Aguilar, J. v. Sicinski, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JONATHAN RAMIREZ-AGUILAR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EDWARD SICINSKI : No. 1476 EDA 2020
Appeal from the Order Entered June 24, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190500907
JONATHAN RAMIREZ-AGUILAR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EDWARD SICINSKI : No. 1477 EDA 2020
Appeal from the Order Entered June 22, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 190500907
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: September 9, 2021
Jonathan Ramirez-Aguilar filed a notice of appeal from the trial court’s
June 22, 2020 order denying his motion to vacate the preclusion order entered
by the court as a sanction for discovery violations in the personal injury action
he initiated against Edward Sicinski. Ramirez-Aguilar also filed a separate
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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notice of appeal challenging the June 24, 2020 order, issued by a different
trial court, which granted Sicinski’s motion for summary judgment. This Court
sua sponte consolidated the appeals, and we now affirm both orders being
appealed.
On May 10, 2019, Ramirez-Aguilar filed a complaint against Sicinski
seeking damages from a motor vehicle accident between the two in 2017. An
arbitration date was set for February 24, 2020. In June of 2019, Sicinski sent
Ramirez-Aguilar Interrogatories and Requests for Production of Documents.
Ramirez-Aguilar did not respond and, on October 4, 2019, Sicinski filed
a motion to compel responses to his Interrogatories and Requests for
Production. Ramirez-Aguilar did not contest the motion, and the Honorable
Lori Dumas granted the motion and ordered Ramirez-Aguilar to file responses
within 20 days of the order. Ramirez-Aguilar did not comply, leading Sicinski
to file a motion for sanctions on December 5, 2019. A hearing on the motion
was scheduled for December 19, 2019. One day before the hearing, Ramirez-
Aguilar served his responses to Sicinski’s interrogatories, as well as “all
discoverable documents in [Ramirez-Aguilar]’s possession” at the time.
Sicinski nonetheless indicated his intention to pursue his motion for
sanctions, as Ramirez-Aguilar had only provided him medical documents from
the EMS and the hospital, and not with any records from Ramirez-Aguilar’s
post-accident treating physician. The parties agreed that Ramirez-Aguilar
would be allowed 30 additional days to fully respond to Sicinski’s requests and
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that if he again failed to comply, Sicinski could seek the preclusion of evidence
upon further application to the court. The Honorable Lisette Shirdan-Harris
entered an order to this effect on December 20, 2019.
Ramirez-Aguilar once again did not comply with the order. In response,
Sicinski filed a motion for sanctions on February 12, 2020, seeking to preclude
Ramirez-Aguilar from testifying and presenting evidence at arbitration/trial.1
Judge Shirdan-Harris scheduled a hearing on the matter for February 27,
2020, but Ramirez-Aguilar failed to appear at the hearing or otherwise
respond to the motion. Judge Shirdan-Harris therefore granted, as
uncontested, Sicinski’s motion to preclude Ramirez-Aguilar from presenting
evidence in an order filed on February 28, 2020 (“preclusion order”).
On March 5, 2020, Sicinski filed a motion for summary judgment, which
was assigned to the Honorable Paula Patrick. Over two and one-half months
later, Ramirez-Aguilar filed an untimely opposition to the summary judgment
motion. At the same time, he also filed a motion to vacate Judge Shirdan-
Harris’s preclusion order. Judge Shirdan-Harris denied Ramirez-Aguilar’s
motion to vacate in an order entered on June 22, 2020. Judge Patrick, in turn,
granted Sicinski’s motion for summary judgment on June 24, 2020.
____________________________________________
1 On the same date, Sicinski also filed an application to continue the
arbitration, which the court granted and set a new arbitration hearing date of
April 24, 2020.
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Ramirez-Aguilar filed a notice of appeal from Judge Shirdan-Harris’s
order denying his motion to vacate the preclusion order and a separate notice
of appeal from Judge Patrick’s order granting Sicinski’s motion for summary
judgment. Ramirez-Aguilar filed identical Pa.R.A.P. 1925(b) statements of
errors complained of on appeal in each matter, and then identical amended
statements in which he raised the following two issues:
1. The Trial Court committed an error of law and abused its
discretion by granting [Sicinski’s] Motion for Summary Judgment,
when it ignored the evidence that granting summary judgment on
the basis of previously precluded evidence was improper when
[Ramirez-Aguilar] provided responses to discovery, and filed a
Motion to Vacate the preclusion order entered by this Court.
2. The Trial Court committed an error of law and abused its
discretion by denying [Ramirez-Aguilar’s] Motion to Vacate
Preclusion, when it ignored the evidence that [Ramirez-Aguilar]
had a good-faith basis to vacate the preclusion order in this
matter.
Amended Concise Statement of Matters Complained of Upon Appeal Pursuant
to Pa.R[.]A[.]P[.] 1925(b), 7/22/20.
In response, both Judge Shirdan-Harris and Judge Patrick issued
Pa.R.A.P. 1925(a) opinions. Judge Patrick opined that she had properly
granted Sicinski’s motion for summary judgment because Judge Shirdan-
Harris had denied the motion to vacate the preclusion order, which prevented
Ramirez-Aguilar from presenting any evidence or testimony in furtherance of
his case. By virtue of this order, Judge Patrick reasoned, Ramirez-Aguilar was
unable to prove the elements of his cause of action, and Sicinski had therefore
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shown that there was no genuine issue of any material fact as to the necessary
elements of that cause of action, entitling him to summary judgment. See
Pa.R.C.P. 1035.2. In relation to Ramirez-Aguilar’s second issue, Judge Patrick
concluded that she did not have jurisdiction over the motion to vacate the
preclusion order as that had been assigned to, and considered by, Judge
Shirdan-Harris.
In her 1925(a) opinion, Judge Shirdan-Harris similarly noted that she
did not have jurisdiction over the summary judgment motion as that had been
considered by Judge Patrick. Further, Judge Shirdan-Harris concluded that the
preclusion of evidence had been a proper remedy for Ramirez-Aguilar’s
multiple discovery violations, which had been “significant”. Trial Court
Opinion, 9/22/20, at 5 (unpaginated). As noted above, this Court sua sponte
consolidated the two matters for appeal.
Ramirez-Aguilar first challenges Judge Shirdan-Harris’s order denying
his motion to vacate the preclusion order. He contends that the court
improperly entered the preclusion order because he responded to discovery -
albeit “not in its entirety” - before Sicinski moved for preclusion, and because
there was no evidence of bad faith on his part or any prejudice suffered by
Sicinski that was not capable of being cured. Appellant’s Brief at 9. This claim
does not provide Ramirez-Aguilar with any basis for relief.
Under Rule 4019 of the Rules of Civil Procedure, a trial court may “make
an appropriate order” if a party “fails to make discovery or to obey an order
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of court respecting discovery.” Pa.R.C.P. 4019(a)(1)(viii). The decision of
whether to sanction a party for such discovery violations, and the severity of
any sanction imposed, is vested in the discretion of the trial court. See
Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d
625, 629 (Pa. Super. 1997). This Court will not reverse a trial court’s order
sanctioning a party unless we find that the trial court abused its discretion in
imposing a particular sanction. See id.The most severe sanction a trial court can impose for discovery
violations is dismissing an action outright, or entering an order which is
tantamount to dismissal in that it leads to summary judgment being entered
against the sanctioned party. See id. Given the severity of the sanction, a
trial court should “dismiss only where the violation of the discovery rules is
willful and the opposing party has been prejudiced.” Id. (citation omitted).
When deciding whether dismissal of a cause of action is the appropriate
sanction for discovery violations, the trial court should consider the following
factors: (1) the nature and severity of the violation; (2) the willfulness or bad
faith of the noncomplying party; 3) the prejudice to the opposing party; 4)
the ability to cure prejudice; and 5) the importance of the precluded evidence
in light of the failure to comply with the discovery orders. See id.Here, Judge Shirdan-Harris thoroughly considered each of these five
factors. Judge Shirdan-Harris first noted that the nature and severity of
Ramirez-Aguilar’s discovery violations was significant in that he did not
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produce initial responses until the day prior to a hearing on Sicinski’s motion
for sanctions stemming from Ramirez-Aguilar’s violation of the court’s first
order to compel. And even then, Judge Shirdan-Harris noted, Ramirez-Aguilar
did not produce “crucial records” from his treating physician following the
accident, although he had had six months from the initial discovery requests
in which to obtain those records. Trial Court Opinion, 9/22/20, at 6
(unpaginated).
Judge Shirdan-Harris also found that Ramirez-Aguilar acted willfully and
in bad faith regarding his failure to comply with discovery requests and orders.
To that end, Judge Shirdan-Harris stated:
[Ramirez-Aguilar] appears to have engaged in a considerably
negligent approach to discovery and engaged in repeated
discovery violations over the course of a year. Requests for even
initial responsive discovery were ignored until [Sicinski] was
forced to seek the intervention of this Court for the second time.
Further, when [Ramirez-Aguilar] missed the deadline set in the
December 2019 Sanctions Order that he had agreed to for
supplemental discovery (which the agreed upon order also
included leave for [Sicinski] to move for preclusion), [Ramirez-
Aguilar] did not seek relief in the form of a motion for
extraordinary relief to extend discovery. [Ramirez-Aguilar]
instead failed to attend the hearing date for the Motion for
Sanctions for Preclusion and waited nearly three months to file his
Motion to Vacate. Moreover, at no point prior to this Court’s grant
of summary judgment - over a year after the initiation of this
matter - did [Ramirez-Aguilar] actually produce the medical
records critical to this case.
Id. (emphasis in original).
Judge Shirdan-Harris also found that Sicinski had been prejudiced by
Ramirez-Aguilar’s discovery violations, noting that Ramirez-Aguilar’s
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noncompliance left Sicinski in the position of trying to contest damages
without the relevant medical records. The Judge pointed out that this prejudice
could not be cured without Ramirez-Aguilar’s compliance. Lastly, Judge
Shirdan-Harris characterized the importance of the evidence of the treating
physician’s records as “enormous.” Id. at 7 (unpaginated). Without this
information, Judge Shirdan-Harris explained, Sicinski was unable to prepare a
defense, engage in settlement negotiations, or form a theory of his case.
Instead, the Judge found that Sicinski was forced to guess about critical
aspects of the case, such as Ramirez-Aguilar’s injuries and the alleged extent
of damages.
Weighing all of these factors, Judge Shirdan-Harris made the following
conclusion:
[Ramirez-Aguilar] failed to engage in meaningful discovery and
now claims that he should be permitted to benefit from his failure
to engage in good faith discovery or cure his default by presenting
evidence at trial that he failed to produce. The Court cannot permit
a [p]laintiff to disobey the multiple deadlines set by the Court, and
avoid the clear consequences that are laid out for a failure to
comply. For all the factors considered, particularly the willful
failure to correct deficiencies, the Court did not abuse its discretion
in precluding [Ramirez-Aguilar] from presenting evidence.
Id.
We agree that there was no abuse of discretion on the part of the trial
court in entering the preclusion order. In arguing otherwise, Ramirez-Aguilar
asserts that his failure to provide discovery did not rise to the level of bad
faith because it resulted from his own inability to obtain the medical records
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from his treating physician. As Sicinski points out, however, Ramirez-Aguilar
does not attempt to explain why he is raising this excuse for the first time on
appeal rather than doing so at the hearing regarding Sicinski’s motion to
preclude, which he failed to attend.
In any event, in support of his argument, Ramirez-Aguilar summarily
cites to City of Philadelphia v. Fraternal Order of Police Lodge No. 5
(Breary), 985 A.2d 1259, 1272 (Pa. 2009), for the proposition that a plaintiff
does not act in bad faith where his noncompliance with a subpoena resulted
from a “clerical error” and the plaintiff produced the subpoenaed documents
once he learned of the inadvertent failure to comply. The circumstances here
are entirely different. Ramirez-Aguilar does not allege that he failed to produce
the records from his treating physician because of any kind of clerical error.
And, unlike the noncomplying party in Fraternal Order of Police Lodge No.
5, Ramirez-Aguilar has yet to produce the documents in question. As such,
his reliance on Fraternal Order of Police Lodge No. 5 is misplaced.
Ramirez-Aguilar also contends that any prejudice suffered by Sicinski is
“hardly incurable” as Ramirez-Aguilar could, upon remand, simply either
provide the missing records or confirm that they do not exist. Appellant’s Brief
at 14. Notably, Ramirez-Aguilar does not explain why he should be allowed to
take either of these actions now after repeatedly failing to do so when faced
with the discovery orders compelling him to comply with the discovery
requests and after the set arbitration date has already passed.
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Instead, Ramirez-Aguilar argues that his case is similar to this Court’s
unpublished memorandum in Davis v. Showell, 3806 EDA 2015, 159 A.3d
1005 (Pa. Super. 2016) (unpublished memorandum). In the first place, absent
certain circumstances not present here, an unpublished Superior Court
memorandum decision filed prior to May 2, 2019 may not be “relied upon or
cited by a Court or a party in any other action or proceeding.” Coleman v.
Wyeth Pharm., Inc., 6 A.3d 502, 522 n.11 (Pa. Super. 2010) (citations and
quotation marks omitted); Superior Court IOP § 65.37(B). Further, even if it
were proper to rely upon this case, an unpublished memorandum decision
filed prior to May 2, 2019 carries no precedential or persuasive value. See
Commonwealth v. Finnecy, 249 A.3d 903, 910 n.9 (Pa. 2021);
Commonwealth v. Phinn, 761 A.2d 176, 179 (Pa. Super. 2000).
Even if it did, Davis involved different circumstances from those
presented here. The Davis panel did find, as Ramirez-Aguilar points out, that
the trial court “in this case” abused its discretion by dismissing the plaintiff’s
case as a sanction for her discovery violation. See id. at 7 (emphasis in
original). However, in doing so, the Davis panel noted that the discovery
violation underlying the dismissal sanction was the plaintiff’s first and did not
result from any bad faith on the part of the plaintiff but rather, resulted from
an administrative oversight. Moreover, the panel noted that the plaintiff
eventually turned over 250 pages of discovery which the panel could not say
was an incomplete response to the discovery request.
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Here, in contrast, Judge Shirdan-Harris specifically noted that Ramirez-
Aguilar had violated multiple discovery deadlines and, again, Ramirez-Aguilar
does not allege that his failure to comply with discovery resulted from any
kind of administrative oversight. In addition, Ramirez-Aguilar concedes he has
not turned over his treating physician’s records. Therefore, even if Davis was
binding authority, Ramirez-Aguilar has failed to demonstrate how Davis
compels the conclusion that the court abused its discretion by entering the
preclusion order here.
Because Ramirez-Aguilar has not shown that Judge Shirdan-Harris
abused her discretion by precluding him from introducing evidence at
arbitration because of his discovery violations, he likewise has not shown that
the judge abused her discretion by denying his motion to vacate that
preclusion order. As such, we affirm the order denying the motion to vacate.
See Croydon Plastics Co., Inc., 698 A.2d at 629.
Next, Ramirez-Aguilar claims that Judge Patrick abused her discretion
by entering an order granting Sicinski’s motion for summary judgment. His
entire argument stems from his contention that this order must be “vacated,
as it was rendered in reliance upon [Judge Shirdan-Harris]’s erroneous denial
of [his] Motion to Vacate.” Appellant’s Brief at 18. As we have already
determined that Judge Shirdan-Harris did not abuse her discretion in denying
Ramirez-Aguilar’s motion to vacate the preclusion order, we likewise reject
Ramirez-Aguilar’s piggy-backed claim that summary judgment was improperly
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granted on the basis of that motion. Simply put, the preclusion order
precluded Ramirez-Aguilar from presenting evidence and testimony in
furtherance of his case at arbitration. As a result, we agree with Judge Patrick
that Sicinski demonstrated that there was no genuine issue of material fact
regarding the elements of the cause of action and that he was therefore
entitled to summary judgment as a matter of law. See First Wisconsin Trust
Co. v. Strausser, 653 A.2d 688, 691 (Pa. Super. 1995) (stating that
summary judgment is properly granted when there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of
law).
The June 22, 2020 order denying the motion to vacate the preclusion
order is affirmed. The June 24, 2020 order granting the motion for summary
judgment is also affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/21
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