Schmidt, R. v. LeBoon, S.

J-S65033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD G. SCHMIDT, M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN LEBOON AND CASSANDRA :
LEBOON :
:
:
APPEAL OF: STEVEN LEBOON : No. 50 EDA 2017
Appeal from the Order Entered December 12, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2013-00951
RICHARD G. SCHMIDT, M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN LEBOON AND CASSANDRA :
LEBOON :
:
:
APPEAL OF: CASSANDRA LEBOON : No. 55 EDA 2017
Appeal from the Order Entered December 12, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2013-00951
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 12, 2017
Steven LeBoon (“Steven”), pro se, appeals from the Order granting
the Motion to Strike Steven’s and Cassandra LeBoon’s (“Cassandra”)
(collectively “the LeBoons”) Trial Praecipes filed by Richard G. Schmidt, M.D.
J-S65033-17
(“Dr. Schmidt”). Cassandra, pro se, appeals from the same Order, which
granted the Motion for Sanctions filed by Dr. Schmidt.1 We affirm the Order
as to the ruling precluding the LeBoons from presenting any evidence in
opposition to Dr. Schmidt’s claims; and striking the LeBoons’ defenses under
Pennsylvania Rule of Civil Procedure 4019. We quash the remaining
appeals.
The trial court set forth the relevant underlying facts as follows:
In 2009, [Dr. Schmidt] was assigned to perform a medical
examination on [] Steven [] relating to a workers’ compensation
claim [Steven] had recently filed. [Dr. Schmidt] examined
[Steven] and submitted a report stating that [Steven’s] injuries
were not work-related.[2] [Steven] subsequently initiated suit
against [Dr. Schmidt] alleging that he suffered intentional
infliction of emotional distress and negligent infliction of
emotional distress as a result of [Dr. Schmidt’s] report. [Dr.
Schmidt filed preliminary objections in the nature of a demurrer.
The trial court sustained the preliminary objections, and
dismissed Steven’s complaint with prejudice.] In 2013, [Dr.
Schmidt] then filed this action for harassment and wrongful use
of civil proceedings alleging that [the LeBoons] harassed [Dr.
Schmidt], attempted to extort him and threatened to write a tell-
all book involving him.
____________________________________________
1 As noted above, the trial court entered a single Order disposing of various
Motions. Steven and Cassandra, individually, filed eight separate appeals
from the various dispositions. This Court dismissed six of the appeals and
consolidated the appeals at 50 and 55 EDA 2017. See Order, 3/13/17.
Furthermore, while Steven and Cassandra individually filed appeals from the
contents of the Order, they have filed a single brief encompassing the
entirety of the argument. Hence, we will address the parties and claims
together.
2 Despite Dr. Schmidt’s testimony, the Workers’ Compensation judge
granted Steven’s claim for benefits, and Steven elected to settle his claim for
a lump sum payment of $185,000.
-2-
J-S65033-17
On November 24, 2014, following a hearing, the [trial c]ourt
entered an Order disposing of several discovery-related
[M]otions. Specifically, the [trial c]ourt ordered [the LeBoons] to
provide responses to [Dr. Schmidt’s] Interrogatories and
Request for Production of Documents within ten days of the
Order. [The LeBoons] unsuccessfully appealed this Order to the
Pennsylvania Superior Court, followed by multiple motions for
reconsideration[]. [See Schmidt v. LeBoon, 134 A.3d 484 (Pa.
Super. 2015) (unpublished memorandum).] [The LeBoons’]
[P]etition for allowance of appeal nunc pro tunc to the
Pennsylvania Supreme Court was ultimately denied [by Order
dated] June 24, 2016. Thereafter, on July 1, 2016, [Dr.
Schmidt] sent a letter to [the LeBoons] requesting their
compliance with the November 24, 2014 Order.
On July 26, 2016, [Dr. Schmidt] filed a [M]otion for [C]ontempt
after receiving no response from [the LeBoons]. On August 31,
2016, [the LeBoons] failed to appear for the Motion for
Contempt hearing. By Order dated the same day, th[e trial
c]ourt found [the LeBoons] in contempt and directed [Dr.
Schmidt] to file a motion specifying the sanctions requested. On
September 8, 2016, [Dr. Schmidt] filed the Motion for Sanctions.
On September 23, 2016, [Dr. Schmidt] filed a Motion for Bench
Warrant against Steven Goldflam [(“Goldflam”)3] for his failure
to appear for deposition. On October 3, 2016, an [O]rder was
entered scheduling a hearing on the Motion for Sanctions and
Motion for Bench Warrant for October 12, 2016. Prior to the
hearing date, [Dr. Schmidt] requested the hearing be
continued[,] and a new hearing was scheduled for December 12,
2016. On November 14, 2016, [Dr. Schmidt] filed a [M]otion to
[S]trike and dismiss [the LeBoons’] [T]rial [P]raecipes. The
Court heard argument on [Dr. Schmidt’s] three [M]otions at the
December 12, 2016 hearing. [The LeBoons], again, failed to
appear for the hearing.
Following the hearing, the [trial c]ourt entered an [O]rder
granting [Dr. Schmidt’s] Motion for Sanctions, which included
ordering [the LeBoons] to fully and completely respond to the
____________________________________________
3 Goldflam is Steven’s bookkeeper.
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J-S65033-17
discovery that was the subject of the [trial c]ourt’s November
24, 2014 Order[,] and precluding [the LeBoons] from presenting
evidence in opposition to [Dr. Schmidt’s] claims. [The trial court
awarded Dr. Schmidt’s counsel $2,500.00 for expenses as a
discovery sanction.] The [trial c]ourt also granted in part and
denied in part [Dr. Schmidt’s] Motion for Issuance of a Bench
Warrant against [] Goldflam. The [trial c]ourt ordered []
Goldflam to produce [the LeBoons’] tax returns for the years
2007-2013 and any email correspondence in [] Goldflam’s
possession by and between [] Goldflam and [the LeBoons].
Finally, the [trial c]ourt granted [Dr. Schmidt’s] Motion to Strike
[the LeBoons’] Trial Praecipes. On December 16, 2016, [the
LeBoons] filed eight [N]otices of appeal to the Superior Court,
challenging various rulings contained in the December 12, 2016
Order.
Trial Court Opinion, 2/14/17, at 1-3 (unnumbered, footnotes added).
The trial court ordered the LeBoons to file a Pennsylvania Rule of
Appellate Procedure 1925(b) concise statement. The LeBoons filed a timely
Concise Statement.
On appeal, the LeBoons raise the following questions for our review:
1. Was it an abuse of discretion [granting] $2,500.00 [to Dr.
Schmidt’s attorney and directing the LeBoons] to deliver
answers to interrogatories within ten days[,] in person[,]
when [Dr. Schmidt’s a]ttorney knew that [there was] a [no]
trespass order in place executed on May 1, 2013[?] The
[LeBoons] had no other choice [but] to resend (twice) by US
Mail. The [LeBoons] respectfully request[] to vacate[.]
2. Was it an abuse of discretion to order contempt of court
charges to [] Goldflam, within ten days[,] in person[,] for a
second deposition? The [Pennsylvania] Supreme Court has
the pending appeal of allowance from [Steven] of the Brady
Law Doctrine [v]iolations[.] The [LeBoons] respectfully
request[] to vacate[.]
3. Should the court have vacated [Dr. Schmidt’s] sanctions
motions when [Dr. Schmidt] failed to appear in court on
October 12, 2016[,] and the [LeBoons] had no formal court
-4-
J-S65033-17
order to skip the hearing? The [LeBoons] respectfully
request to vacate due to [Dr. Schmidt’s] sanctions motion,
which nullifies the $2,500.00 sanction to [the LeBoons][.]
4. Did the [trial] court abuse its discretion by not compelling
[Dr. Schmidt] to provide emails and/or certificate[s] of
service[] that w[ere] filed in discovery court by [the
LeBoons,] and then sent over to [the Honorable Jeffrey]
Finley’s court by Judge [Gary] Gilman’s [court,] to review the
[M]otion demanding the evidence to be furnished to the
[LeBoons] proving that [Dr. Schmidt’s] sanctions [M]otion
were frivolous and baseless? The [LeBoons] respectfully
request[] to vacate[.]
5. Did the [trial] court abuse [the LeBoons’] 14th Amendment
rights of due process by striking [their] omnibus praecipes
(trial readiness), Supremacy Clause of U[nited States]
[Constitution], P[ennsylvania] Constitutional Article 1, Sec 6
& Article 1 Sec 26, to have [their] case heard before two
different jurys? The [LeBoons] respectfully request to vacate
and send cases to two trials. The [LeBoons] respectfully
request[] to vacate[.]
6. Did the [trial] court abuse [the Leboons’] 14th Amendment
rights of due process by denying [their] Motion to Dismiss
final/judgment on the pleadings without reviewing the sworn
testimony of [Dr. Schmidt] that the underlying case is not a
Dragonetti action case? The [LeBoons] respectfully request[]
to vacate.
7. Did the [trial] court abuse its discretion by keeping an illegal
case alive when it denied both Motion[s] to Dismiss
final/judgment on the pleadings by [the LeBoons,] and by
removing the trial readiness/omnibus praecipes? Is this
conflict by exhausting all civil stages within Pennsylvania Law
an illegal event created by the trial court by causing the case
to be in judicial limbo? The [LeBoons] respectfully request to
vacate and reverse the final/judgments on the pleadings[.]
Brief for Appellants at 13-14.
Initially, the LeBoons’ pro se brief is noncompliant with Pennsylvania
Rule of Appellate Procedure 2119(a), which requires that the “argument
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J-S65033-17
shall be divided into as many parts as there are questions to be argued[.]”
Pa.R.A.P. 2119(a). Rather, the LeBoons present seven questions to be
argued, but only a single, six-page argument. See Brief for Appellants at
24-29. Nevertheless, because the LeBoons are proceeding pro se, we will
address those claims that are discernible from their rambling argument.
See Branch Banking & Tr. v. Gesiorski, 904 A.2d 939, 942 (Pa. Super.
2006) (stating that “[w]hile this court is willing to liberally construe
materials filed by a pro se litigant, [the] appellant is not entitled to any
particular advantage because she lacks legal training. … [A]ny layperson[s]
choosing to represent [themselves] in a legal proceeding must, to some
reasonable extent, assume the risk that [their] lack of expertise and legal
training will prove [their] undoing.”) (citation omitted).
The LeBoons contend that their due process rights were violated by
the trial court’s actions. Brief for Appellant at 24. The LeBoons argue that
the sanctions should be reversed because Judge Finley refused to review any
of their objections or their replies and responses to the interrogatories. Id.
at 25, 26, 27; see also id. at 26 (wherein the LeBoons argue that they
complied with all court orders); id. at 25 (wherein the LeBoons point out
that they also filed a motion compelling Dr. Schmidt’s attorney to turn over
emails and certificates of service prior to the date that discovery concluded).
The LeBoons assert that they went to court to contest the Motion for
Sanctions, but Dr. Schmidt’s attorney failed to appear and the trial court did
-6-
J-S65033-17
not allow them to speak or present any legal objections. Id. at 25-26; see
also id. at 26 (wherein the LeBoons argue that the case is fraudulent and
that they have been unable to overcome various errors of law). The
LeBoons claim that Dr. Schmidt never sent a letter demanding misplaced or
missing interrogatories, but instead filed fraudulent claims of contempt. Id.
at 27-29; see also id. at 29 (wherein the LeBoons argue that Dr. Schmidt
acted maliciously and vindictively in filing the action).
Here, the trial court addressed the LeBoons’ various claims regarding
the December 12, 2016 Order in its Opinion. See Trial Court Opinion,
2/14/17, at 3-9 (unnumbered). Specifically, the trial court determined that
the LeBoons’ appeal as to the award of $2,500.00 to Dr. Schmidt’s counsel
as a sanction was an interlocutory appeal and not ripe for disposition. See
id. at 5 (unnumbered). The trial court also found that the appeal from the
grant of Dr. Schmidt’s Motion to Strike Trial Praecipes was not appealable
because it did not end the litigation. See id. (unnumbered).4
Additionally, with regard to the appeal concerning Dr. Schmidt’s
Motion for Sanctions, the trial court addressed its ruling precluding the
LeBoons from presenting any evidence in opposition to Dr. Schmidt’s claims
____________________________________________
4 The trial court also noted that in ruling upon Dr. Schmidt’s Motion to Strike
the Trial Praecipes, it found that the LeBoons failed to comply with Bucks
County Rule of Civil Procedure 261. See id. at 4-5 (unnumbered); see also
id. at 5 (unnumbered) (wherein the trial court indicated that the LeBoons
are free to file the trial praecipes following the completion of discovery).
-7-
J-S65033-17
and striking the LeBoons’ defenses under Civil Rule 4019. See id. at 5-8
(unnumbered). The trial court found this portion of the Order was
appealable, and determined that the LeBoons “acted with intentional
disregard for the discovery process,” by failing to comply with the November
24, 2014 discovery Order. See id. at 5, 8 (unnumbered). The trial court
stated that the LeBoons have not complied with the November 24, 2014
Order, have not provided an excuse for this failure, and have negatively
impacted Dr. Schmidt’s action by refusing to provide responses. See id. at
8 (unnumbered). The trial court further noted that it considered the
LeBoons’ response to the Motion for Sanctions, despite the LeBoons’ failure
to appear at the hearing, prior to entering its ruling. See id. at 8-9
(unnumbered). Thus, the trial court determined that the sanctions of
precluding the LeBoons from presenting evidence and striking their defenses
was necessary in light of their egregious discovery delays. See id. at 5-9
(unnumbered).
Following our review of the briefs and relevant legal authority, we
adopt the sound reasoning of the trial court for the purpose of this appeal,
and conclude that the LeBoons have not presented any arguments that
demonstrate that the trial court’s reasoning is flawed. See id. at 3-9
-8-
J-S65033-17
(unnumbered).5 Thus, we affirm the December 12, 2016 Order in part and
quash the remaining appeals.
Order affirmed in part. Remaining appeals quashed. Application for
Relief denied.6
____________________________________________
5 We note that the LeBoons do not comply with Pa.R.A.P. 2111(a)(9), which
requires a “short conclusion stating the precise relief sought.” Pa.R.A.P.
2111(a)(9). Instead, the LeBoons offer a conclusion that stretches over six
pages and includes arguments and citations to authority regarding referring
Dr. Schmidt’s conduct to the district attorney for criminal prosecution. Brief
for Appellants at 29-34. The LeBoons did not raise such an issue in the trial
court; thus, it is not properly before us on appeal. See Pa.R.A.P. 302(a). In
the Conclusion, the LeBoons also assert that the trial court’s direction to
Goldflam to produce their tax returns violates federal law. Brief for
Appellants at 33-34. The trial court determined that the portion of the Order
directing Goldflam to produce the tax returns was an interlocutory order and
not appealable. See Trial Court Opinion, 2/14/17, at 9 (unnumbered). The
LeBoons do not argue or demonstrate that this portion of the Order is an
appealable collateral order. See Gesiorski, 904 A.2d at 942–43 (stating
that “we decline to become the appellant’s counsel. When issues are not
properly raised and developed in briefs, when the briefs are wholly
inadequate to present specific issues for review[,] a Court will not consider
the merits thereof.”); see also Pa.R.A.P. 2119(a).
6 Dr. Schmidt has filed an Application for Relief, asking this Court to direct
the Court of Common Pleas of Bucks County to hold a hearing to determine
whether the LeBoons have perpetrated a fraud on the courts regarding their
petitions to proceed in forma pauperis. We decline to grant the Application
based upon the facts and evidence before this Court. Nevertheless, Dr.
Schmidt is free to file the Application before the court of common pleas to
seek a hearing on this matter.
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J-S65033-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
- 10 -
Circulated 11/15/2017 11:21 AM
IN THE COURT OF CO MON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL DIVISION
RICHARD G. SCHMIDT, N
OPTIC) AL
No. 2.0.11:00951__
V.
50 EDA 2017
51 EDA 2017
53 EDA 2017
STEVEN L. LEBOON & 54 EDA 2017 Case 2013 C0951
CASSANDRA LEBOON 55 EDA 2017 Code, 5214
P a moo L ea Judge32
R= 21710342 chtle. Bucks County
56 EDA 2017 2J1412017 12'16
Prothenotafy
20 Pm
57 EDA 2017
58 EDA 2017
OPINION
Steven LeBoon and Cassandra LeBoon (hereinafter
"Appellants") appeal pro se from this
Court's December 12, 2.016 Order granting Dr. Richard G.
Schtnidt's (hereinafter "Appellee")
Motion for Sanctions, Motion to Strike Appellants' Trial
Praecipes and Appellee's Motion for
Issuance of a Bench Warrant aga nst a third -party, Steven
Goldtlam, which was granted in part.
Although Appellants chose to f eight separate notices of
1
appeal related to the same Order, we
file one consolidated Opinion in upport of the Court's
Order, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a).
L FACTUAL AND ROCEDURAL HISTORY
In 2009, Appellee was ass gned to perform
a medical examination on Appellant Steven
LeBoon relating to a workers' col pensation claim
Appellant had recently filed. Appellee
examined Appellant and submitte a report stating that
Appellant's injuries were not work -
related. Appellant subsequently in tiated suit against
Appellee alleging that he suffered
intentional infliction of emotional distress and negligent
infliction of emotional distress as a
result of Appellee's report. In 201 Appellee then
filed this action for harassment and wrongful
use of civil proceedings alleging that Appellants, Steven LeBoon and his wife, Cassandra
LeBoon, harassed Appellee, attempted to extort him and threatened to write a tell -all book
involving him.
On November 24, 2014, following a hearing, this Court entered an Order
disposing of
several discovery -related motions. Specifically, the Court ordered Appellants to
provide
responses to Appellee's Interrogatories and Request for Production of
Documents within ten
days of the Order. Appellants unsuccessfully appealed this Order to the
Pennsylvania Superior
Court, followed by multiple motions for reconsiderations. Appellants'
petition for allowance of
appeal nunc pro tune to the Pennsylvania Supreme Court was ultimately
denied on June 24,
2016. Thereafter, on July 1, 2016, Appellee sent a letter to Appellants requesting their
compliance with the November 24, 2014 Order.
On July 26, 2016, Appellee filed a motion for contempt after
receiving no response from
Appellants. On August 31, 2016, Appellants failed to appear for the
Motion for Contempt
hearing. By Order dated the same day, this Court found Appellants in
contempt and directed
Appellee to file a motion specifying the sanctions requested. On September
8, 2016, Appellee
filed the Motion for Sanctions.
On September 23, 2016, Appellee filed a Motion for Bench
Warrant against Steven
Goldflam for his failure to appear for deposition. On October 3, 2016,
an order was entered
scheduling a hearing on the Motion for Sanctions and Motion for Bench
Warrant for October 12,
2016. Prior to the hearing date, Appellee requested the hearing
be continued and a new hearing
was scheduled for December 12, 2016. On November 14, 2016,
Appellee filed a motion to strike
and dismiss Appellants' trial praecipes. The Court heard
argument on Appellee's three motions
at the December 12, 2016 hearing. Appellants, again,
failed to appear for the hearing.
Following the hearing, the Court entered an order granting Appellee's Motion for
Sanctions, which included ordering Appellants to fully and completely respond to the
discovery
that was the subject of the Court's November 24, 2014 Order and
precluding Appellants from
presenting evidence in opposition to Appellees claims. The Court also granted in
part and
denied in part Appellee's Motion for Issuance of a Bench Warrant against
Steven Crolciflam. The
Court ordered Mr. Goldflam to produce Appellants' tax returns for the
years 2007-2013 and any
ernail correspondence in Mr. Goldflam's possession by and
between Mr. Goldflarn and
Appellants. Finally, the Court granted Appellee's Motion to Strike
Appellants' Trial Praecipes.
On December 16, 2016, Appellants tiled eight notices of appeal to
the Superior Court,
challenging various rulings contained in the December 12, 2016 Order.
H. STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
On January 30, 2017, in accordance with Pennsylvania Rule of
Appellate Procedure
1925(b), Appellants filed a joint Statement of Errors Complained of
on Appeal. In light of
Appellants' inclusion of two pages of previously -offered constitutional
arguments and in-depth
discussions of United States Supreme Court case law that this Court
and the Superior Court has
considered in Appellants' previous appeals, in the interest of brevity,
we have distilled
Appellants' allegations of error into the following issues:
1. The Court erred by failing to take Appellants' objections,
responses and replies to
Appellee's Motion for Sanctions into consideration; and
2 The Court violated Appellants' due process rights pursuant
to the Fourteenth
Amendment to the United States Constitution.
III. DISCUSSION
Appellants filed one Notice of Appeal for each ruling contained
in the December 12,
2016 Order. Each Notice of Appeal cites to
Pennsylvania Rule of Appellate Procedure 311 as the
basis for the appeal. We will first discuss whether the December 12, 2016 Order
is appropriately
appealable. We will then address the Court's reasoning for imposing sanctions
upon Appellants
and briefly discuss any applicable arguments asserted by
Appellants in their Statement of Errors.
An appeal is appropriate only if it is from a final order unless
otherwise permitted by
statute or rule. See Jenkins v. Hospital of Medical College of
Pennsylvania, 634 A.2d 1099, 1102
(Pa. 1993). A final order is one which "ends the litigation or,
alternatively, disposes of the entire
case." Fried v. Fried. 501 A.2d 211, 213 (Pa, 1985). Pennsylvania
Rule of Appellate Procedure
31 1 sets forth several specific circumstances where an interlocutory
order is appealable as of
right. See Pa.R.A.P. 311. The Rule further provides that an order
may be appealable if the order
is "made final or appealable by statute or general rule,
even though the order does not dispose of
all claims and of all parties." See Pa.R.A.P. 311(8).
Appellants' first Notice of Appeal relates to the Court's grant of Appellee's
Motion to
Strike Appellants' trial praecipes. This Court granted Appellee's
Motion because Appellants
failed to comply with Bucks County Rule of Civil Procedure 261
when filing their trial
praecipes. Bucks County Rule of Civil Procedure 261(a) requires all
trials by jury be ordered on
the trial list by praecipe. The trial praecipe shall contain
express certification by the filing party's
counsel that the case is at issue and ready for trial. See B.C.R.C.P.
26I(a). Prior to the filing of
this praecipe, counsel for the party intending to certify a
case for trial is required to serve a
certification notice upon opposing counsel. B.C.R.C.P. 261(b). Fifteen
days after service of the
certification notice, any party may then order the case on the trial list.
B,C.R.C.P. 261(b).
Appellants filed their trial praecipes on September 26, 2016. Appellants
certified the case
for trial and indicated that the certification notice was
effected on the same day. Accordingly, the
Court found that Appellants failed to provide the certification
notice to Appellee fifteen days in
advance of filing the trial praecipes, in violation of Bucks County Rule of Civil
Procedure
261(b)Additionally, Appellants certified that discovery is complete by signing the trial
praecipe
despite the fact that Appellants have yet to comply with this Court's
November 24, 2014 Order
directing Appellants to produce various outstanding discovery responses.
The Court therefore
ordered the trial praecipes be stricken from the docket. This ruling is
not appropriately
appealable, however, because striking the trial praecipes did not end the
litigation. Appellants are
free to file the trial praecipes again in accordance with the Bucks
County Rules of Civil
Procedure once discovery is complete.
Next, Appellants appeal the Court's award of counsel fees in favor of
Appellee, directing
Appellants to deliver a certified check in the amount of $2500 to Appellee's
counsel. Discovery
sanction orders are interlocutory and are not appealable until the
underlying case is completed.
See Baranowksi v. American Multi -Cinema, Inc., 688 A.,2d 207
(Pa. Super. Ct, 1997); Christian
v. Pennsylvania Financial Responsibility Assigned
Claims Plan, 686 A.2d 1 (Pa. Super. Ct.
1996). Specifically, courts in Pennsylvania have found that
orders awarding expenses as a
discovery sanction are interlocutory, See Triffin v, Janssen, 688 A.2d
1212 n. 2 (Pa. Super. Ct,
1997). Accordingly, appellate review of this Court's ruling awarding counsel fees in favor of
,Appellee as a discovery sanction is not yet ripe.
Next, Appellants appeal the remainder of this Court's ruling on
Appellee's Motion for
Sanctions, ordering Appellants to comply with the November 24,
2014 Order within ten days and
precluding Appellants from presenting evidence in opposition to
Appellee's claims and striking
Appellants' defenses with prejudice pursuant to Pennsylvania Rule of
Civil Procedure
4019(c)(2). This is the only ruling that this Court perceives as
arguably appealable.
A majority of Pennsylvania courts have held that a discovery sanction order
that excludes
evidence or defenses is an interlocutory order and therefore
unappealable.. See Bruno v, Elitzky,
526 A.2d 781 (Pa. 1987); Elderkin. Martin, Kelly, Messina &
Zamboldi v. Sedney, 511 A.2d 858(Pa. Super. Ct. 1986); McManus v. Chubb Group of
Ins. Cos., 493 A.2d 84 (Pa. Super. Ct.
1985), The Superior Court has traditionally held that
sanction orders are not appealable until the
conclusion of the case in the interest of avoiding multiple
"piecemeal" appeals. See, e.g., Fox v,
Gabler, 547 A.2d 399 (Pa. Super. Ct. 1988).
However, courts have also found that sanction orders are final
and properly appealable
when the sanction effectively puts the sanctioned party out of
court. See Weist v. Atlantic
Richfield Co., 543 A.2d 142 (Pa. Super. Ct. 1988); Kirsch v.
Parking Auth. of New Castle, 558
A.2d 930 (Pa. Commw. 1989). An order puts "a party 'out of
court' if it precludes proof of facts
at trial, which if determined in favor of the pleader, would provide him with a
complete defense
to the action." Zarnecki v. Sheamt, 532 A.2d 873, 874 (Pa. Super. Ct. 1987) (citing
Posternack
v. American Casualty Co. of Reading, 218 A.2d 350 (Pa. 1966)). The
court in Weist held that a
discovery sanction order that precluded appellant from presenting
witnesses was appealable
because it amounted to putting appellant out of court for all practical
purposes, as it precluded
appellant from presenting a defense. See Weist, 543 A.2d at 144,
n.5.
Here, this Court's Order precluded Appellants from presenting
defenses or presenting
evidence in opposition to Appellee's claims. The Order is similar
to the Weist order in that
precluding Appellant from presenting defenses or evidence in
opposition to Appellee's claims
likely puts Appellant "out of court" for all practical
purposes. Accordingly, this Court will treat
the Order --limited to the portion of the Order
striking Appellant's defenses and precluding
evidence --as properly appealable due to its similarity to
the Weist order and in the interest of
informing the Superior Court of the reasoning behind this Court's decision to
impose the
sanctions.
Pursuant to Pennsylvania Rule of Civil Procedure 4019, when a party fails to
permit
discovery, or fails to comply with a court order regarding, discovery, a
court, on motion, may
issue an order refusing to allow the disobedient party to support or
oppose claims or defenses or
prohibit the disobedient party from introducing evidence. See
Pa.R.C,P. 4019(a)(1)(viii),
4019(c)(2). The imposition of sanctions for failure to obey a discovery
order is within the sound
discretion of the trial court. See Feingold v. Philadelphia Nat'l Bank, 460
A.2d 339 (Pa. Super.
Ct. 1983), However, the court must fashion a sanction that
is appropriate when compared to the
violation of the discovery rules. See Steinfurth v. LaManna. 590
A.2d 1286 (Pa. Super. Ct.
1991). The trial court's order imposing a discovery sanction
will not be reversed unless the court
abused its discretion. See Croydon Plastics Co. v. Lower Bucks
Cooling & Heating, 698 A.2d
625 (Pa, Super. Ct. 1997). Abuse of discretion includes errors of
judgment as well as
misapplications of the law. See Racunas v. Ringgold Sc.h. Dist., 452' A.2d 917 (Pa. Commw.
1982).
In imposing discovery sanctions, the court must "strike a
balance between the procedural
need to move the case to a prompt disposition and the
substantive rights of the parties." Miller
Oral Surgery, Inc. v. Dinello. 611 A.2d 232, 234 (Pa. Super. Ct.
1992). The court must analyze
the disobedient party's failure to comply with discovery in
light of the prejudice caused to the
opposing party. See Brunetti v. Southeastern Pennsylvania Transp.
Authority, 478 A.2d 889 (Pa.
Super. Ct. 1984), "Whether the failure to provide information
represents a willful disregard of a
court order is also a factor to be considered." Miller Oral Surgery.
Inc., 611 A.2d at 234.
Appellants' failure to participate in the discovery process has caused delays in the
disposition of this case. Appellants have chosen to continuously disregard this Court's
November
24, 2014 discovery order for over two years. Appellants
unsuccessfully appealed the Order,
ultimately resulting in the Pennsylvania Supreme Court's rejection of
Appellant's nunc pro tune
appeal. Despite this, Appellants have yet to comply. Appellants have not
specifically addressed a
reason or excuse for their failure to comply with the Order.
Additionally, Appellants failed to
appear at the hearing on Appellee's Motion for Sanctions despite
receiving adequate notice.
Thus, this Court found that Appellants acted with intentional disregard for
the discovery process
and this Court's Order in refusing to provide the responses.
Appellants' failure to provide the discovery responses as ordered has
hampered
Appellee's ability to conduct depositions and proceed with discovery, Appellee
also expressed-
in his Motion for Sanctions and at the hearing on the Motion the negative impact Appellants'
refusal to provide responses has had on Appellee's overall ability to
properly pursue this action.
Accordingly, this Court was satisfied that sanctions were warranted and necessary
in light of the
prejudice Appellants' egregious delay in the discovery process and in
complying with this
Court's two -year-old Order has caused to Appellee.
Appellants' first allegation of en-or on appeal asserts that the Court failed to
consider
Appellants' responses to Appellee's Motion for Sanctions. Appellants cite
Pennsylvania Rule of
Appellate Procedure l 925(a)(4)(vi) in support of their argument.
Rule I 925(a)(4)(vi) provides
that where an appellant cannot readily discern the basis for
the judge's decision, the appellant
shall preface his statement of errors with an explanation as to
why his statement contains general
terms and that such a general statement cannot be grounds for
finding waiver. Appellants seem to
assert that this Rule requires the Court to offer an explanation
as to why we imposed sanctions
upon Appellants. However, this Rule merely serves to protect an
appellant from incidentally
waiving particular issues on appeal because the Court did not provide
reasoning to support a
decision. The Rule does not require a trial court to provide appellant
with an opinion or reasons
to support an order.
This Court received, read and considered Appellants' response to
Appellee's Motion for
Sanctions prior to the December 12, 2016 hearing. However,
Appellants failed to appear at the
hearing and therefore forfeited their chance to present argument to
the Court. Nonetheless, the
Court's ruling was made only after considering Appellee's Motion,
Appellee's argument, as well
as Appellants' response to Appellee's Motion for Sanctions.
Appellants' second allegation of error asserts that the Court violated
their due process
rights. Although Appellant fails to convey how the Court
has allegedly violated these rights, his
discussion of case law involving access to documents implies that
Appellants are referencing the
Court's Order requiring the production of Appellants' tax records. The
Court will therefore not
address this argument because, as discussed above, such a discovery
order is interlocutory and
not properly appealable at this time.
IV, CONCLu
For the foregoing reasons, this Court finds that the issues
of which Appellants have
complained in this appeal are without merit.
DATE :p7 BY THE COURT:
re'ffiey L. Finley, P.J.