Coleman, S. v. Mahamoud, H.

J-A27019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHARON COLEMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HANY MAHMOUD : No. 917 EDA 2019
Appeal from the Order Entered February 26, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2016-22259
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 18, 2020
Sharon Coleman (“Appellant”) challenges the trial court orders entered
on September 18, 2018 (order granting Hany Mahmoud’s (“Appellee”) motion
for sanctions and preclusion), September 20, 2018 (amended order granting
Appellee’s motion for sanctions), and February 7, 2019 (order granting
Appellee’s motion for nonsuit and entering judgment for Appellee). These
orders became appealable on February 26, 2019, when the trial court entered
an order denying Appellant’s post-trial motion to strike the judgment of non-
suit. See Murphy v. International Druidic Society, 152 A.3d 286, 289
(Pa. Super. 2016) (the entry of compulsory nonsuit is not immediately
appealable; “rather the appeal lies from the trial court’s denial of the motion
to remove the non-suit.”). After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
J-A27019-19
The trial court recounted the procedural history, as follows:
In this case, on September 8, 2016[, Appellant] filed a
complaint alleging [Appellee] was negligent while driving and
caused a car accident that seriously injured [Appellant]. See
Docket Entry 0. [Appellee] filed an Answer and New Matter on
December 9, 2016, and [Appellant] filed her Reply to New Matter
on December 13, 2016. See Docket Entry 6; 8. A Motion to
Compel was filed on January 31, 2018[,] which was subsequently
granted although [Appellant] had complied with the request prior
to the [c]ourt Order thus rendering the issue moot. See Docket
Entry 10; 14. A Case Management Conference was scheduled,
and the [c]ourt entered an Order directing discovery to be
complete by July 13, 2018, and warned counsel that “[f]urther
discovery shall not be permitted without leave of [c]ourt and
except upon showing of extraordinary circumstances. The failure
to strictly comply with the provisions of this Order may result in
the imposition of sanctions including, but not limited to[,] an
Order of Preclusion or Non-Pros.” See Order J. Rogers 5/18/18.
On July 27, 2018, [Appellee] filed a Motion for Sanctions. See
Docket Entry 20. Thereafter, the [c]ourt held a hearing on the
motion, and then ordered the parties to submit briefs on the
matter. On September 18, 2018, Senior Judge Bertin granted the
Motion for Sanctions and precluded [Appellant] from testifying or
presenting any evidence as a sanction for her discovery violations.
See Order SJ Bertin 9/18/[18], amended 9/20/18. On October 2,
2018, [Appellant] filed a Motion for Reconsideration and an
Application for Amendment of the interlocutory order certifying
the orders for appeal to the Superior Court.[1] In response, the
[c]ourt vacated its Order pending reconsideration. See Order SJ
Bertin 10/5/18. Then, on October 26, 2018, the [c]ourt denied
reconsideration, and reinstated the sanction Order. See Order SJ
Bertin 10/26/18. This case was scheduled for a bench trial, and
as a result of the preclusion order, [Appellant] failed to present
evidence which could prove [her] case, and this [c]ourt granted
[Appellee’s] oral Motion for Non-Suit. See Order J. Page 2/7/19.
Subsequently, Post-Trial Motions seeking to Strike the Non-Suit
were filed, and denied. See Docket Entry 56; 58.
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1 The trial court did not rule on the motion requesting interlocutory review in
this Court.
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On March 4, 2019, [Appellant] filed a timely Notice of
Appeal.
Trial Court Opinion, 4/17/19, at 1–2.
Appellant raises the following issues for appellate review:
1. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions and precluded [Appellant] from testifying at trial or
arbitration?
2. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions and precluded [Appellant] from offering any evidence,
written or testimonial, from any and all lay and expert witnesses?
3. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions when [Appellant] had produced Answers to
Interrogatories and Request for Production of Documents 23 days
after [Appellant] had been served?
4. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions when [Appellant] reproduced Answers to
Interrogatories and Request for Production of Documents in
response to a pending Motion to Compel?
5. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions when [Appellant] made multiple good faith efforts to
schedule her deposition?
6. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions when [Appellant] made multiple good faith efforts to
schedule an independent medical examination with [Appellee’s]
doctor?
7. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted in [Appellee’s] Motion
for Sanctions, which was a harsh and draconian sanction as per
Rohm & Haas Co. v. Lin, 992 A.2d 132, 147 (Pa. Super. Ct. 2010)
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and Croydon Plastics Co. v. Lower Bucks Cooling and Heating,
698 A.2d 625, 629 (Pa. Super. 1997)?
8. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions, when there were lesser sanctions, besides preclusion,
that the court could have levied against [Appellant] in this case
if the trial [c]ourt found [Appellant] in violation of her discovery
obligations, which [Appellant] denies?
9. Whether the trial court abused its discretion and otherwise
committed an error of law when it granted [Appellee’s] Motion for
Sanctions, which was filed without merit, as [Appellant] had
participated in the discovery process?
10. Whether the trial court abused its discretion and otherwise
committed an error of law when it denied [Appellant’s] Motion for
Reconsideration of the September 18, 2018 and September 20,
2018 orders and memoranda?
11. Whether the trial court abused its discretion and otherwise
committed an error of law when it reinstated the September 18,
2018 and September 20, 2018 orders and memoranda?
12. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly granted
[Appellee’s] Motion for Non-Suit and entering judgment in favor
of [Appellee] at trial?
13. Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly denied [Appellant’s]
Post-Trial Motion to Strike the Judgment of Non-Suit?
Appellant’s Brief at 35–38.
Appellant’s first eleven issues generally assail The Honorable Emanuel
Bertin’s September 18, 2018 order granting Appellee’s motion for sanctions
and precluding Appellant from testifying at trial and from introducing any
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written or testimonial evidence from any witnesses.2 Appellant urges that the
imposition of the preclusive sanction was overly harsh because she
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2 Judge Bertin offered the following rationale in support of the preclusion
sanction:
[Appellee] has been prejudiced by [Appellant’s] refusal to
comply with the [Case Management Order (“CMO”)] deadlines.
Damages and causation are disputed issues in this matter.
[Appellant] is subject to limited tort threshold. She admitted in
discovery answers that her claims are for an aggravation of pre-
existing conditions from a prior accident(s) and has filed suit
against SEPTA for these same injuries. [Appellee] was deprived
of the opportunity to depose [Appellant] to investigate her full
history, the identity of all prior caregivers, prior accidents,
subsequent accidents and other essential facts relevant to
damages and/or causation. [Appellee] cannot build a proper
defense due to [Appellant’s] failure to comply with the CMO. Any
argument that [Appellant] answered interrogatories and gave
over medical records which contained names of other physicians
and this should be sufficient ignores the fact that a party has an
inherent right, barring a protective order, to depose the opposing
party. Often times facts, regarding post-accident hobbies and
activities are not disclosed in discovery answers or to caregivers.
Moreover the identification of caregivers that were not
forthcoming in answers to written discovery are only learned of
through a plaintiff’s deposition. Without this information
[Appellee] has been prejudiced from developing defenses to the
issues of damages and causation. Even if [Appellee] were to be
allowed to take [Appellant’s] deposition he would still require
several months of additional time in order to effectuate and
receive subpoena responses for pre-accident caregivers identified
at the deposition.
Lastly, [Appellee] makes a compelling concluding argument
in his brief that, in this court’s view, demands, in the interests of
justice, entry of a preclusion order:
[Appellant] was given ample warning of the penalties she
might face if she failed to comply with the CMO. She was also told
that her only remedy to avoid said penalties would be to file a
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substantially complied with Appellant’s discovery requests, she acted in good
faith, and any prejudice suffered by Appellee was easily curable.
The trial court “may, on motion, make an appropriate order” for
sanctions for discovery violations.” Pa.R.C.P. 4019. We will not reverse a trial
court’s order imposing a discovery sanction unless the trial court abused its
discretion. Farrell v. Farrell, 218 A.3d 485, 490 (Pa. Super. 2019) (citing
Rohm & Haas Co. v. Lin, 992 A.2d 132, 141–142 (Pa. Super. 2010)). While
____________________________________________
motion for extraordinary relief and provide a suitable explanation
to this [c]ourt as to why she could not comply with the deadlines
and required an additional extension. If [Appellant] had taken
that route and the [c]ourt denied her motion then [Appellee]
would be entitled to sanctions including preclusion. It was her
duty, if she wished to preserve her testimony and evidence, to
either appear for her deposition and defense medical examination
or to file a motion. She did neither.
Memorandum and Order, 9/18/18, at 3–4 (quotation marks omitted).
Judge Bertin amended the September 18, 2018 order to correct a
typographical error and to reference Appellant’s counsel’s response to his
inquiry concerning Appellant’s failure to file a response to Appellee’s motion
for sanctions:
[A]t the oral argument . . . the court inquired of [Appellant’s]
counsel as to why she did not bother to file a responsive
pleading/answer to the detailed motion for sanctions, which was
a serious motion, in that it requested a preclusion order.
[Appellant’s] response . . . was not satisfactory to this court and
demonstrated, again, the lack of seriousness [Appellant] is taking
toward her own case and her disregard of requirements of
important, timely court filings and deadlines.
Amended Memorandum and Order, 9/20/18, at 1.
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the severity of the sanctions imposed is also within the trial court’s discretion,
such discretion is not unfettered:
[B]ecause dismissal is the most severe sanction, it should be
imposed only in extreme circumstances, and a trial court is
required to balance the equities carefully and dismiss only where
the violation of the discovery rules is willful and the opposing party
has been prejudiced. Consequently, where a discovery sanction
either terminates the action directly or would result in its
termination by operation of law, the court must consider multiple
factors balanced against the necessity of the sanction.
Id. at 142 (internal quotation and citations omitted).
In City of Philadelphia v. Fraternal Order of Police Lodge No. 5
(Breary), 985 A.2d 1259 (Pa. 2009), the Pennsylvania Supreme Court
adopted this Court’s jurisprudence enumerating four factors for trial and
appellate courts to consider before concluding dismissal constitutes a proper
sanction for a discovery violation:
(1) the prejudice, if any, endured by the non-offending party and
the ability of the opposing party to cure any prejudice; (2) the
noncomplying party’s willfulness or bad faith in failing to provide
the requested discovery materials; (3) the importance of the
excluded evidence in light of the failure to provide the discovery;
and (4) the number of discovery violations by the offending party.
Id. at 1270 (citing Pioneer Commercial Funding Corp. v. Amer. Financial
Mortg. Corp., 797 A.2d 269 (Pa. Super. 2002), rev'd on other grounds, 855
A.2d 818 (Pa. 2004)). When the discovery sanction either terminates the
action directly or would result in its termination by operation of law, the first
two factors assume greater significance. City of Philadelphia, 985 A.2d at
1271. After the City of Philadelphia decision, this Court again identified the
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guiding principles for review of a trial court’s decision to effectively dismiss an
action for discovery violation, as follows: “the nature and severity of the
discovery violation, the defaulting party’s willfulness or bad faith, prejudice to
the opposing party, the ability to cure the prejudice; and the importance of
the precluded evidence in light of the failure to comply.” Rohm & Haas, 992
A.2d at 142 (quoting Croydon Plastics Company, Inc. v. Lower Bucks
Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997)). The trial court
herein carefully analyzed the Rohm Haas/Croydon factors in justifying the
preclusion determination:
In this case, [Appellant] had a prior car accident which
caused injuries to the same area as alleged in this case, and had
resulted in a prior lawsuit. See [Appellee’s] Response in
Opposition to Motion for Reconsideration. [Appellant] canceled
her deposition on short notice two times, and then rescheduled
her deposition for just three days before the discovery deadline.
[Appellant] confirmed her deposition the day before, and then
canceled the same deposition three hours later claiming that all
counsel were not available. See id. The first deposition was
canceled after [Appellant] agreed to the date because the parties
wished to depose both sides at the same time, and [Appellee] was
not available. Then the second deposition was scheduled, and the
location was changed to [Appellant’s] counsel’s office to be more
convenient, before being canceled because [Appellant’s] firm,
Simon & Simon, apparently did not have a single attorney
available to depose the parties. Despite having canceled her third
deposition days before the time for discovery expired, [Appellant]
failed to seek the only relief available, a Motion for Extraordinary
Relief. If [Appellant] truly believed [she] had made every effort
to meet the deadline, and [was] unable to do so, [she] could have
filed a Motion for Extraordinary Relief seeking to extend the time
for discovery which would have prevented the imposition of
sanctions for failing to comply with the Case Management Order.
[Appellant] failed to do so.1 [Appellant] did not do so even after
sanctions were entered in an attempt to have the sanctions
reconsidered. [Appellant] sought instead to have [Appellee]
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precluded from pursuing a defense due to her refusal to
participate in discovery, and refusal to seek appropriate relief.
1 “Any extension beyond the maximum time limit for
the placement of the case into the Civil Trial
Inventory, as noted in subsection (d) above, must be
approved by a Judge. Said request shall be in the
form of a Motion for Extraordinary Relief, which shall
set forth the reason(s) why the requested relief should
be granted. The opposing side(s) shall have five (5)
days in which to respond to said Motion, after which
time the Court will enter an appropriate order.” PA R
MONTGOMERY CTY RCP Rule 200 (3) (e).
Montgomery County adopted Rule 200 to ensure
timely discovery and trial. Counsel were aware of the
rule, and reminded at the Case Management
Conference that the rule would be strictly enforced.
[Appellant] also failed to respond to [Appellee’s] request for
an IME since at least May of 2018 to allow [Appellee] to prepare
an expert report in the case. [Appellant] did not advise that [she]
refused to participate in the examination, but merely failed to
respond. See id.Here, when considering the factors espoused in Croydon
Plastics Co., it is clear that the [c]ourt was well within its discretion
to issue the preclusion order. When considering the nature and
severity of the discovery violations, they are extreme. The ability
to depose [Appellant] and have a Defense expert examine
[Appellant] form a large part of the Defense of an auto negligence
claim. Without those pieces of discovery, [Appellee] is unable to
pursue other avenues of discovery to prepare a defense, is unable
to engage in settlement negotiations, and is unable to form a
theory of their case. [Appellee] is forced to guess about the
nature and cause of [Appellant’s] injuries, the alleged extent of
damages, [Appellant’s] version of events, and a myriad of other
facts. The fact that [Appellant] complied with some discovery
requests does not excuse [her] other, more significant failures.
Further, in this case, [Appellant’s] willfulness or bad faith was
significant. While not intentional, [Appellant] engaged in a
significantly negligent approach to discovery. Requests for an
[Independent Medical Exam (“IME”) were completely ignored by
[Appellant], and the requests for a deposition were cancelled late,
and with little regard for the impending deadlines. Further, when
[Appellant’s] neglect caused prejudice to [Appellee], [Appellant]
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failed to seek relief in the form of a Motion for Extraordinary Relief
to extend discovery.
Third, as discussed already, and alleged in the Motion for
Sanctions and Memoranda of Senior Judge Bertin, [Appellee] was
severely prejudiced. [Appellee] was left without the ability to
contest damages without the IME. [Appellee] also was unable to
explore whether there were more underlying accidents prior to or
subsequent to this accident. [Appellee] was unable to learn the
allegations of [Appellant] regarding the events of the accident and
the specific ways in which she had been damaged. Fourth,
[Appellee] could not cure the prejudice without compliance by
[Appellant]. Further, [Appellant] did not seek to remove the
prejudice by filing a Motion for Extraordinary Relief. Finally, the
importance of the evidence that was excluded in light of the failure
to comply, as already discussed, was enormous. [Appellant] failed
to engage in meaningful discovery, running out the clock on
discovery, and now claims that [she] should be permitted to
benefit from [her] failure to engage in good faith discovery or cure
[her] default by seeking an extension of the discovery deadline
[she] failed to meet. The [c]ourt cannot permit a [p]laintiff to
disobey the deadlines set by the [c]ourt, and avoid the clear
consequences that are laid out for a failure to comply. For all the
factors considered, particularly the prejudice, and the willful
failure to correct the deficiencies, the [c]ourt did not abuse its
discretion in precluding [Appellant] from presenting evidence or
testifying in her case. Finally, this [c]ourt’s denial of the Motion
for Reconsideration and reinstatement of the sanctions was proper
for the same reasons this [c]ourt’s original order granting
sanctions was proper.
Trial Court Opinion, 4/17/19, at 5–8.
Rather than challenge the trial court’s Rohm Haas/Croydon analysis,
Appellant crafts her appellate argument that the order precluding her from
testifying and presenting evidence at trial was an improper sanction by
reference to the Pennsylvania Supreme Court’s decision in City of
Philadelphia. Although the phraseology describing the factors to evaluate
the propriety of a severe discovery sanction differs somewhat in these cases,
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we do not find any significant distinction in the two Courts’ teachings on the
balancing of the equities required when a discovery sanction effectively
terminates the litigation. Thus, we conduct our review of the propriety of the
discovery sanction under the precepts established in Rohm Haas/Croydon.
Rohm Haas/Croydon first requires courts to evaluate the nature and
severity of the discovery violations. The trial court weighed this factor against
Appellant, finding that her failure to be deposed and submit to an IME
thwarted Appellee’s ability to prepare a defense, formulate a theory of the
case, or engage in settlement negotiations. The trial court also determined
that without Appellant’s deposition and an IME, Appellee could not ascertain
the nature and cause of Appellant’s injuries or the extent of damages allegedly
suffered.
Appellant responds to the trial court’s description of her discovery
violations in the section of her brief contending that the sanction imposed was
unduly harsh. Appellant’s position in this regard can be summarized as
follows: 1) the trial court’s order granting the motion for sanctions was
equivalent to a dismissal of Appellant’s claims; 2) Appellant committed only
one discovery violation; 3) evaluation of the Rohm Haas/Croydon factors
suggests that the trial court ruled incorrectly; and, 4) the “punishment did not
fit the crime.” Appellant’s Brief at 55–60.
Appellant’s contention that the preclusion order effectively terminated
the case is not disputed and requires no further discussion. Appellant’s next
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claim that she committed one discovery violation is not supported. Notably,
Appellant does not identify the admitted discovery violation. Nevertheless,
the record demonstrates that Appellant’s responses to Appellee’s
interrogatories and request for documents did not identify fully her medical
care providers or details about prior injuries she sustained in another
automobile accident or the ensuing lawsuit stemming from that earlier
accident. Additionally, Appellant twice cancelled her deposition on very short
notice, citing counsel’s staffing issues. Appellant further violated the discovery
process when she did not heed the CMO’s directive that discovery could be
extended only by leave of court and in extraordinary circumstances.
Appellant also submits that consideration of the Rohm Hass/Croydon
factors suggests that the trial court erred in precluding Appellant from
testifying or presenting evidence as a sanction for what she describes as her
de minimis discovery violation. Despite the trial court’s thoughtful
consideration of those factors in its Pa.R.A.P. 1925(a) opinion, Appellant does
not contest the trial court’s analysis in any manner. Without a substantive
challenge to the trial court’s reasoning, this issue is waived. See Lechowicz
v. Moser, 164 A.3d 1271, 1276 (Pa. Super. 2017) (Superior Court will not
consider argument that is not properly developed).
Appellant reiterates her claim that the discovery sanction was draconian
by citation to Estate of Ghaner v. Bibi, 779 A.2d 585 (Pa. Super. 2001),
wherein this Court observed that in “formulating an appropriate sanction
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order, the court is required to select a punishment which ‘fits the crime.’” Id.
at 590 (quoting Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. 1998)). In
Ghaner, the trial court dismissed a plaintiff’s wrongful death lawsuit after she
failed to file a pretrial statement in accordance with Pa.R.C.P. 212.2(c). We
ruled that dismissal was a harsh and inappropriate sanction because a lone
violation of the Pennsylvania Rules of Civil Procedure without something
further could not be deemed “willful,” “contemptuous,” or “dilatory.” Id. at
589.
This case is distinguishable from Ghaner. As detailed above, Appellant
did not violate one rule of procedure. Rather, she engaged in a pattern of
dilatory conduct designed to circumvent the discovery process, particularly in
regard to her repeated failure to appear for a deposition. Appellant was also
not cooperative in producing comprehensive and timely information about
both her injuries resulting from the accident involving Appellee or those
incurred in an earlier accident. Additionally, Appellant did not file a motion for
extraordinary relief after the sanctions were entered to attempt to cure the
prejudice. These discovery violations were severe enough to warrant
dismissal. See Stewart v. Rossi, 681 A.2d 214, 219 (Pa. Super. 1996)
(upholding trial court’s dismissal sanction when discovery violations were in
bad faith and significantly prejudiced the defendant’s defense).
Appellant next claims that she did not act willfully or in bad faith during
the discovery process. Appellant asserts that she complied with the CMO and
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produced all the relevant documents requested, including her medical records
and expert reports. Appellant further maintains that she agreed to submit to
a medical examination with Appellee’s physician despite the fact that Appellee
failed to seek a court order for the examination as required by Pa.R.C.P.
4010.3
Appellant’s assertion of her purported willingness to engage in the
discovery process is contradicted by her cavalier approach to Appellee’s
discovery requests. Appellant twice cancelled her deposition on short notice,
citing counsel’s unavailability. Additionally, although Pa.R.C.P. 208.3 does not
require that a response be filed to a motion for sanctions, given the severity
of the preclusive relief requested by Appellee, we agree with Judge Bertin that
Appellant’s non-response to the motion demonstrated “the lack of seriousness
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3 Rule 4010 provides, in relevant part:
(2) When the mental or physical condition of a party, or of
a person in the custody or under the legal control of a party, is in
controversy, the court in which the action is pending may order
the party to submit to a physical or mental examination by an
examiner or to produce for examination the person in the party's
custody or legal control.
* * *
(3) The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all
parties and shall specify the time, place, manner, conditions and
scope of the examination and the person or persons by whom it is
to be made.
Pa.R.C.P. 4010(2) and (3).
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[Appellant] is taking toward her own case and her disregard of requirements
of important, timely court filings and deadlines.” Amended Memorandum and
Order, 9/20/18, at 1. Finally, and significantly, if Appellant believed that her
non-compliance with Appellee’s discovery requests was excused by legitimate
reasons, the remedy to extend the discovery deadline, as dictated by
Montgomery County Local Rule 203(e) and the CMO, was to file a motion for
extraordinary relief. Appellant did not seek such relief.
Finally, Appellant asserts that “[t]he prejudice, if any, suffered by
[Appellee] was minimal and easily cured.” Appellant’s Brief at 52. Appellant
contends that Appellee was equally responsible for the difficulty in scheduling
her deposition. She particularly chastises Appellee for waiting until two
months before the discovery deadline to request her deposition in light of his
representation that once the deposition occurred, Appellee would “require
several months of additional time in order to effectuate and receive subpoena
responses for pre-accident caregivers identified at the deposition.” Appellant’s
Brief Pursuant to Court’s Order of September 6, 2018 (directing that the
parties file briefs on Appellee’s Motion for Sanctions), 9/14/18, at 6. Appellant
then offers that any prejudice could have been alleviated since she offered to
be deposed despite the passing of the discovery deadline.
We do not find Appellant’s counter to the trial court’s finding of prejudice
to be compelling. Significantly, Appellant does not dispute the basis for the
prejudice ruling—that Appellee’s inability to depose Appellant hampered
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Appellee’s ability to formulate a defense to Appellant’s lawsuit. Appellant’s
position that Appellee bore equal blame for the failure to schedule Appellant’s
deposition is not responsive to whether Appellee was prejudiced. In any
event, it is clear that most of the scheduling issues were occasioned by
Appellant’s unavailability and her untimely cancellations. Also, Appellant’s
claim that any prejudice was curable because she offered to be deposed after
the court-imposed deadline does not consider that scheduling such a
deposition would require defiance of the CMO. Appellant was cautioned that
discovery after the stated closing date would not be permitted “without leave
of [c]ourt and except upon showing of extraordinary circumstances.” Civil
Case Management Conference Order, 5/18/18, at unnumbered 1. In the
absence of a motion for extraordinary relief, Appellant’s proposal for an out-
of-time deposition was legally untenable.
Based upon the standard established by Rohm Haas/Croydon, we
conclude that the trial court correctly determined that Appellant’s dismissive
behavior throughout the discovery process warranted the severe sanction of
dismissal. Accordingly, the trial court did not abuse its discretion in preventing
Appellant from introducing evidence at trial as a sanction.
Appellant’s final issues allege that the trial court erred when it granted
Appellee’s motion for nonsuit and further erred by denying her post-trial
motion to strike the nonsuit judgment. Appellant succinctly asserts that the
two September 2018 orders granting and amending Appellee’s Motion for
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Sanctions and Preclusion were “the initial tipping points, triggering an extreme
domino-like effect for the duration of [Appellant’s] case, resulting in a granting
of Non-Suit and judgment in favor of [Appellee].” Appellant’s Brief at 60.
Nonsuit is properly entered where it is clear that the plaintiff has not
established a cause of action or right to relief. See Pa.R.C.P. 230.1. (“the
court, on oral motion of the defendant, may enter a nonsuit on any and all
causes of action if . . . the plaintiff has failed to establish a right to relief.”).
We will reverse an order denying a motion to remove a nonsuit only if the trial
court abused its discretion or made an error of law. Staiger v. Holohon, 100
A.3d 622, 624 (Pa. Super. 2014) (quotation omitted).
We can readily resolve the question of the propriety of the trial court’s
decisions to grant Appellee’s motion for nonsuit and to deny Appellant’s
motion to strike. First, there is no question that Appellant failed to state a
claim for relief. Second, Appellant’s argument focuses solely on the validity of
Judge Bertin’s orders granting Appellee’s motion for sanctions and preclusion
and denying reconsideration. We have concluded that those orders are legally
sustainable; accordingly, Appellant is not entitled to relief.
Order affirmed.
Judge Bowes joins this Memorandum.
Judge Strassburger files a Concurring Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/20
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