Kinder, S. v. Heritage Lower Salford

J-A04003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHEN KINDER, SR. AND DEBRA IN THE SUPERIOR COURT OF
KINDER, PENNSYLVANIA
Appellants
v.
HERITAGE LOWER SALFORD LP,
HERITAGE-LEDERACH, L.P., HERITAGE
BUILDING GROUP, HERITAGE BUILDING
GROUP, INC., HBG LEDERACH, INC.,
HBG LOWER SALFORD, INC., HERITAGE
CONSTRUCTION CO., INC., HERITAGE
HOMES GROUP, HERITAGE HOME
GROUP, INC., HERITAGE RESIDENTIAL,
BENCHMARK REAL ESTATE COMPANY,
INC.,
Appellees
v.
EXTERIORS ASSOCIATES, INC.,
EXTERIORS, INC., BRADCO WICKES,
WICKES COMPANIES, INC., WICKES,
INC., WICKES LUMBER, BR WICKES,
INC., SUPERIOR PLASTERING, INC.,
PENTEL ENTERPRISES, INC., ADVENT
INTERNATIONAL CORPORATION,
Appellees
v.
WIRE LATHE, INC.,
No. 3813 EDA 2015
Appellee
Appeal from the Order Entered November 23, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 10-11441
J-A04003-17
BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: Filed May 30, 2017
Appellants, Stephen Kinder, Sr. and Debra Kinder, appeal from the
order granting summary judgment in favor of Appellees in this action
brought for breach of contract, breach of warranty, and violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law.1
We affirm.
The trial court summarized the procedural history of this case as
follows:
On April 30, 2010, [Appellants] filed suit against the
builder, Heritage, claiming that Heritage defectively constructed
their house at 870 Clubhouse Drive in the Lederach Golf Club
Development.1 More specifically, [Appellants] assert that
Heritage’s defective construction resulted in water intrusion
through the exterior stucco cladding and into the interior of their
home. The complaint likewise alleges that the Heritage
[Appellees] failed to properly, if at all, respond to warranty
claims and/or to perform necessary warranty work on the
[Appellants’] home. Finally, [Appellants] allege that the Heritage
[Appellees] failed to perform required remediation and repairs,
and failed to offer to reimburse [Appellants] for the cost of
remediation and/or necessary repairs done by [Appellants].
1
The Complaint names the following Heritage
entities as Defendants herein: Heritage-Lederach,
L.P; HBG Lederach, Inc.; Heritage-Lower Salford,
L.P.; HBG-Lower Salford, Inc.; Heritage Construction
Co[.], Inc; Heritage Building Group, Inc. t/d/b/a
Heritage Building Group; and, Benchmark Real
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
73 P.S. §§ 201-1-201-9.3.
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Estate Company, Inc. t/d/b/a Heritage Residential
(hereafter “Heritage Defendants”)[.]
The Heritage [Appellees] did not perform any of the actual
construction work on [Appellants’] home. Heritage utilized
subcontractors. As a result, Heritage then joined various
subcontractors as [a]dditional [d]efendants, who in turn, joined
their subcontractors. That is, Heritage joined Pentel Enterprises
(the framer); Superior Plastering, Inc. (stucco work);
Environmental Stoneworks, LLC (stone work) and Exteriors, Inc.
(the roofer) as [a]dditional [d]efendants. Additional
[d]efendant, Superior Plastering, Inc., then joined, Wire Lathe,
Inc. who was Superior’s subcontractor.
On October 17, 2011, the aforementioned [d]efendants
and [a]dditional [d]efendants performed a visual inspection of
[Appellants’] house. [However, a]dditional [d]efendant Wire
Lathe, Inc. had not yet been joined as a party to the lawsuit.
Consequently, it did not participate in the visual inspection.
In March of 2012, [Appellants], without notice to their
counselor [or] to [the] aforementioned [d]efendants, hired
remediation contractors and undertook remediation work on the
subject area, thereby destroying the very property at issue in
their lawsuit. [Appellants’] actions prevented [Appellees] from
performing a physical inspection of the property in order to
determine the true source/cause of the water infiltration, and
ultimately mount a defense and/or establish their cross-claims.
On October 8, 2015, after hearing and argument, the trial
court granted [Appellees’] Joint Motion Regarding Spoliation.2
2
On November 12, 2015, the trial court denied
[Appellants’] Motion for Reconsideration regarding
this ruling.
On November 23, 2015, after hearing and argument, the
trial court granted [Appellees’] Motion for Summary Judgment
based upon [Appellants’] inability to establish the elements of
their claims as a result of the previous spoliation sanction.
[Appellants] timely appealed the aforementioned rulings.
Trial Court Opinion, 6/2/16, at 1-3 (emphasis in original).
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Appellants present the following issue for our review:
Did the trial court abuse its discretion or err as a matter of
law by granting [Appellees’] Motion for Summary Judgment
when a less severe sanction was available in light of the
extensive information in [Appellees’] possession?
Appellants’ Brief at 4.
Appellants argue that the trial court abused its discretion in granting
Appellees’ motion in limine and barring Appellants from presenting evidence
at trial, which led to the eventual dismissal of the action by the granting of
summary judgment. Appellants’ Brief at 13-16. Appellants allege that all
parties have hundreds, if not thousands, of photographs of the property
taken when construction began until the present. Id. at 13. Appellants
contend that despite this information in the possession of Appellees, the trial
court imposed the most severe sanction that led to the dismissal of the
action. Id. Appellants believe that Appellees were or should have been
aware of the remediation efforts and that less extreme sanctions by the trial
court, such as a jury instruction on spoliation of evidence, were available.
Id. at 14. Further, Appellants claim the trial court disregarded “the
information in [Appellees’] possession” and assert that their “duty to
preserve evidence is not infinite.” Id. at 15. Appellants assert that the trial
court abused its discretion in light of the fact that they purchased the
residence in February of 2006, filed their complaint in April of 2010, and
after living with leaks in the home for years, did not begin remediation
efforts until 2012. Id. at 16.
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In reviewing matters of summary judgment, we are governed by the
following well-established principles:
Our scope of review of an order granting summary judgment is
plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record in
the light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party. Chenot v. A.P. Green
Services, Inc., 895 A.2d 55, 60-61 (Pa. Super. 2006) (citation
omitted).
Motions for summary judgment implicate the plaintiff’s
proof of the elements of his cause of action. Chenot, 895 A.2d
at 61 (citation omitted). Summary judgment is proper “if, after
the completion of discovery relevant to the motion, including the
production of expert reports, an adverse party who will bear the
burden of proof at trial has failed to produce evidence of facts
essential to the cause of action or defense which in a jury trial
would require the issues to be submitted to a jury.” Pa.R.C.P.
1035.2(2). In other words, “whenever there is no genuine issue
of any material fact as to a necessary element of the cause of
action or defense which could be established by additional
discovery or expert report,” Pa.R.C.P. 1035.2(1), and the
moving party is entitled to judgment as a matter of law,
summary judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to make
out a prima facie cause of action or defense. Chenot, 895 A.2d
at 61.
When reviewing a grant of summary judgment, we are not
bound by the trial court’s conclusions of law, but may reach our
own conclusions. Id. We will disturb the trial court’s order only
upon an error of law or an abuse of discretion. “Judicial
discretion requires action in conformity with law on facts and
circumstances before the trial court after hearing and
consideration.” Chenot, 895 A.2d at 61 (citation omitted).
Consequently, the court abuses its discretion if, in resolving the
issue for decision, it misapplies the law, exercises its discretion
in a manner lacking reason, or does not follow legal procedure.
Id. (citation omitted).
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Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge bears a
heavy burden. It is not sufficient to persuade the appellate court
that it might have reached a different conclusion if charged with
the duty imposed on the court below; it is necessary to go
further and show an abuse of the discretionary power. Chenot,
895 A.2d at 61 (citation omitted). An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied or the judgment exercised is
manifestly unreasonable or the result of partiality, prejudice,
bias or ill-will, as shown by the evidence or the record, discretion
is abused. Id. at 61-62 (citation omitted).
Continental Casualty Company v. Pro Machine, 916 A.2d 1111, 1115-
1116 (Pa. Super. 2007).
In addition, we are mindful of the following legal principles regarding a
review of spoliation of evidence. Our Supreme Court has explained that
“‘[s]poliation of evidence’ is the nonpreservation or significant alteration of
evidence for pending or future litigation.” Pyeritz v. Commonwealth, 32
A.3d 687, 692 (Pa. 2011) (footnote omitted).
When reviewing a court’s decision to grant or deny a
spoliation sanction, we must determine whether the court
abused its discretion. Croydon Plastics Co. v. Lower Bucks
Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (“the
decision whether to sanction a party, and if so the severity of
such sanction, is vested in the sound discretion of the trial
court”), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). “An
abuse of discretion is not merely an error in judgment; rather it
occurs when the law is overridden or misapplied, or when the
judgment exercised is manifestly unreasonable or the result of
partiality, prejudice, bias or ill-will.” Pilon v. Bally Eng’g
Structures, 435 Pa. Super. 227, 645 A.2d 282, 285, appeal
denied, 539 Pa. 680, 652 A.2d 1325 (1994).
Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d
1263, 1269 (Pa. Super. 2001).
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To determine the appropriate sanction for spoliation, the trial
court must weigh three factors:
(1) the degree of fault of the party who altered or
destroyed the evidence; (2) the degree of prejudice
suffered by the opposing party; and (3) whether
there is a lesser sanction that will avoid substantial
unfairness to the opposing party and, where the
offending party is seriously at fault, will serve to
deter such conduct by others in the future.
Mount Olivet, 781 A.2d at 1269-70 (quoting Schmid v.
Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)).[2]
In this context, evaluation of the first prong, “the fault of the
party who altered or destroyed the evidence,” requires
consideration of two components, the extent of the offending
party’s duty or responsibility to preserve the relevant evidence,
and the presence or absence of bad faith. See Mount Olivet,
781 A.2d at 1270. The duty prong, in turn, is established
where: “(1) the plaintiff knows that litigation against the
defendants is pending or likely; and (2) it is foreseeable that
discarding the evidence would be prejudicial to the defendants.”
Id. at 1270-71.
Creazzo v. Medtronic, Inc., 903 A.2d 24, 29 (Pa. Super. 2006)
(original brackets omitted).
PTSI, Inc. v. Haley, 71 A.3d 304, 316 (Pa. Super. 2013).
In Creazzo, this Court considered whether the trial court erred in
granting summary judgment in a products liability claim where the plaintiff
failed to produce the allegedly defective medical device due to loss by the
treating hospital. In affirming the trial court’s order, we determined that the
plaintiff bore responsibility for preservation of the device and that the fact
____________________________________________
2
The three-part spoliation test set forth in Schmid was adopted by our
Supreme Court in Schroeder v. Commonwealth, Department of
Transportation, 710 A.2d 23, 27 (Pa. 1998).
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that it was lost by a third party did not excuse that responsibility. Id. at 29-
30. Further, we concluded that failure to produce the device was prejudicial
to the defendant because the defendant’s expert did not have an opportunity
to examine it, and proof of a defect in the particular device used was
essential to the plaintiff’s claim. Id. at 30.
In the instant case, the trial court offered the following analysis, which
we adopt as our own:
The trial court correctly determined that [Appellants] were
largely at fault for destroying the evidence at issue. Case law is
clear that there is an affirmative duty on the part[] of a plaintiff
not to destroy the evidence which is the fundamental core of the
case in litigation. In addition, courts more readily attribute
blame for the destruction of evidence against a party who has an
attorney at the time of spoliation[.] Roselli v. General Elec. Co.,
599 A.2d 685 (Pa.Super. 1991); Tanaglia v. P&G, 737 A.2d 306(Pa.Super. 1991)[.]
In this regard, the record showed that [Appellants] had an
attorney and remediated a house which had been in active
litigation for two (2) years, without notifying [Appellees] or their
own attorney of the same. [Appellants] filed suit for water
damage in their home and then erased the destructed area prior
to the defense experts conducting a physical inspection so that
each could identify the cause/source of the subject water
infiltration, and present a defense. [Appellants] had a
duty/responsibility to preserve the very evidence that was the
subject of their lawsuit and [Appellants] violated that duty.
[Appellants’] counsel concedes as much with the following
exchange on the record:
MR. ONORATO: ... My clients remediated without
knowledge - without my knowledge ... This was a
four month remediation, Your Honor. ...
THE COURT: Okay. Did you let them[, Appellees,]
know this was going on at the time?
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MR. ONORATO: I had no knowledge?
THE COURT: So how could they[, Appellees,] have
gotten there? ...
THE COURT: Do you have any kind of affirmative
duty here to let them know?
MR. ONORATO: Your Honor, I believe if I had known
[Appellants] were doing that I would have certainly
given advance notice to [Appellees] that there was
going to be remediation going on. ...
(Notes of Testimony-Motions in Limine, 9/23/15, pgs. 29-30)[.]
In addition, the scheduled remediation was not an
oversight. [Appellants] did not remediate under emergency
circumstances. According to [Appellants], they had been living
in a home with water intrusion for approximately five (5) years.
Further, their lawsuit had also been active for two (2) years.
Thus, there was no justifiable reason for [Appellants] to
remediate the damaged area during litigation, and even less of a
justification to do so without notice to [Appellees]. (Notes of
Testimony-Motions in Limine, 9/23/15, p.12)[.]
Looking at the next element for spoliation, the trial court
was persuaded by the compelling prejudice arguments presented
by multiple [Appellees] in support of the Motion in Limine.
Counsel for [Appellee]/builder, Heritage, explained the prejudice
caused to his client as a result of the remediation,
MR. BYRON: ... [Appellants’] case is against
Heritage. Their contract is with Heritage. Heritage
made certain warranties, you know, but the thing is,
and it's an undisputable fact, Heritage itself didn’t lift
a hammer to build these houses. They were built by
subcontractors. So, Heritage has a legal right to put
the blame where it rests if it can get the evidence to
do that.
If there’s a water leak coming into the
kitchen, Heritage ought to be able to develop
the facts with its expert, if that evidence is
available, and in this case it’s not because
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[Appellants] destroyed it, and point to which
particular subcontractor was responsible for
that leak. It’s our right.
Heritage is the captain of the ship, that’s
right, but that doesn’t mean I can’t get
indemnification or contribution from the people
who actually did the work that caused the
leaks. ...
If I can’t prove which subcontractor it
was, then I’m stuck with liability that should
flow somewhere else if I had the evidence to
do that, but they destroyed the evidence.
(Notes of Testimony---Motions in Limine, 9/23/13, pgs. 37-38
and 39, emphasis added)[.]
Defense counsel for Additional [Appellee], Wire Lathe, Inc.,
further addressed the prejudice prong,
MR. WALSH: ... With regard to the prejudice, there
is severe prejudice in this case against not only my
client but the other defendants and additional
defendants in this case, Your Honor, because the
crux of the case is the failure or the alleged failure of
the exterior wall system to [Appellants’] house.
This is a stucco exterior cladding and the
argument is from [Appellants’] expert that the
exterior wall system essentially failed.
[Appellants’] expert, Mr. Wheatley, who is an
architect himself, does not specifically identify
the point of water intrusion into the house,
does not specifically identify what was wrong
or who did what wrong with regard to
construction of the house.
There is an acknowledgement from him
and I believe from Heritage expert, Mr.
Merkert, that in order to really identify the
source of the water infiltration and the failure
of the exterior wall system, you have to be
present during remediation. You have to be
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present when the stucco and the exterior
cladding of the house is removed so that you
can see the points of penetration, you can see
the actual water damage.
[Appellants] had made the argument that the
experts can rely on the photographs which were
taken during remediation, but I submit to the Court,
Your Honor, that that is not actual proof of what
went wrong with this exterior wall system. The
photographs were taken by [Appellants] themselves.
They were not even taken by an expert, and
bear in mind, Your Honor, that [Appellants] did
have an expert on board at the time that they
did the remediation, but their expert wasn’t
even present during remediation. I had
retained an expert to look at [Appellants’]
deposition, the photographs and I attached a
copy of Mr. Popolizios report. He’s a
professional engineer.
His opinion is basically that without the
opportunity to look at the actual underlayment
during the course of remediation that he was
unable to form an opinion within a reasonable
degree of certainty. The reason I attached that
report, Your Honor, is again to support our
position that there is significant prejudice with
regard to the spoliation.
(Notes of Testimony- Motions in Limine, 9/23/15, pgs. 6-9,
emphasis added)[.]
Defendant Superior Plastering’s counsel also described
[his] client’s prejudice,
MR. ANASTASIA: John Anastasia, Your Honor, on
behalf of defendant, Superior Plastering. We did the
actual cement work, however, the additional
defendant that we joined, Wire Lathe, who was our
subcontractor did all the wiring, all the paper, the tar
paper underneath, all the waterproofing, things of
that nature, and there’s a large dispute over, so to
speak, who is at fault for doing what. Were the
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windows properly installed, how did the various
levels overlap each other, was it appropriate, was it
inappropriate.
So I think Mr. Walsh articulated very well all of
the points that are relevant in terms of examining
the case law and the standards, but the reason I
wanted to speak on this issue of the sanction
and prejudice is because it’s a domino effect,
Your Honor.
If there’s no evidence permissible against
Mr. Walsh because of the conduct of [Appellant]
but I’m left standing in the case to defend
myself against the subcontractor who I have a
cross-claim against or a joinder claim against
saying I just brought in the concrete, you have
to contribute to the damages because you did
something wrong, well, how can I prove my
case? ...
So, in essence, all [Appellees] have been
deprived of the opportunity not only to defend
themselves from [Appellants’] claims, but, just
as importantly, if not more importantly,
establish and prosecute their claims against
each other and that is the critical fact.
(Notes or Testimony-Motions in Limine, 9/23/15, pgs. 15-17,
emphasis added)[.]
Mr. Taylor, counsel, for Defendant Pental Enterprises
likewise discussed the prejudice to [Appellees],
MR. TAYLOR: Your Honor, I’m William Taylor
representing Pentel Enterprises. They were the
rough carpenter and they installed the windows on
this job. I want to just kind of support and bolster
both Mr. Anastasia and Mr. Walsh’s argument.
You know, the mapping of water intrusion
into a building it really takes expert know how.
...
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Every expert involved in this case has said
in one way or the other that a visual inspection,
which was permitted with the parties and their
experts, will not adequately explain how this
water got into [Appellants’] home and which
component was at fault - which component of the
exterior facade was at fault; the stucco, the
windows, the roof.
The only way to be reasonably sure of the - of
how this water entered would be to allow the experts
to have this physical inspection when this
remediation took place when the stucco was
removed, the windows were removed, and that was
not, you know, obviously given us - we were not
given that opportunity.
So, it’s a critically important component
for any construction forensics exam to have
this physical exam. We just weren’t given the
opportunity. ...
(Notes of Testimony-Motions in Limine-9/23/15, pgs. 18-19,
emphasis added)[.]
Counsel Allison Perry discussed the prejudice to her client
Exterior Associates.
MS. PERRY: ... Another sort of trickle down
effect with -if this-if ... [Appellants are] allowed
to proceed with this claim is that they have
somebody - ... on their side who was there and,
you know, made personal firsthand
observations and the jury will hear that.
They’re going to hear from all of our experts,
oh, we relied on photographs, we relied on
documents, and that in and of itself is
prejudicial.
With regard to my client that did the roofing
and trim work, Mr. Campbell, who did the
remediation work and who will testify at trial, he’s
not a roofing contractor. He has no roofing
experience. He[’s] not an expert in roofing, yet
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he rendered certain opinions with regard to the
work of my client.
Mr. Wheatley, their expert, then adopts
those same opinions for the first time not
included in his three prior reports and it’s
anticipated that at trial he will offer those
opinions against my client.
We did not have the benefit of having
anybody from our side kind of there to look
firsthand in order to rebut those arguments.
(Notes of Testimony-Motions in Limine-9/23/15, pgs. 21-22)[.]
Finally, the trial court correctly determined that a lesser
sanction could not remedy the prejudice caused by [Appellants’]
spoliation of the evidence herein. [Appellees] needed to
physically inspect the affected area in order to identify the
source of the water intrusion and defend the claims against
them. [Appellants’] actions prevented such a physical
inspection. Further, [Appellants] argue that the trial court
should have continued the matter to have all experts do reports
based solely on the photographs taken by them. This stilted
option was clearly untenable, and would force [Appellees] to
defend [Appellants’] claims with evidence solely of [Appellants’]
choosing.
* * *
In the case at bar, [Appellants] had the burden of
establishing the source/cause of the water intrusion in order to
establish the elements of their claim. [Appellants’] own expert,
Mr. Wheatley, could not render an opinion as to which
[d]efendant or [a]dditional [d]efendant was responsible for the
alleged defects in the home. Moreover, once the court issued
its’ spoliation sanction, [Appellants] were precluded from offering
any such evidence against all [Appellees], thereby mandating
the entry of summary judgment.
As defense counsel for subcontractor Wire Lathe, Inc.,
aptly argued,
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MR. WALSH: So here we are. We’re at the eve of
trial and scheduled for trial at the end of this month
and based upon the evidentiary record that is now
before the [c]ourt, that being a record which is
devoid of any evidence to show a water intrusion
problem was caused by the action on the part of my
client, and, in fact, on the part of any of the
defendants or additional defendants, that
[Appellants] did not meet [their] burden of proof at
trial. [They] did not establish a prima facie case.
If you look at the commentary notes to
1035.2, it’s almost a burden shift at that point in
time. When we raised that argument in the context
of a Motion for Summary Judgment, the burden then
shifts to the party opposing the motion to put forth
some sort of evidence for an evidentiary record that
they can, in fact, prevail at trial in putting forth a
prima facie case that they could survive essentially a
nonsuit at trial.
Based upon the record, again, that's been
produced – I’m not sure if you want to give
[Appellants’] counsel some additional time - but I
think his admission in court today is that he really
doesn’t have much of anything left in this case once
you take out the water intrusion issue. ...
Based upon the [c]ourt’s spoliation ruling that
there could be no evidence of water intrusion as to
any defendant or additional defendant, there’s really
nothing left of the case at that point. ...
(Notes of Testimony 11/10/15, pgs. 38-39 and 40)[.]
And, indeed, [Appellants’] counsel conceded, on the
record, that there were no outstanding claims remaining.
MR. ONARATO: We responded previously, Your
Honor. I mean, if you are to reinstate your Orders
or issue your Orders on spoliation, then I think for
the most part our case is done. Again, if you like,
we can assess that and get back to you on that
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issue, but I think that that will cut the guts out of
ninety-five percent of the case.
THE COURT: How about I give you a week to let me
know if there’s anything else outstanding for some
reason.
MR. ONARATO: Okay. Thank you. We appreciate
the opportunity.
(Notes of Testimony-Motion for Reconsideration/Summary
Judgment 11/10/15, pg. 41)[.]
Despite an extended opportunity to do so, [Appellants] were
ultimately unable to present outstanding claims/questions of fact
thereby making the entry of summary judgment proper herein.
Trial Court Opinion, 6/2/16, at 5-13 (emphases in original, footnote
omitted).
Indeed, it was Appellants’ responsibility to preserve the areas of the
alleged defects, and this responsibility was not relieved because of the lapse
of time from the building of the home to the remediation. Further, the
failure to preserve evidence was highly prejudicial to Appellees because the
claim required inspection of the particular areas of water intrusion during
remediation. Hence, the proper barring of evidence resulted in Appellants
being unable to sustain their claims against Appellees. Accordingly, the trial
court did not err in granting summary judgment.
To the extent Appellants claim that Appellees should have moved for
sanctions before seeking summary judgment, we observe that Appellees
moved for summary judgment pursuant to Pa.R.C.P. 1035.2. The Rules of
Civil Procedure do not require a motion for sanctions before summary
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judgment is sought. See Wolloch v. Aiken, 815 A.2d 594, 597-598 (Pa.
2002) (distinguishing discovery sanctions from summary judgment). Thus,
no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2017
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