Frey, J. v. Gold, B. ( 2017 )

J-A16011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN R. FREY, H. ELAINE FREY, IN THE SUPERIOR COURT
ROBERT G. FREY, SUE FREY, JAMES OF
MILLER, AND ROBIN MILLER PENNSYLVANIA
v.
BONNY GOLD, DENNIS GOLD, SLURRY
TECHNOLOGIES OPERATING, LLC,
SLURRY TECHNOLOGIES OPERATING,
INC., PILGRIM ENERGY COMPANY,
PILGRIM COAL COMPANY, CHARLES
MUSE, A.C. MUSE, ENSUM
PARTNERSHIP NO. 2, SLURRY
TECHNOLOGIES, INC., AGGREGATE
SOLUTIONS, INC., ALBERT C.
MUSE/REPRESENTATIVE OF THE
ESTATE OF CHARLES H. MUSE, JR.,
DECEASED, ALBERT C.
MUSE/REPRESENTATIVE OF THE
ESTATE OF CHARLES HOWARD MUSE,
JR.
APPEAL OF: BONNY GOLD, DENNIS
No. 1158 WDA 2016
GOLD AND SLURRY TECHNOLOGIES
OPERATING, LLC
Appeal from the Judgment Entered July 6, 2016
In the Court of Common Pleas of Venango County
Civil Division at No: 2002-00232
BEFORE: , STABILE, J., FORD ELLIOTT, P.J.E. and STRASSBURGER,* J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 20, 2017
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A16011-17
Appellants, Bonny Gold, Dennis Gold, and Slurry Technologies
Operating, Inc (collectively, “Appellants”), appeal from the July 6, 2016
judgment in favor of Appellees John R. Frey, Elaine Frey, Robert G. Frey,
James Miller, and Robin Miller. We affirm.
The trial court’s opinion, which we quoted at length in the companion
case (1120 WDA 2016) sets forth the relevant facts and procedural history.
At this docket number, Appellants challenge the trial court’s discovery
sanctions. The trial court issued a series of sanctions against Appellants
during the course of this litigation, culminating in an order preventing
Appellants from contesting liability. As set forth at docket number 1120 of
2016, the jury returned a substantial award of damages in favor of Appellees.
Here, Appellants challenge several of the trial court’s pre-trial orders imposing
discovery sanctions.
In essence, Appellants argue that they consistently attempted to comply
with Appellees’ discovery requests; that certain documents were never in their
possession and that Appellees were aware of that fact; and that the trial
court’s various sanctions against them were excessive and not warranted
under applicable law. Before its final sanction—precluding Appellants from
contesting liability—the trial court conducted a lengthy hearing, after which it
rejected the factual bases for Appellants’ arguments. In particular, the trial
court found that the “Gold Defendants have attempted numerous times to
fabricate documents or utilize documents already in existence in order to
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J-A16011-17
prove they have purged themselves of contempt.” Trial Court Opinion,
10/7/16, at 21. In essence, the trial court concluded that Appellants were
dishonest, and that they led Appellees on a wild goose chase throughout years
of unnecessarily protracted discovery.
We recognize that appellate review of an order terminating litigation for
discovery sanctions is “stringent.” Cove Centre, Inc. v. Westhafer Const.,
Inc., 965 A.2d 259, 261 (Pa. Super. 2009).
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; 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.
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 together
with 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
(5) the importance of the precluded evidence in light of the
failure to comply.
Id.-3-
J-A16011-17
We have reviewed the record, the applicable law, the trial court’s
opinions and the parties’ briefs. We conclude that the trial court’s opinions of
October 7, 2016, at pages 27-35, and the trial court’s entire opinion of
November 26, 2012, thoroughly analyze the applicable law and the evidence
of record. We affirm the judgment on the basis of those opinions, and order
that a copy of each be filed along with this memorandum.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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Circulated 09/29/2017 02:37 PM
Circulated 09/29/2017 02:37 PM