Brotech Corp. v. Delmarva Chemicals, Inc.

DEL SOLE, P.J.

¶ 1 Brotech Corporation appeals from the trial court’s order granting summary judgment in favor of Appellees. Upon review, we reverse.

¶ 2 Brotech is a manufacturer of cation exchange resins which are used in the water treatment process. Caustic soda is an ingredient used in the manufacture of the resins. Appellees are vendors of caustic soda. Brotech purchased caustic soda from Appellees for use in manufacturing its products.

¶ 3 In 1998, Brotech’s customers began returning resins to Brotech, complaining that they were generating a musty odor which made the resins unacceptable for water purification purposes. Brotech investigated the complaints and determined that the cause of the odor was the presence of organic materials which it believed could only have been introduced by the caustic soda provided by Appellees. Bro-tech contacted Appellee Delmarva, notifying it of the problem and asking Delmarva to conduct its own investigation. Delmarva conducted its own investigation. Although there is some dispute regarding how much, the record indicates that Delmarva reclaimed at least some of the remaining caustic soda sold to Brotech.

¶ 4 Brotech has a policy of taking samples of the resins it ships to its customers and retaining these samples for two years. Additionally, any samples of resin returned from customers are stored with the retained resins for the same two-year period.

¶ 5 In August 1999, Brotech filed suit against Appellees for breach of contract and for breach of implied warranties. Brotech alleged that Appellees delivered contaminated or impure caustic soda, resulting in manufacturing and production difficulties and giving rise to damages. Appellees filed a motion for summary judgment based upon the spoliation of evidence doctrine.

¶ 6 Through discovery, Appellees requested that Brotech produce samples of the resins. Brotech advised Appellees that it no longer possessed the sample resins, based on its two-year retention policy. Subsequent to Appellees’ filing of their motion for summary judgment, Bro-tech discovered that it did indeed possess the pertinent resin samples. Brotech’s counsel notified Appellees of this discovery. Brotech filed a response in opposition to Appellees’ motion for summary judgment, and advised the court that the evidence Appellees were seeking was discovered.

¶ 7 Shortly thereafter the trial court granted the motion for summary judgment. Brotech filed its notice of appeal on November 11, 2001. On December 12, 2001, the trial court denied Brotech’s emergency motion for reconsideration. Pursuant to the court’s order, Brotech filed a concise statement of matters complained of on appeal.

¶ 8 On appeal, Appellant presents the following issues:

1. As a matter of law, does the doctrine of spoliation of evidence apply in actions where the evidence in question is available for testing and/or sampling by the moving party?

2. Can summary judgment be granted under the spoliation of evidence doctrine when the evidence upon which the motion is based is available for testing and/or sampling by the moving party?

3. As a matter of law, does the doctrine of spoliation of evidence apply in actions where the evidence in question is not the evidence which is alleged to be defective?

4. Can summary judgment be granted under the spoliation of evidence doctrine where the evidence upon which the motion is based is not the evidence which is alleged to be defective?

5. Was dismissal of the action, the harshest sanction possible, an appropriate sanction and/or remedy for Plaintiffs delayed discovery of the evidence?

Appellant’s Brief at 5.

¶ 9 We have held that:

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.... In determining whether to grant summary judgment a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Summary judgment may only be granted in cases where it is clear and free from doubt the moving party is entitled to judgment as a matter of law.

Piluso v. Cohen, 764 A.2d 549, 550 (Pa.Super.2000). On an appeal from a grant of summary judgment, a reviewing court must examine the record in a light most favorable to the nonmoving party, accepting as true all well-pleaded facts and giving that party the benefit of all reasonable inferences which can be drawn from those facts. Hoffman v. Brandywine Hosp., 443 Pa.Super. 245, 661 A.2d 397 (1995). The Superior Court will reverse a grant of summary judgment only when the trial court has committed an error of law or abused its discretion. Butterfield v. Giuntoli, 448 Pa.Super. 1, 670 A.2d 646 (1995).

¶ 10 Rule 1035.3 of the Pennsylvania Rules of Civil Procedure requires the non-moving party to file a response to a motion for summary judgment within thirty days after service of the motion. In this case, Appellant complied and filed its response to Appellees’ motion for summary judgment. In that response, Appellant stated that after an additional search the sought-after resins had been discovered. The trial court was required to consider this information.

¶ 11 In Gerrow v. John Royle & Sons, 572 Pa. 134, 813 A.2d 778 (2002), Gerrow sought damages for serious personal injuries. After the discovery deadline had passed, one of the Appellants filed a motion for summary judgment on the basis that Gerrow could not establish a prima facie case. 813 A.2d at 780. Gerrow filed a timely response which had attached several expert reports which were sufficient to make out a prima facie case. Id. The Supreme Court held that the reports could be considered and that Rule 1035.3 permitted supplementation of the record. Id. at 781-782. Thus, the Supreme Court ruled that summary judgment was inappropriate. Id.

¶ 12 In this case, Appellant stated in its response to Appellees’ motion for summary judgment that the resins at issue had been discovered. This additional evidence nullifies Appellees’ claim that there was spoliation of the evidence. The intent of summary judgment is not to eliminate meritorious claims that could be established by additional discovery or expert report. Id. at 781. Rule 1035.3 permits supplementation of the record. Id. Thus, this evidence should have been considered, in addition to other evidence of record, by the trial court. The trial court erred in disregarding this evidence and granting Appellees’ motion for summary judgment.

¶ 13 Moreover, dismissal of this case was not appropriate as a sanction. While Appellant’s counsel’s behavior may have been less than desirable throughout the process, a sanction based on the discovery violations would not have been appropriate. The trial court was not presented with a motion for sanctions. As our Supreme Court held in Wolloch v. Aiken, 572 Pa. 335, 815 A.2d 594 (2002), this case cannot be approached as a discovery sanctions case in the absence of a motion for sanctions. Thus, the matter could not have been properly dismissed on this ground.

¶ 14 Moreover, there was no spoliation of evidence in this case. The basis of Appellant’s claim is that Appellees provided it with defective caustic soda, and in so doing breached its contract and implied warranties. It appears from the record, including the report by Richard D. Ross, Appellees’ expert, that Appellees had the opportunity to and did indeed test the caustic soda and materials from Appellant’s tanks. Additionally, Appellees reclaimed at least some of the alleged defective caustic soda. Accordingly, Appellees had the opportunity to, and did in fact, investigate the claims and test the relevant substances.

¶ 15 The spoliation of evidence doctrine is intended to further the public policy of protecting defendants who may be unable to prepare a defense after the destruction or loss of an allegedly defective product. Schroeder v. DOT, 551 Pa. 243, 710 A.2d 23, 27 (1998). Appellees have gathered information and evidence supporting its position that the caustic soda was not contaminated. Thus, the lately discovered resins are irrelevant. The spoliation doctrine does not apply here. Viewing the evidence in the light most favorable to the Appellant, we find that Appellees were not entitled to judgment as a matter of law because there was no spoliation of the relevant evidence.¹

¶ 16 Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 17 KLEIN, J. files a dissenting opinion.

1 . Because our resolution of these issues results in disposition of the case, we need not determine the remaining issues raised by Appellant.