Appeal from the Judgment Entered July 23, 2007 In the Court of Common Pleas of Perry County Civil Division at No. 2005-247.
The opinion of the court was delivered by: Bender, J.
BEFORE: ORIE MELVIN, BENDER and FITZGERALD*fn1, JJ.
¶ 1 Westhafer Construction, Inc. (Westhafer) appeals the judgment entered in favor of Cove Centre, Inc. (Cove Centre) following imposition of discovery sanctions by the trial court. The court's order declared requests for admission to be admitted, precluded expert testimony, and entered judgment for the amount disputed by the parties in the sum of $293,701.76. Westhafer contends that the court's order constitutes an abuse of discretion as the court imposed the sanction without first allowing the defendant to be heard or entering an order compelling discovery. The trial court, upon reconsideration of the order, concluded that it had erred but determined that it was divested of jurisdiction given the pendency of an appeal before this Court. Upon review, we conclude that entry of the order did exceed the court's discretion under the circumstances. Accordingly, we reverse the order, vacate the judgment, and reinstate the underlying action.
¶ 2 This matter arose as a consequence of Westhafer's failure to file timely responses to Expert Witness Interrogatories and Requests for Admission ostensibly served on Westhafer on April 25 and May 31, 2007. Cove Centre issued both discovery requests after withdrawal by Westhafer's former counsel on April 18, 2007, and they remained unanswered through August 2007, when Westhafer retained new counsel. In the interim, on July 20, 2007, Cove Center filed a Motion for Sanctions against Westhafer for its failure to respond to discovery. Three days later, without the benefit of a Motion to Compel, oral argument, or an evidentiary hearing, the trial court granted Cove Centre's Motion and entered an order deeming the Requests for Admissions admitted, precluding Westhafer from presenting expert testimony, and entering judgment against Westhafer for the entire amount in dispute, some $293,701.76. Thereafter, on August 4, 2007, Westhafer retained new counsel and, upon checking the docket, counsel discovered the earlier discovery sanction. Counsel first sought a stay of execution on the judgment and then, on August 14, 2007, filed a Motion for Reconsideration and Memorandum of Law, followed one week later by a Notice of Appeal to this Court to preserve Westhafer's right to appellate review. Subsequently, the trial court stayed execution of the judgment and scheduled a hearing on Westhafer's Motion for Reconsideration to convene October 4, 2007.
Following the hearing, by order of October 26, 2007, the trial court issued a memorandum and order addressing the issues of reconsideration and jurisdiction, which stated "to the extent this Court has the authority to do so, reconsideration of this Court's order of July 23, 2007 is GRANTED." In a subsequent memorandum, filed on February 4, 2008, the court conceded that it could not support the order of July 23, 2007: "[I]n in our judgment, the Order should not have [been] entered at the time it [was] entered and under the circumstances it [was] entered. It should have been the subject of further inquiry . . . ."
¶ 3 On this appeal, Westhafer raises the following questions for our review:
1. Whether the [trial] court erred in entering judgment and ordering sanctions against Westhafer Construction, Inc. ("Westhafer")?
2. Whether the [trial] court failed to comply with Pa.R.C.P. 208.3 by entering an Order which granted relief to the moving party without giving Westhafer an opportunity for argument?
3. Whether the [trial] court failed to comply with Perry/Juniata County Local Rule of Civil Procedure 208.3(a)(5) by entering an Order which grants relief to a moving party without giving Westhafer an opportunity for argument or evidentiary hearing?
Brief for Appellant at 4.
¶ 4 Westhafer's questions challenge the trial court's entry of a discovery sanction that terminated the underlying litigation. Under these circumstances appellate review is stringent. See Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997); Steinfurth v. LaManna, 590 A.2d 1286, 1288-89 (Pa. Super. 1991) (recognizing "strict scrutiny" standard of review where discovery sanction imposed is tantamount to dismissal of underlying action). 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. See Reilly v. Ernst & Young, LLP, 929 A.2d 1193, 1199 (Pa. Super. 2007); Croydon Plastics Co., 698 A.2d at 629. 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." Stewart v. Rossi, 681 A.2d 214, 217 (Pa. Super. 1996). 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. See id., see also Steinfurth, 590 A.2d at 1289.
Mindful, of course, that each factor represents a necessary consideration and not a necessary prerequisite, this Court has ...