Aguilar, J. v. Sicinski, E.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2021
• Docket: 1476 EDA 2020
• Status: Unpublished

Opinion

J-A10002-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JONATHAN RAMIREZ-AGUILAR : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : EDWARD SICINSKI : No. 1476 EDA 2020

Appeal from the Order Entered June 24, 2020 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 190500907

JONATHAN RAMIREZ-AGUILAR : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : EDWARD SICINSKI : No. 1477 EDA 2020

Appeal from the Order Entered June 22, 2020 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 190500907

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: Filed: September 9, 2021

Jonathan Ramirez-Aguilar filed a notice of appeal from the trial court’s

June 22, 2020 order denying his motion to vacate the preclusion order entered

by the court as a sanction for discovery violations in the personal injury action

he initiated against Edward Sicinski. Ramirez-Aguilar also filed a separate

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A10002-21

notice of appeal challenging the June 24, 2020 order, issued by a different

trial court, which granted Sicinski’s motion for summary judgment. This Court

sua sponte consolidated the appeals, and we now affirm both orders being

appealed.

On May 10, 2019, Ramirez-Aguilar filed a complaint against Sicinski

seeking damages from a motor vehicle accident between the two in 2017. An

arbitration date was set for February 24, 2020. In June of 2019, Sicinski sent

Ramirez-Aguilar Interrogatories and Requests for Production of Documents.

Ramirez-Aguilar did not respond and, on October 4, 2019, Sicinski filed

a motion to compel responses to his Interrogatories and Requests for

Production. Ramirez-Aguilar did not contest the motion, and the Honorable

Lori Dumas granted the motion and ordered Ramirez-Aguilar to file responses

within 20 days of the order. Ramirez-Aguilar did not comply, leading Sicinski

to file a motion for sanctions on December 5, 2019. A hearing on the motion

was scheduled for December 19, 2019. One day before the hearing, Ramirez-

Aguilar served his responses to Sicinski’s interrogatories, as well as “all

discoverable documents in [Ramirez-Aguilar]’s possession” at the time.

Sicinski nonetheless indicated his intention to pursue his motion for

sanctions, as Ramirez-Aguilar had only provided him medical documents from

the EMS and the hospital, and not with any records from Ramirez-Aguilar’s

post-accident treating physician. The parties agreed that Ramirez-Aguilar

would be allowed 30 additional days to fully respond to Sicinski’s requests and

-2- J-A10002-21

that if he again failed to comply, Sicinski could seek the preclusion of evidence

upon further application to the court. The Honorable Lisette Shirdan-Harris

entered an order to this effect on December 20, 2019.

Ramirez-Aguilar once again did not comply with the order. In response,

Sicinski filed a motion for sanctions on February 12, 2020, seeking to preclude

Ramirez-Aguilar from testifying and presenting evidence at arbitration/trial.1

Judge Shirdan-Harris scheduled a hearing on the matter for February 27,

2020, but Ramirez-Aguilar failed to appear at the hearing or otherwise

respond to the motion. Judge Shirdan-Harris therefore granted, as

uncontested, Sicinski’s motion to preclude Ramirez-Aguilar from presenting

evidence in an order filed on February 28, 2020 (“preclusion order”).

On March 5, 2020, Sicinski filed a motion for summary judgment, which

was assigned to the Honorable Paula Patrick. Over two and one-half months

later, Ramirez-Aguilar filed an untimely opposition to the summary judgment

motion. At the same time, he also filed a motion to vacate Judge Shirdan-

Harris’s preclusion order. Judge Shirdan-Harris denied Ramirez-Aguilar’s

motion to vacate in an order entered on June 22, 2020. Judge Patrick, in turn,

granted Sicinski’s motion for summary judgment on June 24, 2020.

1 On the same date, Sicinski also filed an application to continue the arbitration, which the court granted and set a new arbitration hearing date of April 24, 2020.

-3- J-A10002-21

Ramirez-Aguilar filed a notice of appeal from Judge Shirdan-Harris’s

order denying his motion to vacate the preclusion order and a separate notice

of appeal from Judge Patrick’s order granting Sicinski’s motion for summary

judgment. Ramirez-Aguilar filed identical Pa.R.A.P. 1925(b) statements of

errors complained of on appeal in each matter, and then identical amended

statements in which he raised the following two issues:

1. The Trial Court committed an error of law and abused its discretion by granting [Sicinski’s] Motion for Summary Judgment, when it ignored the evidence that granting summary judgment on the basis of previously precluded evidence was improper when [Ramirez-Aguilar] provided responses to discovery, and filed a Motion to Vacate the preclusion order entered by this Court.

2. The Trial Court committed an error of law and abused its discretion by denying [Ramirez-Aguilar’s] Motion to Vacate Preclusion, when it ignored the evidence that [Ramirez-Aguilar] had a good-faith basis to vacate the preclusion order in this matter.

Amended Concise Statement of Matters Complained of Upon Appeal Pursuant

to Pa.R[.]A[.]P[.] 1925(b), 7/22/20.

In response, both Judge Shirdan-Harris and Judge Patrick issued

Pa.R.A.P. 1925(a) opinions. Judge Patrick opined that she had properly

granted Sicinski’s motion for summary judgment because Judge Shirdan-

Harris had denied the motion to vacate the preclusion order, which prevented

Ramirez-Aguilar from presenting any evidence or testimony in furtherance of

his case. By virtue of this order, Judge Patrick reasoned, Ramirez-Aguilar was

unable to prove the elements of his cause of action, and Sicinski had therefore

-4- J-A10002-21

shown that there was no genuine issue of any material fact as to the necessary

elements of that cause of action, entitling him to summary judgment. See

Pa.R.C.P. 1035.2. In relation to Ramirez-Aguilar’s second issue, Judge Patrick

concluded that she did not have jurisdiction over the motion to vacate the

preclusion order as that had been assigned to, and considered by, Judge

Shirdan-Harris.

In her 1925(a) opinion, Judge Shirdan-Harris similarly noted that she

did not have jurisdiction over the summary judgment motion as that had been

considered by Judge Patrick. Further, Judge Shirdan-Harris concluded that the

preclusion of evidence had been a proper remedy for Ramirez-Aguilar’s

multiple discovery violations, which had been “significant”. Trial Court

Opinion, 9/22/20, at 5 (unpaginated). As noted above, this Court sua sponte

consolidated the two matters for appeal.

Ramirez-Aguilar first challenges Judge Shirdan-Harris’s order denying

his motion to vacate the preclusion order. He contends that the court

improperly entered the preclusion order because he responded to discovery -

albeit “not in its entirety” - before Sicinski moved for preclusion, and because

there was no evidence of bad faith on his part or any prejudice suffered by

Sicinski that was not capable of being cured. Appellant’s Brief at 9. This claim

does not provide Ramirez-Aguilar with any basis for relief.

Under Rule 4019 of the Rules of Civil Procedure, a trial court may “make

an appropriate order” if a party “fails to make discovery or to obey an order

-5- J-A10002-21

of court respecting discovery.” Pa.R.C.P. 4019(a)(1)(viii). The decision of

whether to sanction a party for such discovery violations, and the severity of

any sanction imposed, is vested in the discretion of the trial court. See

Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d

625, 629 (Pa. Super. 1997). This Court will not reverse a trial court’s order

sanctioning a party unless we find that the trial court abused its discretion in

imposing a particular sanction. See id.

The most severe sanction a trial court can impose for discovery

violations is dismissing an action outright, or entering an order which is

tantamount to dismissal in that it leads to summary judgment being entered

against the sanctioned party. See id. Given the severity of the sanction, a

trial court should “dismiss only where the violation of the discovery rules is

willful and the opposing party has been prejudiced.” Id. (citation omitted).

When deciding whether dismissal of a cause of action is the appropriate

sanction for discovery violations, the trial court should consider the following

factors: (1) the nature and severity of the violation; (2) the willfulness or bad

faith of the noncomplying party; 3) the prejudice to the opposing party; 4)

the ability to cure prejudice; and 5) the importance of the precluded evidence

in light of the failure to comply with the discovery orders. See id.

Here, Judge Shirdan-Harris thoroughly considered each of these five

factors. Judge Shirdan-Harris first noted that the nature and severity of

Ramirez-Aguilar’s discovery violations was significant in that he did not

-6- J-A10002-21

produce initial responses until the day prior to a hearing on Sicinski’s motion

for sanctions stemming from Ramirez-Aguilar’s violation of the court’s first

order to compel. And even then, Judge Shirdan-Harris noted, Ramirez-Aguilar

did not produce “crucial records” from his treating physician following the

accident, although he had had six months from the initial discovery requests

in which to obtain those records. Trial Court Opinion, 9/22/20, at 6

(unpaginated).

Judge Shirdan-Harris also found that Ramirez-Aguilar acted willfully and

in bad faith regarding his failure to comply with discovery requests and orders.

To that end, Judge Shirdan-Harris stated:

[Ramirez-Aguilar] appears to have engaged in a considerably negligent approach to discovery and engaged in repeated discovery violations over the course of a year. Requests for even initial responsive discovery were ignored until [Sicinski] was forced to seek the intervention of this Court for the second time. Further, when [Ramirez-Aguilar] missed the deadline set in the December 2019 Sanctions Order that he had agreed to for supplemental discovery (which the agreed upon order also included leave for [Sicinski] to move for preclusion), [Ramirez- Aguilar] did not seek relief in the form of a motion for extraordinary relief to extend discovery. [Ramirez-Aguilar] instead failed to attend the hearing date for the Motion for Sanctions for Preclusion and waited nearly three months to file his Motion to Vacate. Moreover, at no point prior to this Court’s grant of summary judgment - over a year after the initiation of this matter - did [Ramirez-Aguilar] actually produce the medical records critical to this case.

Id. (emphasis in original).

Judge Shirdan-Harris also found that Sicinski had been prejudiced by

Ramirez-Aguilar’s discovery violations, noting that Ramirez-Aguilar’s

-7- J-A10002-21

noncompliance left Sicinski in the position of trying to contest damages

without the relevant medical records. The Judge pointed out that this prejudice

could not be cured without Ramirez-Aguilar’s compliance. Lastly, Judge

Shirdan-Harris characterized the importance of the evidence of the treating

physician’s records as “enormous.” Id. at 7 (unpaginated). Without this

information, Judge Shirdan-Harris explained, Sicinski was unable to prepare a

defense, engage in settlement negotiations, or form a theory of his case.

Instead, the Judge found that Sicinski was forced to guess about critical

aspects of the case, such as Ramirez-Aguilar’s injuries and the alleged extent

of damages.

Weighing all of these factors, Judge Shirdan-Harris made the following

conclusion:

[Ramirez-Aguilar] failed to engage in meaningful discovery and now claims that he should be permitted to benefit from his failure to engage in good faith discovery or cure his default by presenting evidence at trial that he failed to produce. The Court cannot permit a [p]laintiff to disobey the multiple deadlines set by the Court, and avoid the clear consequences that are laid out for a failure to comply. For all the factors considered, particularly the willful failure to correct deficiencies, the Court did not abuse its discretion in precluding [Ramirez-Aguilar] from presenting evidence.

Id.

We agree that there was no abuse of discretion on the part of the trial

court in entering the preclusion order. In arguing otherwise, Ramirez-Aguilar

asserts that his failure to provide discovery did not rise to the level of bad

faith because it resulted from his own inability to obtain the medical records

-8- J-A10002-21

from his treating physician. As Sicinski points out, however, Ramirez-Aguilar

does not attempt to explain why he is raising this excuse for the first time on

appeal rather than doing so at the hearing regarding Sicinski’s motion to

preclude, which he failed to attend.

In any event, in support of his argument, Ramirez-Aguilar summarily

cites to City of Philadelphia v. Fraternal Order of Police Lodge No. 5

(Breary), 985 A.2d 1259, 1272 (Pa. 2009), for the proposition that a plaintiff

does not act in bad faith where his noncompliance with a subpoena resulted

from a “clerical error” and the plaintiff produced the subpoenaed documents

once he learned of the inadvertent failure to comply. The circumstances here

are entirely different. Ramirez-Aguilar does not allege that he failed to produce

the records from his treating physician because of any kind of clerical error.

And, unlike the noncomplying party in Fraternal Order of Police Lodge No.

5, Ramirez-Aguilar has yet to produce the documents in question. As such,

his reliance on Fraternal Order of Police Lodge No. 5 is misplaced.

Ramirez-Aguilar also contends that any prejudice suffered by Sicinski is

“hardly incurable” as Ramirez-Aguilar could, upon remand, simply either

provide the missing records or confirm that they do not exist. Appellant’s Brief

at 14. Notably, Ramirez-Aguilar does not explain why he should be allowed to

take either of these actions now after repeatedly failing to do so when faced

with the discovery orders compelling him to comply with the discovery

requests and after the set arbitration date has already passed.

-9- J-A10002-21

Instead, Ramirez-Aguilar argues that his case is similar to this Court’s

unpublished memorandum in Davis v. Showell, 3806 EDA 2015, 159 A.3d

1005 (Pa. Super. 2016) (unpublished memorandum). In the first place, absent

certain circumstances not present here, an unpublished Superior Court

memorandum decision filed prior to May 2, 2019 may not be “relied upon or

cited by a Court or a party in any other action or proceeding.” Coleman v.

Wyeth Pharm., Inc., 6 A.3d 502, 522 n.11 (Pa. Super. 2010) (citations and

quotation marks omitted); Superior Court IOP § 65.37(B). Further, even if it

were proper to rely upon this case, an unpublished memorandum decision

filed prior to May 2, 2019 carries no precedential or persuasive value. See

Commonwealth v. Finnecy, 249 A.3d 903, 910 n.9 (Pa. 2021);

Commonwealth v. Phinn, 761 A.2d 176, 179 (Pa. Super. 2000).

Even if it did, Davis involved different circumstances from those

presented here. The Davis panel did find, as Ramirez-Aguilar points out, that

the trial court “in this case” abused its discretion by dismissing the plaintiff’s

case as a sanction for her discovery violation. See id. at 7 (emphasis in

original). However, in doing so, the Davis panel noted that the discovery

violation underlying the dismissal sanction was the plaintiff’s first and did not

result from any bad faith on the part of the plaintiff but rather, resulted from

an administrative oversight. Moreover, the panel noted that the plaintiff

eventually turned over 250 pages of discovery which the panel could not say

was an incomplete response to the discovery request.

- 10 - J-A10002-21

Here, in contrast, Judge Shirdan-Harris specifically noted that Ramirez-

Aguilar had violated multiple discovery deadlines and, again, Ramirez-Aguilar

does not allege that his failure to comply with discovery resulted from any

kind of administrative oversight. In addition, Ramirez-Aguilar concedes he has

not turned over his treating physician’s records. Therefore, even if Davis was

binding authority, Ramirez-Aguilar has failed to demonstrate how Davis

compels the conclusion that the court abused its discretion by entering the

preclusion order here.

Because Ramirez-Aguilar has not shown that Judge Shirdan-Harris

abused her discretion by precluding him from introducing evidence at

arbitration because of his discovery violations, he likewise has not shown that

the judge abused her discretion by denying his motion to vacate that

preclusion order. As such, we affirm the order denying the motion to vacate.

See Croydon Plastics Co., Inc., 698 A.2d at 629.

Next, Ramirez-Aguilar claims that Judge Patrick abused her discretion

by entering an order granting Sicinski’s motion for summary judgment. His

entire argument stems from his contention that this order must be “vacated,

as it was rendered in reliance upon [Judge Shirdan-Harris]’s erroneous denial

of [his] Motion to Vacate.” Appellant’s Brief at 18. As we have already

determined that Judge Shirdan-Harris did not abuse her discretion in denying

Ramirez-Aguilar’s motion to vacate the preclusion order, we likewise reject

Ramirez-Aguilar’s piggy-backed claim that summary judgment was improperly

- 11 - J-A10002-21

granted on the basis of that motion. Simply put, the preclusion order

precluded Ramirez-Aguilar from presenting evidence and testimony in

furtherance of his case at arbitration. As a result, we agree with Judge Patrick

that Sicinski demonstrated that there was no genuine issue of material fact

regarding the elements of the cause of action and that he was therefore

entitled to summary judgment as a matter of law. See First Wisconsin Trust

Co. v. Strausser, 653 A.2d 688, 691 (Pa. Super. 1995) (stating that

summary judgment is properly granted when there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of

law).

The June 22, 2020 order denying the motion to vacate the preclusion

order is affirmed. The June 24, 2020 order granting the motion for summary

judgment is also affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/21

- 12 -