Brief, at 10).
However, a review of the record
indicates that, in fact, the request was not made until July 23, 2012, (see
[Appellant]’s Motion for Reconsideration, 9/28/12, at Exhibit D), despite the
June 4, 2012 discovery deadline. (See Order, 6/06/12; Order, 7/11/12).
The discovery sought by Appellee was critical to determine Appellant’s
insurance
coverage
and
potential
damages.
Furthermore,
Appellant
continually refused to cooperate or respond to Appellee’s requests, attend
hearings, or comply with the trial court’s orders, despite being warned of the
consequences several times. Cf. Griffin, supra at 1024 (holding that trial
court abused discretion by imposing “severe sanction which precluded
appellant from offering any evidence at trial as to damages where there was
no prior order compelling the production of the documents relating to
damages”).
Therefore, where Appellant willfully and repeatedly failed to
participate in her own litigation by providing discovery in a timely manner,
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and hindered Appellee’s attempts to obtain the discovery, the trial court’s
eventual sanction was appropriate.
Accordingly, in light of the factors
outlined in Anthony Biddle Contrs., Inc., supra, the trial court did not
abuse its discretion in imposing sanctions that effectively terminated the
litigation. This issue is without merit.
Second, Appellant claims that “[t]he trial court erred in granting
[Appellee]’s Motion for Summary Judgment [because] there are triable
issues of material fact.” (Appellant’s Brief, at 12). We disagree.
An order granting summary judgment is subject to the following scope
and standard of appellate review:
[W]e are not bound by the trial court’s conclusions of law,
but may reach our own conclusions. In reviewing a grant of
summary judgment, the appellate court may disturb the trial
court’s order only upon an error of law or an abuse of discretion.
The scope of review is plenary and the appellate court applies
the same standard for summary judgment as the trial court.
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if, in
resolving the issue for decision, it misapplies the law or exercises
its discretion in a manner lacking reason.
Rohrer v. Pope, 918 A.2d 122, 126 (Pa. Super. 2007) (citations omitted).
Where a motion for summary judgment is based upon
insufficient evidence of facts, the adverse party must come
forward with evidence essential to preserve the cause of action.
If the non-moving party fails to come forward with sufficient
evidence to establish or contest a material issue to the case, the
moving party is entitled to judgment as a matter of law. The
non-moving party must adduce sufficient evidence on an issue
essential to its case and on which it bears the burden of proof
such that a jury could return a verdict favorable to the non-7-
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moving party. As with all summary judgment cases, the court
must examine the record in the light most favorable to the nonmoving party and resolve all doubts against the moving party as
to the existence of a triable issue.
Grandelli v. Methodist Hosp., 777 A.2d 1138, 1143-44 (Pa. Super. 2001)
(citations omitted).
Here, Appellant argues that “the trial court failed to even consider the
reasonableness, either in substance of the request or in the time the
production was to be made, of [Appellee]’s request” for her mother’s
insurance policy information.
(Appellant’s Brief, at 13).
However, this is
precisely the issue presented to the trial court in the series of discovery
motions filed by Appellee and resolved by the August 28, 2012 order
precluding Appellant from entering any evidence for failure to comply. (See,
e.g., [Appellant]’s Response to [Appellee]’s Motion for Summary Judgment,
10/26/12, at 3 ¶ 4 (“It is specifically denied that there is no genuine issue of
material
fact
in
dispute
since
[Appellant]
has
filed
a
Motion
for
Reconsideration of the court’s Order regarding preclusion.”)). This issue was
resolved by the trial court’s memorandum order of November 14, 2012.
(See Memorandum Order, 11/14/12, at 1).
Appellant raises no other
unresolved issues, and cannot make out a prima facie case where she has
been precluded from entering “evidence essential to preserve the cause of
action[.]”
Grandelli, supra at 1143.
Accordingly, the trial court did not
abuse its discretion in granting summary judgment in favor of Appellee.
See Rohrer, supra at 126. Appellant’s second issue is without merit.
Order affirmed.
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Donohue, J., files a Concurring Memorandum.
Judgment Entered.
Prothonotary
Date: 9/24/2013
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