author: CLELAND, J.,

text:
    Commonwealth v. Sandusky

      C.P. of Centre County,
    No. CP-14 CR-2421-2011.
    Frank Fina, for Commonwealth.
    Norris E. Gelman, Joseph L. Amendola, for defendant.
    June 4, 2012
   CLELAND, J.,

It occasionally happens that judges are presented with complicated, even controversial, motions on the eve of trial. One such set of motions has been presented by several of the alleged victims in this case, referred to as victim numbers 3, 4, 5, and 7, and supported by an amicus brief presented by various national and state victims’ organizations.

The alleged victims, who have heretofore been identified only by numbers, ask that during the trial of the case their identity be concealed, that they be permitted to use a pseudonym, and that steps be taken to restrict any distribution of their personal information.

I could rule on the motions with the entry of a summary order and without any reasoned statement to support the order. It seems unwise to do so in this case, however, because the motions have a sympathetic appeal and to dismiss them without any explanation might lead to confusion and misunderstanding. I understand, of course, that the fuller, and final, analysis and explanation of the issue must await the considered judgment of our appellate courts, and perhaps the legislature.

While I have not formally sought the position of counsel for the Commonwealth and the defendant, I have discussed the issue with them in conferences during the progress of the case, and as recently as last Wednesday in the final pretrial conference after these motions were filed. Counsel for the defendant has not expressed an objection to the alleged victims’ request. Counsel for the Commonwealth represented to the court that they have discussed this issue with all of the alleged victims, and explained to them that it is the Commonwealth’s position that the motions have no legal basis.

Having considered the issue, it is my view that there is no support in Pennsylvania law for offering anonymity to an adult witness because the witness is one of a class of victims of a particular form of crime. It may well be in a specific and unique case that a particular witness, for any number of reasons, ought to be protected with a pseudonym. But only one of the alleged victims who filed such a request in this case supported it with evidence of potential harm, and even that affidavit asserted the kinds of generalized traumatic impact from testifying that would occur to any patient in treatment.

During the pre-trial phases of this case all reasonable efforts have been made by the court and by counsel both for the defendant and Commonwealth to protect the identity of the alleged victims. That effort will continue through jury selection. While I will make eveiy effort to be sensitive to the nature of the alleged victims’ testimony, once the trial begins the veil must be lifted.

Courts are not customarily in the business of withholding information. Secrecy is thought to be inconsistent with the openness required to assure the public that the law is being administered fairly and applied faithfully. Consequently, there must be justifications of public policy that are very deep and well-rooted to support any measure which interferes with the public’s ability to observe a trial and to make their own judgments about the legitimacy of their legal system and the fairness of its results.

Under our system of criminal law charges are brought against a defendant for conduct that offends “the peace and dignity of the Commonwealth.” It is old language that reflects an ancient value: ours is not a system of private retribution carried out at public expense. A criminal prosecution is not brought to vindicate the rights of only a victim of crime, but to vindicate the rights of the public as a whole to live secure and peaceful lives. A prosecutor’s duty is to use the resources of the office to promote the public good in its many manifestations, not only to obtain private retribution for a specific victim.

Because the purpose of our criminal justice system is to protect our collective welfare, every citizen has a civic duty to participate in the operations of the system to assure it works for our collective benefit — as a witness, as a juror, even as an observer in the courtroom. As citizens we have certain responsibilities to protect the safety and security of the community as a whole, and to that end each of us has a duty to the community to testify when called to do so regarding the facts of an alleged crime — no matter how personally unpleasant fulfilling that duty may be.

I understand that such theoretical considerations may be of little comfort to an alleged victim for whom the experience of testifying will be intensely personal. Nevertheless, it is important to remember why we ask witnesses to do what they do.

It is argued in the motions that for an alleged victim of a sexual assault to fulfill that responsibility is so uniquely embarrassing that the person should be protected by being able to conceal his name. But why should only that class of witnesses be protected? No victim of crime, after all, is spared the trauma of crime’s effects — and the severity of the trauma does not necessarily mirror the nature of the crime. Even “minor” crime can have major psychic consequences. Arguably any victim of any crime would prefer not to appear in court, not to be subjected to cross-examination, not to have his or her credibility evaluated by a jury — not to put his name and reputation at stake. But we ask citizens to do that every day in courts across the nation.

Given the circumstances of this specific case, counsel and the court will cooperate when possible to protect the privacy of all witnesses, to protect their personal information, and to be sensitive to challenges presented by the nature of the testimony that will be offered.

Of course, it is also to be hoped that various news organizations that will report on the trial will use what has become their professional custom to protect the privacy of alleged victims.

Therefore, I enter the following:

ORDER

And now, June 4th, 2012, in consideration of the foregoing, it is ordered as follows: The motions of alleged victims 3, 4, 5, and 7 requesting that they be permitted to testify using a pseudonym is denied.

The defendant has filed a motion asking that I direct the Commonwealth to permit him to copy all juror information collected by the Office of Attorney General in its preparation for jury selection.

He asserts that “it is fundamentally unfair and a violation of his due process and equal protection rights under both our state and federal constitutions” if the Commonwealth has used its “unlimited investigative, financial, and governmental resources” to collect juror background information and does not share it with him. (Defendant’s motion, para. 19).

In support of his request for information “which he believes may be in the possession of the Commonwealth” (para. 24) (emphasis added), he has attached to his motion an anonymous letter containing what is purported to be an account of what information the Commonwealth has collected. The defendant argues that although the letter is anonymous it bears some indicia of credibility because attached to it is a copy of a letter which was attached to the jury pool list when it was distributed to counsel.

In reply, the Commonwealth denies that it had its “investigators improperly peering into their (jurors’) private lives.” (Commonwealth Response, p.2). The Commonwealth argues that any information it has collected is no more “than what any diligent defense attorney would collect.” (ftn. 2); that its background material is protected from disclosure by the work product privilege; and the defendant’s motion is factually baseless.

Defense counsel asks that I schedule a hearing on his motion to permit him to inquire whether or not the Commonwealth has collected information which should be provided to the defense. In an exchange of e-mails between the court and counsel, defense counsel acknowledges, as I understand it, that he believes the anonymous letter is credible but he can produce no witness who can testify in support of the allegations of his motion. Instead, he proposes to call as a witness an attorney for the prosecution, as on cross-examination, and inquire about the collection of any such juror background information.

The first question to be addressed is whether an anonymous letter to defense counsel asserting how the Commonwealth has used its investigative, governmental and financial resources triggers the right to have a hearing to permit defense counsel to investigate whether the statements in the letter are true.

The act of filing a motion does not necessarily entitle a party to a hearing. Rule 575(A)(2)(c) of the Pennsylvania Rules of Criminal Procedure (Pa.R.Crim.P.) requires any motion to “state with particularity the grounds for the motion” and “the facts that support each ground.” Subsection (g) continues that “if the motion sets forth facts that do not already appear of record in the case, the motion shall be verified by the sworn affidavit of some person having knowledge of the facts, or by the unsworn written statement of such a person that the facts are verified subject to the penalties for unsworn falsifications under the crimes code....”

In short, a motion filed by counsel must be supported by allegations of fact backed up with some credible basis to believe the allegations to be true, otherwise the court and counsel can be engaged in chasing chimeras.

The defense motion is not supported by either verification or affidavit regarding the truth of the underlying facts it alleges, as required by Pa.R.Crim.P. 575. Therefore, I will decline to hold a hearing at which defense counsel would attempt to develop facts to support his allegations. The design of the rules intends that counsel must have some factual basis to support a motion before it is filed and not attempt to develop those facts after it is filed.

The Commonwealth further argues that any juror background information it had developed is protected by the “attorney work product privilege” and need not be turned over to the defense.

It is “black letter law” and requires no citation to authority to state that a court is not required to hold a hearing when the facts alleged in the petition, even if proven to be true, would not entitle the petitioner to the requested relief. Even if the facts as alleged in the defense motion were correct, I do not believe, under the current state of the law, that the defendant would be entitled to the relief he seeks — access to the Commonwealth’s jury research — because the defense simply has no constitutional due process right to get the information.

Jury background information, at least to the extent the defense asserts it has been collected by the Commonwealth in this case, is subject to the work product privilege.

There is very little case law on point, and much of it predates the modem view that the Commonwealth has a duty under Brady v. Maryland and its progeny, as embodied in our rules of criminal procedure, to disclose certain types of information.

The work product privilege was established in Hickman v. Taylor, 329 U.S. 495 (1947) in recognition that in preparing a client’s case it is necessary for an attorney to maintain a “certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Id. at 510-511. An attorney’s collection of jury background material clearly falls within the category of “work product” under Pennsylvania law. Pa.R.Crim.P. 573 (G); Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939 (Pa. 2005).

But categorizing material as “work product” does not necessarily mean it is not discoverable by opposing counsel under sixth amendment due process considerations. The work product privilege is not absolute. “It is an intensely practical one, grounded in the realities of litigation in our adversary system.” United States v. Nobles, 422 U.S. 225, 238 (1975).

One must ask, therefore, whether it transcends due process to permit the prosecutor to develop juror information that a defendant cannot afford to produce on his own? As a practical matter, this is the question that underlies the defense motion. The question implicates an examination of the boundaries of due process, but the boundaries of due process are not easily fixed. Due process is not a static concept: it evolves over time. Nevertheless, the defendant has cited no case law to support his request.

The desire to collect information about prospective jurors has gone on from the days of the origins of the jury system. It is part of our human nature to want to know something about the people who will be making judgments that affect us — political officials, sports referees, judges, and certainly jurors, among others. Indeed, it may be argued that counsel, in fulfilling their duty of candor to the court, have a duty to make some level of inquiry, either before or during voir dire, regarding whether prospective jurors are qualified under the law to serve.

Our system of justice depends on a jury composed of citizens who take an oath to “well and truly” try the matter before them. As a society, we rely on our fellow citizens to reach a verdict based on the evidence presented in the courtroom. While it may be theoretically helpful to have background information that might be used to predict how a particular juror might view the issues in a particular case, and then apply that knowledge to select jurors perceived to be favorable to one side or the other, the practical fact is that jurors are not automatons.

We should not lose sight of the fact that the social dynamic of the jury tends to subsume individual opinions into the collective analysis of the whole, thereby lessening the impact of any one juror and decreasing the importance of knowing with precision their individual backgrounds. Indeed our faith in the jury system is predicated on that premise.

A juror’s opinions are shaped by many things: life experiences, age, sex, marital status, education, employment, among others — but ultimately our society’s faith in the jury system rests on the sure confidence that the jury’s collective judgment is shaped by the deliberative process of sifting and sorting evidence that has been presented in a courtroom according to the longstanding law of evidence, and guided by the judge’s instructions about the application of the law.

Jurors enter into their deliberations carrying with them not just their own unique life experience, but also their shared experience during the trial. As a result, the jury becomes a unique social institution and takes on a life of its own. The individual opinions of its independent members become melded into a collective expression of the community’s wisdom — the jury’s verdict.

Each side in a trial rightfully attempts to select jurors it thinks will bring some unique perception, experience, or understanding to that side’s theory of the case, and hoping the juror will be helpful to it in some way. Predicting, however, how any one person will vote in the jury room is far from an exact science, and, therefore, refusing to order the Commonwealth to share such information cannot be said to be fundamentally unfair. As a result, even if the Commonwealth collected the information in this case in the manner the defense asserts and which the Commonwealth denies, I do not believe that the information is constitutionally required to be turned over to the defense; and the motion asking me to do so will be denied.

ORDER

And now, June 4, 2012, in consideration of the foregoing memorandum, and upon consideration of the defendant’s motion to compel the commonwealth to provide defendant with requested pre-trial discovery materials, filed May 30, 2012, and the Commonwealth’s response, it is ordered as follows:

Motion denied.

“Non-party media entities” (referred to in this memorandum collectively as “media”) have filed an expedited motion to intervene and to clarify the court’s May 30, 2012 decorum order which, in part, controls conduct of reporters in the courtroom during the trial of this case. Specifically Media seeks a clarification of paragraph 7 of the order regarding the use of electronic devices.

For reasons explained in this memorandum, the motion to intervene will be granted, but the motion to clarify the decorum order will be denied. The decorum order, however, will be modified in response to the media’s motion.

Factual Background:

On May 30,20121 entered a “decorum order governing jury selection and trial.” The order establishes policies for the public and press who wish to attend the trial in this matter. Specifically regarding the media, the order details, among other things, the allocation of reserved media seating in the courtroom, the creation of a satellite courtroom reserved exclusively for media use, location of interviews, permission for reporters to carry backpacks into the courtroom, press credentialing processes, and a procedure to assign pool reporters to cover jury selection. The text of the full order is available on the court’s website: www:co.centre.pa.us/media.

Paragraph of the May 30, 2012 decorum order reads as follows:

7. Electronic Devices:
a. No member of the public will be permitted to posses in courtroom 1 any cell phone, laptop computer, smart phone, or similar electronic device. Anyone possessing such a device will not be permitted to pass security and enter the courthouse.
b. Only reporters with proper credentials, as determined by the Sheriff, will be permitted to possess or use in courtroom 1 or the satellite courtroom any cell phone, laptop computer, smart phone, or similar electronic device. Such devices may be used during trial for electronic based communications. However, the devices may not be used to take or transmit photographs in courtroom 1 of the satellite courtroom; or to record or broadcast any verbatim account of the proceedings while court is in session, (emphasis in the original).

The decorum order was entered after I met on May 15, 2012 with reporters representing both the print and electronic media in a committee formed by the Pennsylvania Association of Broadcasters (“PAB”) and the Pennsylvania Newspaper Association (“PNA”) which was created to anticipate and resolve media coverage issues that might arise during trial. I had also met previously with technical representatives of the electronic media to understand their concerns about coordinating the parking of satellite uplink trucks, problems in running electronic cabling, and Internet connectivity issues.

These meetings were part of an on-going series of media-court meetings that began even before the preliminary hearing in this case. The original decorum order, which controlled the preliminary hearing arrangements, was entered on December 6, 2011 and was drafted with considerable, and appreciated, technical assistance from the PAB and the PNA. The original order, which prohibited any form of electronic communications from the courtroom, was subsequently modified to permit it in an order dated December 12,2011.

The essential terms of that order have remained in place and have governed each subsequent hearing and argument that I have conducted since the preliminary hearing. At the beginning of each hearing I have cautioned all reporters present in the courtroom that the order prohibited the simultaneous, verbatim transmission of any proceedings in the courtroom, and that a violation of the prohibition could result in sanctions including loss of media credentials for the reporter and his or her media outlet. (See, for example, the order date February 6,2012; paragraph l(d)(iii): “...Such devices, however, may not be used to take or transmit photographs in the courtroom, or to record or transmit any verbatim account of the proceeding.”)

Controlling Authorities:

The Supreme Court of Pennsylvania has promulgated Rule of Criminal Procedure 112. The Rule is titled: “publicity, broadcasting, and recording of proceeding.”

Paragraph (A) of the rule provides:

“The court or issuing authority shall:
(1) prohibit the taking of photographs, video, or motion pictures of any judicial proceedings or in the hearing room or courtroom or its environs during the judicial proceeding; and
(2) prohibit the transmission of communications by telephone, radio, television, or advanced communication technology from the hearing room or the courtroom or its environs during the progress of or in connection with any judicial proceeding, whether or not the court is actually in session.”

Paragraph (C) of the Rule provides:

“Except as provided in paragraph (D), the stenographic, mechanical, or electronic recording, or the recording using any advanced communication technology, of any judicial proceedings by anyone other than the official court stenographer in a court case, for any purpose, is prohibited.” In addition, canon 3(7) of the code of judicial conduct, also adopted by the Supreme Court of Pennsylvania, reads:
“Unless otherwise provided by the Supreme Court of Pennsylvania, judges should prohibit broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adj acentthereto during sessions of court or recesses between sessions....”

While the literal text of rule 112 and canon 3(7) might be read to prohibit electronic based communications such as tweeting and texting, I determined that the rule must be read in the context of a definition of the term “broadcasting” since the title of rule 112 specifically uses that word, as does canon 3. In the context of the rule and the canon, my interpretation of the term “broadcast” meant that it prohibited the simultaneous transmission of a verbatim account of the proceeding and, therefore, the rule would not prohibit tweeting or texting as long as the communication did not include a verbatim account. As noted, I have cautioned reporters at each argument or hearing of this restriction.

While several other Pennsylvania trial judges have adopted similar interpretations of the rule and canon and permitted tweeting, micro blogging or similar electronic communication from the courtroom, the Criminal Procedural Rules Committee described this as a “misinterpretation” of the rule. Personal Communications Devices in the courtroom report dated 1/10/2012, p. 24. The committee’s report sought comment on a proposed rule that would explicitly ban such conduct.

Because my interpretation of the term “broadcast” would not include a prohibition of electronic communication per se, I concluded that whether to permit electronic communication, and in what form, was left to the sound discretion of the trial judge. It could reasonably be anticipated that given the definition of “broadcast” as I applied it a judge’s decision about whether to permit such electronic communication could vary from trial to trial, even during a trial, and depend on a variety of factors that might impact the judge’s ability to assure a fair trial could be conducted.

Media Motion:

The media motion recites that their representatives, upon questioning the court communications manager of the administrative office of Pennsylvania, were advised that verbatim accounts of what was said in court were prohibited by the decorum order. (para. 4). The motion then asserts, “The AOPC’s interpretation is inconsistent with the text of the order and this court’s previous orders governing pretrial proceedings....” (para. 5).

The media argues “the use of such (direct) quotations in the electronic based communication from the courtroom should not be restricted because:

It would “risk diminishing the accuracy of reports on the trial.” (para. 7).
Prohibiting the use of direct quotations is impractical and difficult to implement and “(t)here is no workable way for reporters to avoid using any direct quotes in their text-based reports...” (para. 8).
“Using direct quotes in reports from the courtroom does not prejudice any interest or in any way impede the judicial process.” (para. 9).
“(A)ny restriction on reporting direct quotations would be unconstitutional.” (para. 10).

The bullet points merely summarize the more extended arguments made in support of the Media’s request that I clarify paragraph 7 of the decorum order. The Media seeks assurance that they may “include direct quotations from the proceedings in their electronic based communications while court is in session.” (wherefore clause).

Analysis:

While I was comfortable with my interpretation of Rule 112 and Canon 3(7), I clearly understood that my definition of “broadcast” might be pushing the boundaries of the Rule and Canon to their limits. Clearly the Criminal Rules Committee thought so.

Permitting reports from the courtroom while court is in session did not, in my view, constitute “broadcasting” as long as the reports did not contain simultaneous verbatim quotations. It is readily apparent from the allegations in the Media’s motion, however, that the standard I applied in my definition is confusing to reporters, unworkable, and, therefore, likely unenforceable.

If reporters are permitted to electronically transmit reports from the courtroom while court is in session and which contain verbatim accounts of the proceedings, it cannot be considered anything other than exactly the kind of broadcasting explicitly prohibited by the rule.

Therefore, based on the Media’s own arguments, I am compelled to rescind paragraph 7 of the decorum order. While I will permit reporters to bring their electronic “tools of the trade” into courtroom 1 and the satellite courtroom, they must not be in a mode that permits transmission of any form of communication to any person or device either in or out of the courthouse or courthouse annex.

Accordingly, I enter the following:

ORDER

And now, June 4, 2012, in consideration of the foregoing, it is ordered as follows:

1. The non-party media entities motion to. intervene is granted.
2. The requested relief is denied.

It is hereby further ordered that Paragraph 7 of the decorum order dated May 30, 2012 shall be amended to specifically provide that while credentialed reporters admitted to courtroom 1 or the satellite courtroom may possess and use specified electronic devices as “tools of the trade” such devices shall not be set in a mode that permits transmission of any form of communication to any person or device either in or out of the courthouse or courthouse annex.

      . 373 U.S. 83 (1963).

      . The cases have more historical interest than precedential value.

        Commonwealth v. Caplan, 192 A.2d 984 (Pa. 1963); Commonwealth v. Foster, 280 A.2d 602 (Pa. Super. 1971); Commonwealth v. Smith, 326 A.2d 60 (Pa. 1974); Commonwealth v. Schowalter, 352 A.2d 456 (Pa. Super. 1974); Commonwealth v. Galloway, 352 A.2d 518 (Pa. Super. 1975). They demonstrate, however, how far the law has come in requiring counsel to share information to avoid surprise at trial and facilitate preparation, “....the taboo against the ‘fishing expedition’ has yielded increasing to the proposition that the ends of justice require a wider availability of discovery than in the past.” McCormick on Evidence, 6th ed. p. 166.

      . 42 Pa.C.S. 4502

      . They are ABC, Inc. (on behalf of WPVI-TV), Advance Publications, Inc. (publisher of the Harrisburg Patriot-News), The Associated Press, CNN, The Daily Collegian, Dow Jones & Company, Inc. (publisher of The Wall Street Journal), Dow Jones Local Media Group, Inc. (publisher of The Pocono Record), ESPN, NBCUniversial, Inc. (on behalf of WCAU-TV), The New York Times Co. (publisher of The New York Times), Philadelphia Media Network, Inc. (publisher of The Philadelphia inquirer), the Scranton Times, L.P. (on behalf of the Citizen’s Voice and Standard-Speaker), and Tribune Company (on behalf of The Morning Call).

      . While the preliminary hearing was conducted by The Hon. Robert Scott, the Decorum Order was entered on my authority as the assigned trial judge.

      . Paragraph (D) is not relevant to the present discussion.

      . The Decorum order specifically provides that media inquiries should be directed to that office.

      . In fact, the advice given by the Communications Manager was precisely consistent with both my previous written orders and my verbal directions to reporters in open court.


source: Caselaw Access Project

author: NANO VIC, J.,

license: Public Domain

text:
    Lynch v. U.S. Bank, N.A.

      C.P. of Carbon County,
    No. 11-0143.

      Patrick J. Lynch, pro se.

      Diane R. Lynch, pro se.

      Linda A. Michler, for defendants.

    March 6, 2012
   NANO VIC, J.,

Patrick J. Lynch and Diane R. Lynch, plaintiffs in the above-captioned matter, have appealed our order dated December 30,2011, which dismissed, with prejudice, the claims filed by the Lynches against U.S. Bank, N.A., as trustee (“bank”). This opinion is filed in accordance with Pa.R.A.P. 1925(a) (1).

PROCEDURAL AND FACTUAL BACKGROUND

The present case was commenced by complaint filed on January 20, 2011. Preliminary objections which were filed by the Bank on February 14, 2011, were denied by order dated June 16,2011. In essence, we found the nature of the preliminary objections to be premature and more appropriately the subject of affirmative defenses.

On April 25, 2011, prior to our ruling on the bank’s preliminary objections, the bank filed a motion to dismiss pursuant to Pa.R.C.P. 233.1 (frivolous litigation). At the time the preliminary objections were argued on June 16, 2011, we advised the parties that we would not be deciding the motion to dismiss until after the pleadings had been closed.

Our order denying the preliminary objections permitted the bank twenty days from the entry of the order in which to file an answer to the complaint. Prior to the passage of this time, on June 20,2011, the Lynches unilaterally filed a first amended complaint. On July 7, 2011, the bank filed an answer, with affirmative defenses, which was responsive to the first amended complaint. The Lynches’ reply to this new matter was filed on July 19,2011. Argument on the motion to dismiss was held on July 25,2011.

The complaint originally filed by the Lynches, as well as the first amended complaint, seeks to relitigate issues that have previously been decided in former proceedings. The history of these former proceedings are set forth in the bank’s motion to dismiss and form the basis for that motion. This history must be reviewed in order to understand the reason why we dismissed the Lynches’ current suit.

On July 12, 2006, the bank, as trustee for the registered holders of the Asset Backed Securities Corporation, Home Equity Loan Trust 2004-HE6, Asset Backed Pass-Through Certificates, series 2004-HE6, by its attomey-in-fact and servicing agent, Ocwen Loan Servicing, LLC, as successor to Ocwen Federal Bank (hereinafter abbreviated to Trustee) filed a complaint in mortgage foreclosure against the Lynches with respect to property owned by them at 1414 Sweet Briar Lane, Jim Thorpe, Carbon County, Pennsylvania. In paragraph 4 of this complaint, the bank averred that it was the assignee of the mortgage being foreclosed upon and, as such, had standing to commence the foreclosure proceedings. When no answer was filed to the complaint, a default judgment was taken against the Lynches on August 21,2006, in the amount of $190,081.53. No appeal was taken from that judgment. The mortgage foreclosure proceedings are docketed to No. 2223 CY 2006 of this court.

Following a sheriff’s sale of the Lynches’ property, the bank, as Trustee, commenced an ejectment action to have the Lynches evicted from the premises. This action was docketed to 0467 CV 2007 of this court. In that case, by order dated July 16, 2007, the Honorable David W. Addy granted the bank’s motion for summary judgment and ordered the Lynches to vacate the premises at 1414 Sweet Briar Lane, Jim Thorpe, Pennsylvania 18229. No appeal was taken from this judgment.

On February 4, 2008, the Lynches filed multiple motions and claims all docketed to the docket number for the mortgage foreclosure proceedings at 2223 CV 2006, and all directed to the bank as trustee. These consisted of a motion to set aside and vacate the judgment in mortgage foreclosure, a motion to strike the default judgment taken in the mortgage foreclosure action, and a document entitled “Informal Counterclaim or, in the alternative, a complaint for defrauding the court with fraudulent claims of recording assignment.” All had as a common thread that the bank was not the true holder of the mortgage upon which the mortgage foreclosure action was based; that, in consequence, this court was without subject matter jurisdiction to hear the matter; and that all proceedings which occurred in and which grew out of the mortgage foreclosure action were a nullity.

Following a hearing held on March 19, 2008, the Honorable David W. Addy by three separate orders dated May 27, 2008, denied and/or dismissed each of the Lynches’ post-judgment motions and claims. Specifically, the motion to set aside and vacate the judgment, to the extent it sought to strike the judgment in mortgage foreclosure and to set aside the subsequent sheriff’s sale, was denied and, to the extent it sought monetary and equitable relief, was dismissed as procedurally improper. The informal counterclaim and the motion to strike the default judgment, the latter to the extent not previously addressed by the court’s ruling on the motion to set aside and vacate, were dismissed. No appeal was taken from any of these orders.

On August 15, 2008, the Lynches commenced a new action against the bank, as trustee, docketed to No. 2332 CV 2008. In this suit, the Lynches contended, inter alia, that the original promissory note was never validly assigned; that the bank was without standing to commence the mortgage foreclosure action without being assigned this note; that the allegations of assignment of the mortgage in paragraph 4 of the mortgage foreclosure complaint were fraudulent; and that they were entitled to monetary damages for the loss of their home, for damage to their credit history, and for punitive purposes in an aggregate amount in excess of $1,000,000. The Lynches further requested the production of all banking records to support the assignment of the original mortgage and promissory note to the bank. By order dated December 22, 2008, the Honorable David W. Addy dismissed, with prejudice, the Lynches’ complaint on the basis, inter alia, that the action was barred by the doctrine of res judicata and/or collateral estoppel. The Lynches’ request for reconsideration was denied, and no appeal was taken.

In the present suit, the Lynches seek to enforce a discovery request allegedly made to the bank on December 3, 2010, for information establishing the validity of the mortgage and its assignment to the bank (count I), again challenge the validity of any assignment of the mortgage to the bank (count II), and further challenge the validity of the entire loan transaction (count III). In addition to monetary damages, the Lynches request that the judgment of foreclosure taken on August 21, 2006, be stricken. In the Lynches’ concise statement of matters complained of on appeal, the Lynches openly admit that the object of this action is to question and challenge whether the bank was the true owner and holder of the mortgage which was the subject of the mortgage foreclosure action, whether the debt claimed by the bank in those proceedings was valid, and whether this court possessed subject matter jurisdiction to dispose of those issues.

DISCUSSION

As is evident from the foregoing background, this is the fourth in a series of separate suits in which the validity of the mortgage, the bank’s standing to enforce the mortgage, and the question of this court’s jurisdiction to hear the matter has been litigated or could have been litigated. The three prior suits are the mortgage foreclosure action docketed to No. 2223 CV 2006, the ejectment action docketed to No. 0467 CV 2007, and the action filed to 2332 CV 2008. In addition, are the three post-judgment motions the Lynches filed to the mortgage foreclosure action.

At all times, the Lynches have represented themselves in these proceedings. The motion to dismiss filed by the bank is premised upon Pa.R.C.P. 233.1. That rule provides, in relevant part, as follows:

Rule 233.1. Frivolous Litigation. Pro se plaintiff. Motion to dismiss.

(a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that
(1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and
(2) these claims have already been resol ved pursuant to a written settlement agreement or a court proceeding.

Under the principle of res judicata, an action is barred if it shares with a prior action a concurrence of four elements:

(1) an identity of the thing sued upon;
(2) an identity of the cause of action;
(3) an identity of the person and parties to the action; and
(4) an identity of the quality or capacity of the parties suing or sued.

In re Estate of Hillegass, 469 A.2d 221, 223 (Pa.Super. 1983). As further stated in Stuart v. Decision One Mortgage Company, LLC, 975 A.2d 1151 (Pa.Super. 2009):

The fundamental principle upon which [res judicata] is based is that a court judgment should be conclusive as between the parties and their privies in respect to every fact which could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court. The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.’ When ajudgmentby default becomes final, all the general rules in regard to conclusiveness of judgments apply. A default judgment is res judicata with regard to transactions occurring prior to entry of judgment.

Id. at 1153. (citations omitted).

Res judicata requires identity of the thing sued upon, the cause of action forming the basis of the suit, the person or persons involved, and the capacities of such persons or parties. Without question, both in this action and in the mortgage foreclosure action, the Lynches and the Bank are the same parties and positioned in the same capacities. As to the subject matter or purpose of the suits, both involve the same loan transaction, entail a determination of the validity of that transaction, and call into question the parties’ rights vis-a-vis the mortgage and underlying loan. Cf. Stuart, 975 A.2d at 1154 (quoting R. G. Financial Corp. v. Pedro Vergara-Nunez, 446 F.3d 178, 183-84 (1st Cir. 2006). Both contain an identity of the same common nucleus of facts forming the cause of action and, in both, the object of the suit is the same - the identical debt owed by the Lynches as evidenced and secured respectively by the same promissory note and mortgage.

The Lynches in this litigation seek to attack the very transaction upon which the foreclosure judgment was based and the facts upon which are the basis of that attack have not changed. As a practical and very real matter, the whole object of the Lynches’ suit is to undermine the validity of the mortgage foreclosure action and the subsequent execution proceedings.

While it is true, neither the mortgage nor its assignment were challenged directly in the foreclosure action, the Lynches clearly had the right to make that challenge. That they chose not to do so, or to raise any other defense, instead allowing a default judgment to be taken, does not somehow invalidate the application of res judicata. To the contrary, it re-enforces both it and the principle of finality upon which it is based. “Res judicata applies not only to claims that were made but also to claims that could have been made.” Stuart, 975 A.2d at 1152.

In addition to the bar imposed by the foreclosure action, the Lynches face a second bar with respect to Judge Addy’s order docketed to No. 2332 CV 2008 denying, with prejudice, the Lynches’ claims. Again, res judicata bars the action. To this, consideration must also be added the post-judgment motions and claims made by the Lynches which were denied by Judge Addy and never appealed from. Those motions and claims dealt with the same issues the Lynches seek to raise again in these proceedings.

Pa.R.C.R 233.1(a) on its face was intended to deal with the exact scenario before us: a pro se claimant making repeated claims which are the same or so closely related to those previously made that matters essential to recovery in the later proceedings have been determined in the earlier proceedings, and which claims have been previously decided, either explicitly nor implicitly, in the prior proceedings. In sum: frivolous litigation.

CONCLUSION

As outlined above, the Lynches have had ample opportunity to challenge the validity of the foreclosure sale of their property. The underlying issues have been decided multiple times. Finality demands an endpoint which has now been reached. The Lynches have no legitimate basis for their current suit and it has been appropriately dismissed.

      . In their complaint, the Lynches identified the defendant as U.S. Bank, N.A., rather than as U.S. Bank, N.A., in its capacity as Trustee. Given the history of prior litigation between the parties, the subject of that litigation being the same loan transaction at issue here, and the documented capacities in which the parties acted, it is clear that the conduct of the Bank of which the Lynches’ complain was in the Bank’s capacity as trustee, and that the Lynches’ naming of the Bank in their complaint was incomplete. Were this not the case, then, as the recitation of the procedural and factual background evidences, the Lynches ’ claims, if not barred by res judicata, would be barred by collateral estoppel and the principles which underlie Pa.R.C.P. 233.1.

      . The complaint further averred that the assignment was in the process of being recorded. (Mortgage foreclosure complaint, paragraph 4). Since the averments of the complaint made clear that the bank was the holder of the mortgage, as the legal owner and the real party of interest, the Bank’s standing was evident. See U.S. Bank, N.A. vs. Mallory, 982 A.2d 986, 994 (Pa.Super 2009) (“[T]he recording of an assignment of the mortgage was not a prerequisite to [the bank] having standing to seek enforcement of the mortgage via a mortgage foreclosure action.”).


author: MAZER MOSS, J,

text:
    Stewart v. Foxworth

      John J. Martucci Jr., for plaintiff.

      Joshua D. Baker, Donald M. Moser and William D. Longo, for defendants.

      May 24, 2012
   MAZER MOSS, J,

This instant issue is whether we abused our discretion in sanctioning plaintiff’s counsel for failure to attend a rule returnable hearing. For the reasons below, We properly imposed cumulative sanctions of $1300.

Facts and Procedural History

Appellant, John J. Martucci Jr., (“appellant”) is counsel for plaintiff, Josette Stewart. The above captioned matter was initially scheduled for a case management conference (“CMC”) September 9, 2011. On September 9, 2011, we continued said conference to September 19, 2011, notifying all parties that no further continuances would be granted. Notice of Rescheduled Case Management Conference, 09/09/2011. Martucci failed to appear at the rescheduled CMC September 19,2011. Consequently, we granted another continuance and rescheduled the CMC for October 20, 2011, notifying all parties that no further continuances would be granted. Notice of Rescheduled Case Management Conference, 09/19/2011.

Additionally, we sanctioned appellant $100 for having failed to appear on September 19, 2011 and specifically informed him that his “continued failure to appear will result in the imposition of further sanctions including dismissal of this action and/or preclusion.” Order, 09/27/2011. Despite receiving proper notice, appellant failed to pay his $100 sanction within the requisite thirty days. Accordingly, we scheduled a rule returnable hearing for December 12, 2011. Order, 10/27/2011.

Appellant failed to appear at his December 12, 2011 hearing and was further sanctioned $200 in addition to the $100 one. Order, 12/12/2011. We scheduled another rule hearing on the $300 sanction for February 27, 2012. Order, 01/23/2012. At appellant’s request We continued the date to March 12, 2012. Order, 02/29/2012.

In a letter sent 7:40 PM on Sunday, March 11, 2012, appellant notified us he would not attend this third rule hearing on 10:00 AM Monday, March 12,2012. Fax from John J. Martucci Junior, Esquire, Martucci Law Offices, LLC, to Honorable Sandra Mazer Moss, Philadelphia Court of Common Pleas, Pennsylvania (Mar. 11, 2012, 07:40 PM EST) (hereafter Fax, Mar. 11, 2012) (See attached “Exhibit 1”). Appellant’s letter states he had a scheduled appearance in Delaware County Court (It is hard to imagine he was not aware of said appearance on Friday, March 9, 2012). Id. Additionally, he stated he failed to attend the previous hearings due to illness. Id. At 9:05 AM on March 12, 2012, We left two messages notifying appellant his continuance request was denied. Id. Nonetheless, appellant failed to attend. As a result, We imposed a $1000 sanction in addition to the $300 already imposed. Order, 03/12/2012.

He appealed from the sanction issued March 12, 2012. Appellant asserts we wrongfully imposed the cumulative $1300 in sanctions without providing plaintiff an “opportunity to refute any willfulness as a basis for sanctions.” Statement of Matters Complained of on Appeal 05/01/2012, ¶¶ 6(b). Appellant further argues “the trial court abused its discretion and committed error of law in sanctioning plaintiff’s counsel when the trial court was informed of a conflict of the March 12, 2012 rule hearing on or about February 27, 2012 due to a matter already on plaintiff’s schedule.” Statement of Matters Complained of on Appeal 05/01/2012, ¶¶ 6(a).

Discussion

We correctly imposed sanctions upon appellant for failure to appear at a CMC pursuant to Pa. R.C.P. §218. Under Pa. R.C.P. §218(c), “a party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.” Furthermore, pursuant to Pa. R.C.P. §218 mere failure to appear gives the court grounds to sanction as it sees fit.

Pa. R.C.P. §218 infers “counsel is under the same duty to appear at conciliatory or pre-trial conferences as he or she is to appear for trial.” Anderson v. Financial Responsibility Assigned Claims Plan, 637 A.2d 659, 660 (Pa. Super. 1994) (internal citations omitted); See also Kalantary v. Mention, 756 A.2d 671, 674 (Pa. Super. 2000) (stating “Rule 218 governs attendance at pre-trial conferences as well as at trials”). Thus, under Pa. R.C.P. §218 we possess the authority to sanction appellant for failure to appear at the CMC because he offered no excuse for his absence. Id. at 661.

Anderson v. Financial Responsibility Assigned Claims Plan is directly on point. There, the lower court sanctioned plaintiff’s counsel after he failed to appear at a settlement conference which had been rescheduled twice. Id. Therefore, we did not abuse our discretion because sanctions were not imposed upon appellant until he failed to appear a second time on September, 19, 2011, even though we stressed no further continuances would be granted. Notices of Rescheduled Case Management Conference, 09/09/2011 and 09/19/2011.

Appellant offered no excuse for his failure to attend all aforementioned court ordered appearances prior to the letter sent at 7:40 PM the Sunday evening before a Monday morning hearing. Fax, Mar. 11, 2012. His vague reference to an illness is insufficient as he never notified the court of same throughout this entire saga. Id. Moreover, despite providing appellant with ample notice on February 29, 2012, he requested a continuance at 7:40 PM the night before his hearing. Furthermore, the record shows we attempted to contact appellant twice to notify him of our denial before imposing the $1000 sanction. A simple phone call may have avoided the issue. Id. The lower court in Anderson engaged in similar procedural measures prior to sanctioning and found “under these circumstances, it cannot be said that the trial court’s order constituted an abuse of discretion. In the absence of an abuse of discretion, the trial court’s order, according to the decided cases, should be affirmed.” 637 A.2d 659, 661.

Unlike in Shin v. Brenan, where the attorney’s failure to appear at a pretrial conference was inadvertent, appellant’s failure to appear at the twice rescheduled CMC and his failure to appear at the hearings show a clear pattern of disrespect for the court, 764 A.2d 609 (Pa. Super. 2000). Shin found the lower court abused its discretion because:

counsel failed to appear due to an inadvertent mistake, i.e., that counsel failed to note the date of the conference on his calendar [and] the record reveals no attempt on the part of the court to contact counsel before dismissing the appeal. There was no suggestion by the trial court that counsel’s behavior was part of a pattern of misconduct or abuse... The trial court did not conduct a hearing...in which it could have fully reviewed the appropriateness of the dismissal. Most importantly, there is no indication that the trial court gave any consideration to lesser sanctions. Id. at 611.

In direct contrast, we exercised the utmost discretion by graciously accommodating appellant. We twice rescheduled the CMC and granted a continuance for appellant’s rescheduled hearing, despite his failure to appear initially. Furthermore, our sanctions did not prejudice plaintiff, Josette Stewart. Rather, we sanctioned appellant for his pattern of repeatedly ignoring court orders.

In James C. Schwartzman & Assoc. v. Mazza, the lower court appropriately imposed sanctions upon defendant because he failed to appear at pre-trial conferences and trial. James C. Schwartzman & Assoc. v. Mazza, (2005 Phila. Ct. Com. Pl.). Like the defendant in Sckwartzman & Assoc, appellant has “a history of ignoring this court’s orders and failing to appear for court scheduled events.” Id. Appellant’s most egregious behavior was his failure to appear at the March 12, 2012 hearing because he simply assumed we would grant his continuance based on our past accommodations. Thus, we rightly sanctioned him in light of his disrespectful conduct over the course of this litigation. Id.

Conclusion

For the foregoing reasons, our $1300 sanction should be affirmed.


author: ZULICK, J.,

text:
    Pishnick v. Laske

      C.P. of Monroe County,
    No. 9697 Civil 2009.

      S. Bruccoleri, for plaintiff.

      M. Bushman, K. Wright, & M. Merlini, for defendants.
    May 23, 2012
   ZULICK, J.,

Plaintiffs, Catherine and Charles T. Pishnick, brought this medical malpractice action against the defendants, Douglas Walter Laske, M.D., Temple University Hospital, Inc., Terrance S. Chilson, M.D., St. Luke’s Health Services, Inc., individually and d/b/a Medical Associates of the Pocono Mountains (“St. Luke’s”), Michael H. Schuman, M.D., and Medical Associates of Monroe County, P.C., alleging a failure to diagnose a stroke and blockage of her carotid artery, which led to a second, more severe stroke and left side paralysis. Currently before the court are the Pishnicks’ preliminary objections to the answer and new matter of Dr. Schuman and Medical Associates of Monroe County as well as the Pishnicks’ motion seeking sanctions from Dr. Chilson for the late submission of a defense expert report.

BACKGROUND

This action was initiated by the filing of two writs of summons in April and May, 2005 in Philadelphia County. The complaints were filed on July 20, 2005 and August 23, 2005. On February 8, 2006, the two cases were consolidated and transferred to Monroe County by order of the Honorable Jacqueline Allen of the Philadelphia Court of Common Pleas. Notice of appeal of the transfer was timely filed. The superior court affirmed the transfer on October 3, 2007. The Supreme Court denied the petition for allowance of appeal on May 21, 2009. Counsel for the Pishnicks filed a praecipe to transfer the case to Monroe County on August 5, 2009.

By order dated May 3, 2011, the Honorable Linda Wallach Miller set the final deadlines for discoveiy and expert reports. According to that order, discovery was to be completed by June 14, 2011, the Pishnicks’ expert reports were to be submitted by August 14, 2011, and the defendants’ expert reports were due by October 14, 2011. By letter dated October 13, 2011, counsel for Dr. Chilson and St. Luke’s requested a three week extension of the time to file their expert’s report, which the Pishnicks’ attorney consented to.

The parties appeared for argument before the court on February 6, 2012 on the issue of Dr. Schuman’s motion to compel an independent vocational examination of Ms. Pishnick in which the other defendants j oined. At argument, the court asked counsel for the parties whether there were any remaining discovery issues. Counsel all answered in the negative. Following argument, on February 10, 2012, the court issued an order granting the request for an independent vocational examination of Ms. Pishnick, closing discovery, and directing the Pishnicks’ counsel to arrange for the scheduling of a pre-trial conference.

The same day, Dr. Schuman and Medical Associates of Monroe County filed their answers with new matter to the Pishnicks’ complaint. On February 22, 2012, the Pishnicks filed preliminary objections to the answers and new matter of Dr. Schuman and Medical Associates of Monroe County, arguing that the answers had been filed well beyond the time limits authorized by the Pennsylvania Rules of Civil Procedure. The Pishnicks request that the court strike the answers and new matter of Dr. Schuman and Medical Associates of Monroe County.

In response, Dr. Schuman and Medical Associates of Monroe County point to the lengthy procedural history of the case and the extended litigation on the venue issue as a reasonable explanation for the delay in their filings. Dr. Schuman and Medical Associates of Monroe County also argue that, because discovery has progressed in the case, there are no surprise defenses raised by the answers and new matter. Finally, Dr. Schuman is suffering from dementia, which his counsel cites as a further explanation for the delay in filing his answer and new matter. Accordingly, Dr. Schuman and Medical Associates of Monroe County request that the Pishnicks’ preliminary objections be denied. On March 29, 2012, the Pishnicks filed a reply, which points out that Drs. Laske and Chilson filed timely answers to the complaint.

On March 1,2012, Dr. Chilson and St. Luke’s submitted a defense liability expert report of Dr. James A. Morris to the Pishnicks. On March 9, 2012, the Pishnicks filed a motion for sanctions to strike Dr. Morris’ report. In support of their motion, the Pishnicks highlight the prior order of Judge Miller, which set the deadline for defense expert reports for October 14,2011 as well as the request to extend that deadline by three weeks to demonstrate the disregard for the pre-trial deadlines. In response, Dr. Chilson and St. Luke’s argue that this court’s order of February 10, 2012 closing discovery only related to “factual discovery, and not production of expert reports.” Further, Dr. Chilson and St. Luke’s argue that because trial is still another year away, there is no prejudice to the Pishnicks through the production of this expert report.

Counsel for the parties presented argument before the court on both issues on May 7, 2012.

DISCUSSION

I. Dr. Schuman and Medical Associates of Monroe County’s Late Answers

Pennsylvania Rule of Civil Procedure 1026 provides in pertinent part that “every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading.” Pa. R. Civ. P. 1026(a). Rule 126 provides, however, that

[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Pa. R. Civ. P. 126.

Our Supreme Court has held “that it is within the trial court’s broad discretion to strike as untimely an answer which blatantly ignores the time limits set by procedural rules.” Peters Creek Sanitary Auth. v. Welch, 545 Pa. 309, 311, 681 A.2d 167, 168 (1996). Further, “the trial court does not abuse its discretion in striking an answer where the moving party has failed to seek a default judgment.” Id. Instead, the court explained that

[wjhen a party moves to strike a pleading, the party who files the untimely pleading must demonstrate just cause for the delay. It is only after a showing of just cause has been made that the moving party needs to demonstrate that it has been prejudiced by the late pleading.

Id. at 170. Applying this standard to the facts in that case, the Supreme Court affirmed the trial court’s striking of the defendant’s answer and new matter, which had been filed almost twenty-three months after the plaintiff’s complaint had been served and one day before trial was scheduled to commence. See id. at 171.

In this case, Dr. Schuman was served with the complaint on July 25, 2005 and Medical Associates of Monroe County was served on August 31, 2005. The venue issue was resolved in May 2009 and the matter was transferred to Monroe County in August 2009. Therefore, the filing of Dr. Schuman and Medical Associates of Monroe County’s answers and new matter is, at best, almost two and one half years late. Although Dr. Schuman and Medical Associates of Monroe County correctly argue that the time limits established by Rule 1026 are “not mandatory, but permissive” and, accordingly, “late pleadings may be filed if the opposite party is not prejudiced and justice requires,” the burden is on Dr. Schuman and Medical Associates of Monroe County to first show just cause for the delay before the Pishnicks must establish prejudice. Id. at 170 (quoting Paulish v. Bakaitis, 442 Pa. 434, 441-442, 275 A.2d 318, 321-22 (1971)) (internal quotation marks omitted).

Dr. Schuman and Medical Associates of Monroe County’s explanation for the delay is the Pishnicks’ appeal of the venue issue. Even accepting this as just cause for delaying the filing of an answer until all appeals were exhausted, the issue was resolved in May 2009 when the Supreme Court denied the Pishnicks’ petition for allowance of appeal. The case was then transferred from Philadelphia County to Monroe County within a few months. No reason is proffered by Dr. Schuman or Medical Associates of Monroe County to show just cause for the delay in answering the complaint after the transfer to Monroe County was complete.

Additionally, Dr. Schuman and Medical Associates of Monroe County admit in their answer to the Pishnicks’ preliminary objections that discovery in this matter has been ongoing since the case was transferred to Monroe County. See Resp. of Def., Michael H. Schuman, M.D., in Opp’n to Pis’ Prelim. Objections to the Answer with New Matter of Michael Schuman, M.D. ¶¶ 1, 6, 9, and 13; Resp. of Def., Medical Associates of Monroe County, P.C., to pl.s’prelim, objections ¶¶ 1,11,15,16, and 20. The fact that Dr. Schuman and Medical Associates of Monroe County proceeded with discovery also demonstrates that there is no just cause for the delay in filing the answer.

Having found no just cause for the almost two and a half year delay, the court does not need to determine whether the Pishnicks have demonstrated prejudice by the late filing.

One result of the “just cause” requirement is that opposing counsel may sit back and do nothing as time passes on the delinquent pleading, leaving counsel who simply overlooks a responsive pleading in a precarious position. Plaintiffs’ counsel candidly acknowledged doing just this at argument. However, the Peters decision makes clear that this is an acceptable strategy under the law. Accordingly, the Pishnicks’ preliminary objections to the answers and new matter of Dr. S chuman and Medical Associates of Monroe County will be sustained and those pleadings stricken with prejudice.

II. Late Defense Liability Expert Report

A court has the authority under the Pennsylvania Rules of Civil Procedure to sanction parties that fail to comply with discovery as allowed under the rules or to comply with an order of court respecting discovery. See Pa. R. Civ. P. 4019.

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: because 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 against the necessity of the sanction.

Rohm & Haas Co. v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010) (citations and internal quotation marks omitted). The factors that the court must consider are “(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. (citations omitted).

Here, the late submission of Dr. Morris’s report was not in compliance with the court’s scheduling order. Dr. Chilson and St. Luke’s did not seek leave of court for an extension of time before filing the late report. Additionally, although counsel for Dr. Chilson and St. Luke’s attempts to highlight some uncertainty in my order closing discovery, there was no request prior to the submission of Dr. Morris’s report seeking clarification of the discovery deadlines. Nonetheless, there is nothing to suggest that this violation was contemptuous or in bad faith. On the contrary, counsel for Dr. Chilson and St. Luke’s sought a courtesy extension of time from counsel for the Pishnicks when it became clear that the report was not ready prior to the October 14, 2011 deadline. This put the Pishnicks on notice that an expert report would be forthcoming. Further, the Pishnicks have not shown prejudice in the submission of Dr. Morris’s report one full year prior to the scheduled date of trial. Even if there were some prejudice, this is easily cured by allowing the Pishnicks time to have their experts review and respond to Dr. Morris’s report. Lastly, precluding Dr. Morris’s report will all but foreclose any defense Dr. Chilson and St. Luke’s could mount to the Pishnicks’ claim, which obviously is a severe prejudice to them. Accordingly, the Pishnicks’ motion for sanctions and motion to strike Dr. Morris’s report will be denied.

ORDER

And now, this 23rd day of May, 2012, following consideration of plaintiffs, Catherine and Charles T. Pishnicks’ preliminary objections to the answer and new matter of defendant, Michael H. Schuman, M.D., and the answer and new matter of defendant, Medical Associates of Monroe County, P.C., the parties’ briefs and following oral argument, It is ordered as follows:

1. The Pishnicks’ preliminary objections are sustained;

2. The answer and new matter of Dr. Schuman is stricken with prejudice; and,

3. The answer and new matter of Medical Associates of Monroe County is stricken with prejudice.

Further, following consideration of plaintiffs’ motion to preclude the testimony of James A. Morris, Jr., M.D. on behalf of defendant, Terrance Chilson, M.D., and the response of defendant, Terrance S. Chilson, M.D., and St. Luke’s Health Services, Inc., d/b/a Medical Associates of the Pocono Mountains, the parties’ briefs and following oral argument, It is ordered as follows:

1. The Pishnicks’ motion for sanctions and motion to strike the report of Dr. Morris are denied; and,

2. The Pishnicks are permitted to file an expert report within 90 days responding to the report of Dr. Morris.

Lastly, the Prothonotary is directed to amend the caption to reflect the proper parties to the action by removing “Pocono Neurology Associates” as a defendant and adding “Medical Associates of Monroe County, P.C.” as a defendant.

      . After review of the file, it is clear that the case caption in this court does not reflect the actual parties to this action. As of December 15, 2005, the matter was discontinued, by stipulation, as to defendant, Pocono Neurology Associates. Further, two Philadelphia cases were consolidated before transfer to Monroe County and Medical Associates of Monroe County, P.C. was a defendant in that consolidated action.

      . Although Dr. Schuman and Medical Associates of Monroe County also argue that Dr. Schuman suffers from dementia and, therefore, has been unable to verify the answer or otherwise assist in his defense, this does not provide just cause for the substantial delay in answering the complaint. If the problem of Dr. Schuman’s dementia is of recent onset, it could have been avoided if an answer was filed sometime within the past two and a half years. Otherwise, if the problem existed at the time the venue issue was resolved in May 2009, it could have been raised and addressed within a reasonable time thereafter, but was not. Further, although Dr. Schuman is alleged to have been an agent and/or employee of Medical Associates of Monroe County, his medical condition would not be an excuse for Medical Associates of Monroe County in failing to file its answer.