Brotech Corp. v. Delmarva Chemicals Inc.

56 Pa. D. & C.4th 22, 2002 Pa. Dist. & Cnty. Dec. LEXIS 216
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 6, 2002
Docketno. 2524
StatusPublished

This text of 56 Pa. D. & C.4th 22 (Brotech Corp. v. Delmarva Chemicals Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brotech Corp. v. Delmarva Chemicals Inc., 56 Pa. D. & C.4th 22, 2002 Pa. Dist. & Cnty. Dec. LEXIS 216 (Pa. Super. Ct. 2002).

Opinion

TERESHKO, J.,

Before the court is the appeal taken by plaintiff, Brotech Corporation (appellant), from an order of the court dated October 31, 2001, granting summary judgment in favor of defendants, Delmarva Chemicals Inc. and GFI Chemicals (appellees).

Briefly, the relevant facts relating to this case are as follows:

Appellant is the manufacturer of cation exchange resins which are used in the water treatment process.1 Caustic soda is an ingredient used in the manufacture of the resins.2 Appellee is a supplier of caustic soda.3 Appellant brought a negligence and breach of contract action against appellee for supplying allegedly contaminated caustic [24]*24soda that appellant used in manufacturing its resins. Appellant sold the resins to various customers who complained about an odor in the resins and subsequently returned the resins to appellant.4 As a result, appellant suffered lost profits due to the returned sales, purported to be in excess of four million dollars. This lawsuit was filed in June 1999. Appellant maintains a minimum two-year retention policy on its product samples and customer returns.5 The resins that are the subject of this litigation were manufactured in 1998; nevertheless, they were destroyed some time after appellant filed its lawsuit in 1999, even though they were significant evidence in the litigation. Thus, appellee was deprived of the opportunity to conduct inspection and testing of the resins to defend appellant’s claims.

The court imposed a discovery deadline of March 5, 2001, pursuant to a case management order. Numerous discovery orders were entered against appellant to comply with requests that would assist appellees in the defense of this lawsuit. (See orders of July 26, 2000, September 13, 2000, November 29, 2000, and January 10, 2001).6 In particular, appellees sought the identity of the batches of resins that were returned by appellant’s customers. Appellant responded to this request, “Unknown. [25]*25No records were kept of the returns.”7 In fact, appellant could not identify when the batches were returned or provide a list of customers who received the allegedly tainted batches.8 Appellant’s quality control manager, Joseph D’Alessandro, testified that there was no odor present in the sample retained by appellant.9 Furthermore, Mr. D’Alessandro testified that he did not recall any of the returned samples being kept.10

Trial was scheduled for November 5, 2001. On October 25,2001, despite the fact that the discovery deadline expired in March 2001, counsel for appellant notified his opponent that samples of the subject resins had finally been located and were available for testing.

On October 31, 2001, this court granted appellees’ motion for summary judgment. An appeal of that order was filed on November 29, 2001, and appellant, in its Rule 1925(b) statement of matters complained of on appeal, raises several issues.

Appellant argues that the court erred by granting summary judgment based on spoliation of the evidence because the evidence that was allegedly destroyed was not the defective product that is the subject of the litigation. Appellant further contends that the evidence sought by appellee is in existence and available for testing. Finally, appellant argues that the court’s dismissal of its lawsuit, [26]*26for appellant’s discovery delays, was too harsh of a sanction based upon the Third Circuit’s test for appropriate sanctions in spoliation cases.

The principles governing a motion for summary judgment are well-settled. Summary judgment may be granted when the pleadings, depositions, interrogatory answers, admissions, affidavits, and expert reports, if any, show that there is no genuine issue as to any material fact and that the record entitles the moving party to judgment as a matter of law. Pa.R.C.P. 1035.1 and 1035.2. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the moving party. Breslin by Breslin v. Ridarelli, 308 Pa. Super. 179, 454 A.2d 80 (1982). The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Elder v. Nationwide Insurance Co., 410 Pa. Super. 290, 599 A.2d 996 (1991). Once a motion for summary judgment is made and is properly supported, the non-moving party may not simply rest upon the mere allegations or denials in her pleadings. Pa.R.C.P. 1035.3. The non-moving party must set forth specific facts showing that there is a genuine issue for trial. Curran v. Children’s Service Center of Wyoming County Inc., 396 Pa. Super. 29, 578 A.2d 8 (1990). The purpose of Pa.R.C.P. 1035 is “to assure that the motion for summary judgment may ‘pierce the pleading’ and to require [27]*27the opposing party to disclose the facts of his claim —” Roland v. Kravco Inc., 355 Pa. Super. 493, 513 A.2d 1029 (1986). (emphasis omitted)

“A party which reasonably anticipates litigation has an affirmative duty to preserve relevant evidence.” Bowman v. American Medical Systems Inc., 1998 WL 721079 (E.D. Pa.), (citing Baliotis v. McNeil, 870 F. Supp. 1285, 1290 (M.D. Pa. 1994)). In Roselli v. General Electric Co., 410 Pa. Super. 223, 599 A.2d 685 (1991), the Superior Court held that when a plaintiff voluntarily disposes of the product which he claims is defective, summary judgment in favor of the defendant is appropriate. The Roselli court stated:

“To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiff’s attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.” Id. at 228, 687-88 (citing Martin and Greenspan v. Volkswagan of America, no. 88-8261, 1989 WL 81296 (E.D. 5 Pa. July 13, 1989)).

In Troup v. Tri-County Confinement Systems Inc., the Superior Court found that “a plaintiff’s willful and knowing destruction of evidence is sufficient to warrant sanctions. . .

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Related

Baliotis v. McNeil
870 F. Supp. 1285 (M.D. Pennsylvania, 1994)
Schroeder v. Com., Dept. of Transp.
710 A.2d 23 (Supreme Court of Pennsylvania, 1998)
Wolloch v. Aiken
756 A.2d 5 (Superior Court of Pennsylvania, 2000)
Curran v. Children's Service Center of Wyoming County, Inc.
578 A.2d 8 (Supreme Court of Pennsylvania, 1990)
Thompson Coal Co. v. Pike Coal Co.
412 A.2d 466 (Supreme Court of Pennsylvania, 1979)
Troup v. Tri-County Confinement Systems, Inc.
708 A.2d 825 (Superior Court of Pennsylvania, 1998)
Roland v. Kravco, Inc.
513 A.2d 1029 (Supreme Court of Pennsylvania, 1986)
Elder v. Nationwide Insurance
599 A.2d 996 (Superior Court of Pennsylvania, 1991)
Roselli v. General Electric Co.
599 A.2d 685 (Superior Court of Pennsylvania, 1991)
Breslin by Breslin v. Ridarelli
454 A.2d 80 (Superior Court of Pennsylvania, 1982)
Croydon Plastics Co. v. Lower Bucks Cooling & Heating
698 A.2d 625 (Superior Court of Pennsylvania, 1997)
Dansak v. Cameron Coca-Cola Bottling Co.
703 A.2d 489 (Superior Court of Pennsylvania, 1997)

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Bluebook (online)
56 Pa. D. & C.4th 22, 2002 Pa. Dist. & Cnty. Dec. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brotech-corp-v-delmarva-chemicals-inc-pactcomplphilad-2002.