Pollock, R. v. F&D Investors, LLP ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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., :
:
Appellee : 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, DUBOW, and STRASSBURGER,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED MARCH 19, 2018
I agree with the Majority that, pursuant to the factors outlined in City
of Philadelphia v. FOP Lodge No. 5 (Breary), 985 A.2d 1259 (Pa. 2009),
the trial court abused its discretion by discontinuing Appellant’s case with
prejudice. Majority Memorandum at 4-7. As the Majority explains,
discontinuance of the entire case was an extreme sanction not warranted by
the facts of this case.
Nevertheless, I write separately regarding two points. First, I would not
simply reverse the trial court’s order. Instead, I would vacate the order and
remand this matter to permit the trial court to consider whether a lesser
sanction may be appropriate. While the trial court abused its discretion by
discontinuing the action with prejudice, in my view, this does not mean that
*Retired Senior Judge assigned to the Superior Court.
J-A32023-17
Appellant should not be sanctioned at all. The trial court found that instead
of responding to discovery requests with an objection or obtaining a protective
order, Appellant simply ignored the requests. Trial Court Opinion, 7/6/2017,
at 4. Appellant did not contest this factual finding on appeal. Additionally,
part of the reason for the sanction was the failure of Appellant’s counsel to
appear for a status conference. Id. While outright dismissal is too severe,
other sanctions may be appropriate.1 See Bennett v. Home Depot U.S.A.,
Inc., 764 A.2d 605, 609 (Pa. Super. 2000) (reversing order which dismissed
action as sanction for counsel’s failure to appear at a pretrial conference and
remanding with instructions to impose appropriate sanctions short of
dismissal).
Second, I cannot join the Majority’s footnote regarding the effect of the
notice of appeal upon the trial court’s jurisdiction. See Majority Memorandum
at 3, n.3. The Majority states that because Appellant filed a notice of appeal
on May 30, 2017, the trial court was divested of jurisdiction over the instant
matter, rendering the trial court’s July 6, 2017 order denying Appellant’s
motion for reinstatement a legal nullity. Id. I agree with the Majority that
the July 6, 2017 order was a legal nullity, but the Majority’s statement is too
broad. The trial court discontinued the case with prejudice on May 5, 2017.
1 Indeed, Appellant even acknowledges that the trial court had the ability to
impose sanctions based upon counsel’s action or inaction. Appellant’s Brief at
27.
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On May 15, 2017, Appellant filed a motion to strike the discontinuance and to
reinstate the civil action. On May 30, 2017, Appellant filed a notice of appeal
from the order discontinuing the matter. On July 6, 2017, the trial court issued
an order denying Appellant’s motion.
Pa.R.A.P. 1701 prohibits a trial court from proceeding further in the
matter after an appeal is taken, but there are exceptions. Pa.R.A.P.
1701(“Except as otherwise prescribed by these rules, after an appeal is taken
…, the trial court may no longer proceed further in the matter.”). One of those
exceptions is set forth in Rule 1701(b)(3), which states in pertinent part the
following:
(b) Authority of a trial court or agency after appeal.—After an
appeal is taken or review of a quasijudicial order is sought, the
trial court or other government unit may:
(3) Grant reconsideration of the order which is the
subject of the appeal or petition, if:
(i) an application for reconsideration
of the order is filed in the trial court …
within the time provided or prescribed by
law; and
(ii) an order expressly granting
reconsideration of such prior order is filed
in the trial court … within the time
prescribed by these rules for the filing of
a notice of appeal …, or within any shorter
time provided or prescribed by law for the
granting of reconsideration.
Pa.R.A.P. 1701(b)(3).
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Here, Appellant’s May 15, 2017 motion, which was styled as a motion
to strike the discontinuance and to reinstate the civil action, sought
reconsideration of the trial court’s order to discontinue the action with
prejudice. Notwithstanding Appellant’s filing of a notice of appeal, because
Appellant’s May 15, 2017 motion was timely filed and akin to a motion for
reconsideration, the trial court could have ruled on the motion pursuant to
Rule 1701(b)(3) if the court had entered an order expressly granting
reconsideration within thirty days of its May 5, 2017 order discontinuing the
case. The trial court did not enter such an order. Therefore, it is misleading
to say simply that the notice of appeal divested the trial court of jurisdiction
regarding Appellant’s May 15, 2017 motion. Instead, the reason that the court
did not have jurisdiction to enter its July 6, 2017 order w as that, prior to
entering the order, it did not enter an order expressly granting reconsideration
within the timeframes set forth in Rule 1701(b)(3).
Accordingly, I would vacate the order discontinuing the action and
remand for imposition of appropriate sanctions short of dismissal.
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