Frey, J. v. Gold, B.

• Court: Superior Court of Pennsylvania
• Decided: October 20, 2017
• Docket: 1158 WDA 2016
• Status: Unpublished

Opinion

J-A16011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN R. FREY, H. ELAINE FREY, IN THE SUPERIOR COURT ROBERT G. FREY, SUE FREY, JAMES OF MILLER, AND ROBIN MILLER PENNSYLVANIA

v.

BONNY GOLD, DENNIS GOLD, SLURRY TECHNOLOGIES OPERATING, LLC, SLURRY TECHNOLOGIES OPERATING, INC., PILGRIM ENERGY COMPANY, PILGRIM COAL COMPANY, CHARLES MUSE, A.C. MUSE, ENSUM PARTNERSHIP NO. 2, SLURRY TECHNOLOGIES, INC., AGGREGATE SOLUTIONS, INC., ALBERT C. MUSE/REPRESENTATIVE OF THE ESTATE OF CHARLES H. MUSE, JR., DECEASED, ALBERT C. MUSE/REPRESENTATIVE OF THE ESTATE OF CHARLES HOWARD MUSE, JR.

APPEAL OF: BONNY GOLD, DENNIS No. 1158 WDA 2016 GOLD AND SLURRY TECHNOLOGIES OPERATING, LLC

Appeal from the Judgment Entered July 6, 2016 In the Court of Common Pleas of Venango County Civil Division at No: 2002-00232

BEFORE: , STABILE, J., FORD ELLIOTT, P.J.E. and STRASSBURGER,* J.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 20, 2017

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A16011-17

Appellants, Bonny Gold, Dennis Gold, and Slurry Technologies

Operating, Inc (collectively, “Appellants”), appeal from the July 6, 2016

judgment in favor of Appellees John R. Frey, Elaine Frey, Robert G. Frey,

James Miller, and Robin Miller. We affirm.

The trial court’s opinion, which we quoted at length in the companion

case (1120 WDA 2016) sets forth the relevant facts and procedural history.

At this docket number, Appellants challenge the trial court’s discovery

sanctions. The trial court issued a series of sanctions against Appellants

during the course of this litigation, culminating in an order preventing

Appellants from contesting liability. As set forth at docket number 1120 of

2016, the jury returned a substantial award of damages in favor of Appellees.

Here, Appellants challenge several of the trial court’s pre-trial orders imposing

discovery sanctions.

In essence, Appellants argue that they consistently attempted to comply

with Appellees’ discovery requests; that certain documents were never in their

possession and that Appellees were aware of that fact; and that the trial

court’s various sanctions against them were excessive and not warranted

under applicable law. Before its final sanction—precluding Appellants from

contesting liability—the trial court conducted a lengthy hearing, after which it

rejected the factual bases for Appellants’ arguments. In particular, the trial

court found that the “Gold Defendants have attempted numerous times to

fabricate documents or utilize documents already in existence in order to

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prove they have purged themselves of contempt.” Trial Court Opinion,

10/7/16, at 21. In essence, the trial court concluded that Appellants were

dishonest, and that they led Appellees on a wild goose chase throughout years

of unnecessarily protracted discovery.

We recognize that appellate review of an order terminating litigation for

discovery sanctions is “stringent.” Cove Centre, Inc. v. Westhafer Const.,

Inc., 965 A.2d 259, 261 (Pa. Super. 2009).

Generally, imposition of sanctions for a party's failure to comply with discovery is subject to the discretion of the trial court as is the severity of the sanctions imposed. Nevertheless, the court’s discretion is not unfettered; since 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 together with the necessity of the sanction.

Mindful, of course, that each factor represents a necessary consideration and not a necessary prerequisite, this Court has outlined the following factors:

(1) the nature and severity of the discovery violation;

(2) the defaulting party's willfulness or bad faith;

(3) prejudice to the opposing party;

(4) the ability to cure the prejudice; and

(5) the importance of the precluded evidence in light of the failure to comply.

Id.

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We have reviewed the record, the applicable law, the trial court’s

opinions and the parties’ briefs. We conclude that the trial court’s opinions of

October 7, 2016, at pages 27-35, and the trial court’s entire opinion of

November 26, 2012, thoroughly analyze the applicable law and the evidence

of record. We affirm the judgment on the basis of those opinions, and order

that a copy of each be filed along with this memorandum.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/20/2017

-4- Circulated 09/29/2017 02:37 PM Circulated 09/29/2017 02:37 PM