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TEVELSON v. LIFE & HEALTH INS. CO. OF AMERICA

August 20, 1986

THEODORE TEVELSON
v.
LIFE AND HEALTH INSURANCE COMPANY OF AMERICA



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, S.J.

 Plaintiff Theodore Tevelson brought this action against Life and Health Insurance Company of America (Life and Health) pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The action was tried before a jury in January 1986, and the jury found through special interrogatories that defendant willfully discriminated on the basis of age in discharging plaintiff. The jury awarded back pay amounting to $23,513 and front pay amounting to $177.00. On the basis of the finding of willfulness, the court entered a verdict in favor of the plaintiff in the amount of $ 47,203.00, representing front pay plus double back pay.

 I. Plaintiff's Motion to Strike

 The pattern of dilatoriness in this action dating from its inception has been appalling. Defendant failed to provide timely responses to discovery, failed to file its pretrial memorandum on time and failed to file an answer to the plaintiff's complaint for almost two years. See Memorandum and Order, May 3, 1985 (Docket Entry No. 24). On May 3, 1985 the court ordered counsel for defendant to pay plaintiff $500 sanctions in connection with the failure to file an answer to the complaint.

 Despite the astounding pattern of dilatoriness, striking defendant's post trial motions is not the appropriate sanction for defendant's failure to timely file its brief. The Third Circuit Court of Appeals has repeatedly stated that sanctions denying the opportunity for cases to be resolved on their merits are to be avoided where possible. See, e.g., Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 867 (3d Cir. 1984). The "preferable sanction for [a] pattern of attorney delay . . . [is] to impose the excess costs caused by such conduct directly upon the attorney, with an order that such costs are not to be passed on to the client, directly or indirectly." Id. at 869.

 Defendant retained new counsel for trial of this matter after the court awarded sanctions in connection with the failure to file an answer. Current counsel cannot be charged with responsibility for past abuses in this case, but given his knowledge of the history of this case, he should have been particularly careful to avoid the situation that has arisen.

 The trial transcripts were completed and filed on March 18, 1986. The court ordered defendant to file its brief on the post trial motions by April 25, 1986. The court signed and approved a stipulation extending the date for filing of defendant's brief to May 2, 1986. No further extensions have been granted.

 On May 28, 1986, plaintiff's counsel sent defense counsel a letter noting that the time to file had passed and demanding payment on the judgment. Defense counsel responded to that letter on June 2, 1986 by letter stating in part:

 
Last week I sustained rather severe burn injuries as a result of a fire and explosion at my home. Quite to my surprise, when I returned to my office today, I found your letter of May 28, 1986 stating you had not received the supporting Memorandum to my earlier filed Motion for New Trial and Judgment Notwithstanding the Verdict. This document, which had been prepared and forwarded to you and the Court approximately one month ago, evidently has not reached either you, the Clerk or the Judge, and accordingly, I am taking immediate steps to have the Memorandum copied, collated and forwarded to you immediately.

 The memorandum was not received by plaintiff's counsel or by the court immediately following this letter. Over one month later, on July 15, 1986, plaintiff filed his motion to strike or dismiss defendant's post trial motions. On July 25, 1986, defendant filed a response to plaintiff's motion to strike along with the brief on its post trial motions. Defense counsel explained the delay as follows: "The inadvertent actions of defendant's counsel in not submitting the previously completed brief were engendered by counsel for defendant's absence from his office on a full-time basis due to serious injuries received in an accident, including second and third degree burns of his face and arms."

 In accordance with the dictates of Poulis, it is inappropriate to strike defendant's post trial motions in this situation, but defendant's counsel should bear the excess costs caused by his conduct. Defendant's ...


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