Angelichio v. Myers

39 Pa. D. & C.5th 460
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJune 30, 2014
DocketNo. 05-15422
StatusPublished

This text of 39 Pa. D. & C.5th 460 (Angelichio v. Myers) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angelichio v. Myers, 39 Pa. D. & C.5th 460 (Pa. Super. Ct. 2014).

Opinion

SPRECHER, J.,

Defendant, Michael J. D’Aniello, Esquire, [462]*462administrator of the estate of Tyrone Diefenderfer, appeals the orders dated February 25, 2014, January 30, 2014, and October 9, 2013. This opinion is filed pursuant to Pa. R.A.P. 1928.

FACTS

Tina Marie Plotts died on February 27, 2004, as a result of a fire which started in the kitchen of the premises where she was a tenant. Defendant, Tyrone Diefenderfer (defendant), also resided on the premises, at least sporadically, and was staying there on the night of the fire. He was the only eyewitness to the incident. According to the landlords and owners of the premises, defendants Betsy Jo Myers and Joanne E. Myers, defendant did maintenance for them in exchange for the payment of rent to reside there. On the evening of the fire, defendant had fallen asleep on a couch in the first floor living room after consuming a six-pack of beer. Ms. Plotts was in her designated second floor bedroom when a fire originated in the kitchen of the first floor of the residence. The cause and/or ignition source was determined to be an unattended pot on the right rear burner of the electric stove. The cause of the rapid progression and expansion of the fire was determined to be kerosene leaking from a defective kerosene container stored near the stove.

Defendant escaped the burning residence, but Ms. Plotts was trapped inside the dwelling and could not flee; her bedroom windows were sealed shut and the stairs were impassible. She was found dead by fire personnel.

Plaintiff, Joseph Michael Angelichio, filed a motion pursuant to Pa. R.C.P. 4019 against defendant’s estate for defendant’s failure to obey two court orders requiring his attendance at a videotape discovery deposition along with related discovery violations which impacted plaintiff’s [463]*463ability to proceed with the lawsuit. In this motion, plaintiff outlines a long imcontro verted history of defendant’s noncompliance with scheduled depositions.

Plaintiff’s counsel first requested deposition dates for defendant by letter to defendant’s counsel dated June 17, 2007. Defendant was then scheduled for a deposition on August 13,2007, at 12:30 p.m. which was mutually agreeable to the parties. Defendant did not appear for the deposition, and his counsel stated that he could not locate him.

On August 27, 2008, defendant’s present counsel entered his appearance for defendant. Plaintiff again requested deposition dates for defendant. Eventually, defendant’s counsel provided several deposition dates; plaintiff selected October 15,2008, with no objection from defendant, for a videotaped deposition. Again, defendant failed to appear. A new date of November 8, 2008, was selected for defendant’s deposition. On October 27, 2008, defendant’s counsel contacted plaintiff’s counsel and stated that he was unable to locate defendant about the rescheduled deposition. OnNovember 7,2008, defendant’s counsel notified plaintiff’s counsel that because his office was unable to locate defendant, defendant’s scheduled deposition of November 8, 2008, was cancelled.

On January 7, 2009, plaintiff’s counsel wrote to defendant’s counsel to request defendant’s last known address and Social Security number so he could hire a private investigator to find defendant. After receiving the requested information, plaintiff hired a private investigator who found defendant. Plaintiff then served defendant with a subpoena to take his deposition on April 27, 2009. On April 23,2009, plaintiff’s counsel contacted defendant’s counsel to confirm that defendant would appear for his deposition. By letter dated April 23, 2009, [464]*464plaintiff’s counsel issued an amended notice of videotaped deposition in accordance with Pa. R.C.P. 4017.1. By letter dated April 26, 2009, defendant’s counsel notified plaintiff’s counsel that defendant refused to be videotaped and would therefore not appear for his deposition.

On April 28, 2009, April 29, 2009, and April 30, 2009, plaintiff’s counsel contacted defendant’s counsel to reschedule defendant’s deposition. Ultimately, defendant’s counsel informed plaintiff’s counsel that defendant refused to be videotaped during his deposition.

On May 18,2009, plaintiff filed a motion for contempt and for sanctions. On July 8,2009, the Honorable Scott E. Lash, on behalf of Senior Judge Albert A. Stallone, entered an order requiring defendant to appear for a videotaped deposition.

Plaintiff filed a second motion for contempt and for sanctions on May 10, 2010. On August 25, 2010, Judge Lash on behalf of Senior Judge Stallone entered an order for defendant to appear for a videotaped deposition and further ordered that the videotape would be retained by counsel for only their own use and the court’s use and would not be published to third persons. Defendant was also entitled to receive a copy of the videotape.

The parties mutually agreed on the date of November 10, 2010, for a videotaped deposition. By letter dated November 9,2010, defendant’s counsel notified plaintiff’s counsel that defendant would not appear for the deposition on November 10, 2010.

The parties subsequently agreed on December 2, 2010, for defendant’s deposition. By letter dated November 30, 2010, defendant’s counsel notified plaintiff’s counsel that defendant would not appear for this deposition because he [465]*465was out of town until January 1, 2011.

Defendant’s deposition was then scheduled for January 31, 2011. By letter dated January 28, 2011, defendant’s counsel cancelled this deposition. Defendant had told his counsel that “there is no way I’m getting involved.” Defendant’s counsel further stated in the letter, “obviously, Mr. Diefenderfer will not appear Monday, nor any other time the deposition is rescheduled.”

The only statement defendant ever gave concerning the fire was an unsworn statement to a state trooper on the night of the fire. At that time he denied that he was the cause of the fire. Defendant died in January 2012.

After argument and a consideration of defendant’s dismal record of non-compliance, this court entered the orders which are the subjects of the instant appeal. This court found that the most appropriate sanction in this case was to grant plaintiff’s request for judgment in his favor and against defendant. Defendant filed an interlocutory appeal concerning this sanction.

ISSUES

Defendant raises the following issues in his concise statement of errors complained of on appeal.

1. This court erred and manifestly abused its discretion in entering judgment against defendant, pursuant to Pa.R.C.P. 4019, as a result of defendant’s failure to appear for his videotaped deposition, since there were less severe sanctions which would cure any alleged prejudice.

2. The record demonstrates that plaintiff bears some responsibility for the alleged prejudice which has accrued as a result of defendant’s death. Moreover, the alleged prejudice is unfounded. None of the evidence produced [466]*466during the seven years of litigation in any way suggested that defendant was negligent or that his conduct was a substantial factor in causing the fire.

3.

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Bluebook (online)
39 Pa. D. & C.5th 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelichio-v-myers-pactcomplberks-2014.