author: NEALON, J.,

text:
    Euceda v. Green

      C.P. of Lackawanna County,
    No. 13 CV 3373

      Shanin Specter, Andrew S. Youman and Mark S. Polín, for plaintiffs.

      Eugene P Feeney and Ryan R. BcBride, for defendant Barry Green, D.O.

      Stuart T. O’Neal, III, M. Sean Maravich and Daniel A. Cutler, for defendants Moses Taylor Hospital and Scranton Quincy Hospital Co., LLC.
    Aug. 20, 2014
   NEALON, J.,

— The defendant obstetrician and his counsel in this malpractice action have appealed the special trial master’s imposition of monetary sanctions of $1,000.00 as a result of defense counsel’s eleventh-hour cancellation of plaintiffs’ depositions that were scheduled by defense counsel. Plaintiffs have filed a cross-motion for additional sanctions under Pa.R.C.P. 1023.1 — 1023.4 on the ground that the obstetrician’s discovery appeal is frivolous.

Once a party or lawyer notices a deposition pursuant to Pa.R.C.P. 4007.1, [s]he assumes the concomitant duty under Pa.R.C.P. 4019(e) to promptly notify all other counsel and parties of the cancellation of that deposition before those individuals have incurred travel and predeposition preparation expenses. The discoveiy record reflects that, notwithstanding the fact that (1) plaintiffs’ counsel confirmed by email in the late morning of April 29, 2014, that plaintiffs’ noticed depositions in Scranton would proceed forward as scheduled by defense counsel for the early morning of April 30, 2014, and (2) defense counsel knew that the law office of plaintiffs’ counsel is in Philadelphia, defense counsel unilaterally cancelled those depositions on the afternoon of April 29,2014, almost three hours after receiving the email confirmation from plaintiffs’ counsel that the depositions would “go on as planned tomorrow.” Upon being notified of defense counsel’s last-minute cancellation of the depositions, plaintiffs’ counsel immediately contacted defense counsel’s office and requested that the depositions proceed as scheduled in light of the presence of plaintiffs and their counsel in Scranton, but defense counsel declined to do so.

Since it was reasonably foreseeable to defense counsel that plaintiffs’ counsel would travel to Scranton to prepare plaintiffs for their depositions prior to the time that defense counsel belatedly notified them of the cancellation of those depositions, an award of counsel fees and travel expenses to plaintiffs is warranted under Rule 4019(e). Consequently, the special trial master’s sanctions order will be affirmed, but the remedial award will be increased to $1,347.30 to reflect the full amount of reasonable counsel fees and travel expenses related to the aborted depositions. However, since (a) plaintiffs never served the defense with a written demand for the withdrawal of this discovery appeal, (b) Rules 1023.1 — 1023.4 do not apply to discovery motions, and (c) no reported decision previously applied Rule 4019(e) to a request for monetary sanctions following an untimely cancellation of a noticed deposition, plaintiffs’ cross motion for additional sanctions under Rule 1023.1 will be denied.

I. FACTUAL BACKGROUND

On June 24, 2013, plaintiffs, Alex Geovany Euceda (“Euceda”) and Maria Castillo (“Castillo”), filed this medical malpractice action against Castillo’s obstetrician, Barry Green, D.O. (“Dr. Green”), his practice group, Women’s Care Consultants, P.C., and Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital (“Moses Taylor”), alleging the negligent management of Castillo’s labor and delivery at Moses Taylor, which resulted in the death of plaintiffs’ eight day old son due to severe hypoxic-ischemic encephalopathy. (Docket entry no. 1). Nine days later, Euceda and Castillo filed certificates of merit as to each named defendant pursuant to Pa.R.C.P. 1042.3, (docket entry nos. 2-5), thereby triggering their right to conduct discovery depositions. See Pa.R.C.P. 1042.5 (stating that with the exception of document requests or entry upon property for inspection purposes, a malpractice plaintiff “may not, without leave of court, seek any discovery with respect to that claim prior to the filing of a certificate of merit.”). By letter dated August 19, 2013, plaintiffs’ counsel served written discovery requests upon Dr. Green’s counsel, Weber Gallagher Simpson Stapelton Fires & Newby, LLP (“Weber Gallagher”), and requested dates for the deposition of Dr. Green. (Docket entry no. 65, exhibit A). In the absence of a response, plaintiffs’ counsel forwarded email communications to Weber Gallagher on November 22,2013, and December 3, 2013, soliciting potential dates for Dr. Green’s deposition. (Id., exhibits B-C).

Following a series of email exchanges among counsel on December 4, 2013, the deposition of Dr. Green was scheduled for January 31, 2014. (Id, exhibits D-E). However, on December 10, 2013, Weber Gallagher cancelled that scheduled deposition upon being advised by Dr. Green “that he is now on call” on that date. (Id, exhibit E). From December 11, 2013, to January 6, 2014, counsel for the parties exchanged eleven email communications in an effort to reschedule Dr. Green’s deposition. (Id, exhibit F at pp. 1 -3). On January 7,2014, Weber Gallagher confirmed that Dr. Green’s rescheduled deposition would be conducted in Weber Gallagher’s offices on March 6, 2014, at 1:00 PM. (Id at p. 1).

Based upon email communications dated January 23, 2014, confirming the availability of Euceda, Castillo and all counsel for depositions on April 30, 2014, (Id., exhibit G), Weber Gallagher noticed the depositions of Euceda and Castillo for April 30, 2014, at 10:00 AM in the Scranton office of Weber Gallagher. (Id., exhibit H). Three days prior to the scheduled deposition of Dr. Green on March 6, 2014, Weber Gallagher forwarded a letter to plaintiffs’ counsel via facsimile transmission stating that “[a] conflict has arisen which will necessitate us cancelling the deposition of Dr. Green scheduled for Thursday, March 6th.” (Id., exhibit I at p. 2). Since the cancellation letter was transmitted by Weber Gallagher to an outdated facsimile number, plaintiffs’ counsel did not receive notice of the cancellation on that date. (Id. at ¶ 12). After plaintiffs’ counsel was notified of the cancellation on March 5, 2014, his paralegal contacted Weber Gallagher, informed them of the correct facsimile number “as identified on all [plaintiffs’ counsel’s] letterhead and correspondence in this matter,” and advised Weber Gallagher “that plaintiffs’ counsel prefers to communicate by email or U.S. Mail, not via facsimile.” (Id. at ¶ 13).

Between March 5, 2014, and April 10, 2014, counsel for the parties exchanged twenty-four emails in an attempt to reschedule Dr. Green’s deposition, and ultimately confirmed that Dr. Green and all counsel were available to conduct Dr. Green’s deposition on May 13, 2014. (Id, exhibit J at pp. 1-8). On April 10,2104, plaintiffs’ counsel forwarded an email to all counsel stating that he had sent a notice of deposition scheduling Dr. Green’s discovery deposition for May 13, 2014, at 11:00 AM, two weeks after the scheduled depositions of Euceda and Castillo. (Id., exhibit K). However, on April 11, 2014, Weber Gallagher cancelled Dr. Green’s rescheduled deposition due to a scheduling conflict. (Id.)

On April 15, 2014, plaintiffs’ counsel emailed a letter to Weber Gallagher, stating:

Despite multiple attempts spanning more than six months, you have failed to produce Barry Green, D.O., for his deposition relative to the above matter. Please be advised that unless we have a firm date within ten (10) days for Dr. Green’s deposition to be taken by the end of June, we will file a motion to compel his deposition for a date at our convenience.

(Id., exhibit L). On April 21, 2014, Weber Gallagher transmitted an email to all counsel proposing three dates for Dr. Green’s deposition. (Id., exhibit M). Counsel for co-defendant, Moses Taylor, promptly replied that he had previously informed Weber Gallagher by email dated April 3, 2014 (i.e., in conjunction with the earlier scheduling of Dr. Green’s deposition on May 13, 2014), that Moses Taylor’s counsel was not available for depositions on any of those three dates. (Id.).

As noted above, by notice of deposition dated January 27, 2014, (Id., exhibit H), Weber Gallagher scheduled the depositions of Euceda and Castillo for the morning of April 30, 2014. On April 29, 2014, at 11:18 AM, Weber Gallagher forwarded an email to plaintiffs’ counsel indicating that Weber Gallagher was still awaiting potential depositions dates from Dr. Green, and inquiring whether plaintiffs’ counsel was “cancelling [plaintiffs’] depositions for tomorrow.” (Id., exhibit N). Plaintiffs’ counsel immediately replied by email that “plaintiffs’ depositions are scheduled to go on as planned tomorrow” at 10:00 AM in Scranton. (Id.). Shortly thereafter, plaintiffs’ counsel proceeded to travel from Philadelphia to Scranton in order to meet with Euceda and Castillo to prepare them for their depositions. (Id. at ¶19).

Unbeknownst to plaintiffs’ counsel, at 2:02 PM on April 29, 2014, Weber Gallagher faxed a letter to plaintiffs’ counsel, albeit to the facsimile number which Weber Gallagher had previously been informed was outdated, announcing that Weber Gallagher “would like to cancel the depositions of plaintiffs, Maria Castillo and Alex Euceda, currently scheduled for April 30, 2014.” (Id., exhibit O). Additionally, although Weber Gallagher later exchanged email communications with the office of plaintiffs’ counsel at 2:51 PM and 3:01 PM on April 29, 2104, those email communications did not mention Weber Gallagher’s desire to cancel the depositions of Euceda and Castillo. (Id., exhibit P). Consequently, after plaintiffs’ counsel had already arrived in Scranton, his Philadelphia law office received a telephone call from counsel for Moses Taylor inquiring whether plaintiffs’ counsel had received the facsimile transmission from Weber Gallagher cancelling the depositions scheduled for the following morning. (Id. at ¶ 19). Plaintiffs’ counsel immediately contacted Weber Gallagher’s office and “requested the depositions not be cancelled because he and plaintiffs were already in Scranton after significant travel,” but were advised by Weber Gallagher’s paralegal that “the depositions had already been cancelled by [Weber Gallagher].” (Id. at ¶ 20).

Since Weber Gallagher had thrice cancelled Dr. Green’s deposition which had been scheduled for dates provided by Weber Gallagher, and plaintiffs and their counsel had incurred expenses attributable to the untimely cancellation of their depositions, Euceda and Castillo filed a motion on May 15, 2014, seeking “both the timely deposition of defendant, Barry Green, D.O., and the imposition of sanctions on defense counsel, Weber Gallagher, for precipitously and without justification cancelling plaintiffs’ depositions, resulting in significant unrecoverable costs to plaintiffs and plaintiffs’ counsel.” (Docket entry no. 65 at ¶2). Plaintiffs sought to recover $2,260.04 in monetary sanctions, comprised of Euceda’s lost income and travel expenses of $912.74 related to his Ohio employment, and attorneys’ fees and travel expenses incurred by plaintiffs’ counsel in the amount of $ 1,347.30. (Id. at ¶27). Immediately prior to the presentation of plaintiffs’ motion in discovery motions court on May 15, 2014, special trial master Henry P. Burke reportedly “gave an introductory statement to all counsel that anyone seeking monetary sanctions was unlikely to succeed, as he rarely imposed them.” (Docket entry no. 69 at ¶24). Nevertheless, by order dated May 15, 2014, the special trial master granted plaintiffs’ motion to the extent that he ordered Dr. Green to appear for a deposition on August 27, 2014, and awarded monetary sanctions of $1,000.00 to plaintiffs. (Docket entry no. 64).

According to plaintiffs’ counsel, once the special trial master signed the discovery order awarding sanctions, Weber Gallagher’s associate “approached [plaintiffs’ counsel] and said that special trial master Burke’s order granting sanctions would only prolong discovery and increase plaintiffs’ costs, as Weber Gallagher would appeal the sanctions.” (Docket entry no. 69 at ¶27). On May 20, 2014, plaintiffs counsel forwarded a letter to Weber Gallagher’s lead counsel stating that “immediately following our discovery hearing before [the special trial master], your associate...stated that [the special trial master’s] sanctions would only prolong discovery and increase our costs in this matter given your firm’s intent to appeal.” (Docket entry no. 69, exhibit C). In that same letter, plaintiffs’ counsel further indicated that “[w]ith that in mind, let me assure you that any such appeal will result in our seeking, at the very least, the full $2,260.00 in sanctions originally sought in this matter.” (Id).

Dr. Green filed a timely “partial appeal” on May 27, 2014, seeking to “set aside the order of the special trial master dated May 15, 2014, insofar as it imposes sanctions upon [Dr. Green].” (Docket entry no. 67 at p. 5). In support of his request to vacate the sanctions award, Dr. Green contends that “sanctions were improperly issued without any prior order of court in violation of the same.” (Id. at ¶18). Dr. Green also argues that sanctions were imposed in error since plaintiffs’ motion sought to recover damages for Euceda’s lost income and travel expenses associated with his Ohio employment, even though “the first time that [Dr. Green] became aware of [Euceda] being located in Ohio was after the filing of [Euceda’s] motion.” (Id. at ¶ 17). Noting that plaintiffs’ discovery responses identify Euceda’s address “as 916 South Main Street, Apartment 1, Scranton, PA,” Dr. Green “submits that he cannot be held responsible for [Euceda’s] lost wages and travel expenses when he reasonably believed that [Euceda] was in the Scranton area.” (Id.). Based upon that reasoning, Dr. Green asserts that “the subject exorbitant monetary sanctions were improperly issued” and that “the imposition of sanctions should be stricken from Special Trial Master Burke’s May 15, 2014 Order.” (Id. at ¶ 21).

Plaintiffs submit that sanctions were warranted “because of [Weber Gallagher’s] relentless pattern of discovery abuse and avoidance.” (Docket entry no. 69 at ¶36). Plaintiffs observe that Dr. Green’s “appeal motion offers no explanation or justification for Weber Gallagher’s last-minute cancellation of plaintiffs’ depositions and cites to no legal authority supportive of its position.” (Id. at ¶32). Arguing that Dr. Green’s discovery appeal “is frivolous and vexatious,” plaintiffs have advanced a “cross-motion for additional sanctions” based upon Pa.R.C.P. 1023.1 — 1023.4. (Id. at pp. 6-9). Plaintiffs demand counsel fees and expenses of $2,697.30 related to their counsel’s opposition to Dr. Green’s discovery appeal, and assert that “[ajbsent additional sanctions, [Weber Gallagher’s] assertion that special trial master Burke’s order will only increase plaintiffs’ costs will come to fruition.” (Id at ¶¶36-37).

By notice dated June 3, 2014, the chief deputy court administrator directed Dr. Green to file his supporting brief by June 24, 2014, and plaintiffs to submit their brief in opposition by July 15, 2014. (Docket entry no. 68). Although Dr. Green has not filed a supporting brief, plaintiffs timely filed their response and opposing brief on July 15, 2014. (Docket entry no. 69). Following the completion of oral argument on July 21, 2014, Dr. Green’s discovery appeal and plaintiffs’ cross-motion for additional sanctions were submitted for a decision.

II. DISCUSSION

(A) STANDARD OF REVIEW

“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.” Anthony Biddle Contractors, Inc. v. Preet Allied American Street, L.P., 28 A.3d 916, 926 (Pa. Super. 2011). The enforcement of our discovery rules “is governed by the facts and circumstances of each particular case,” City of Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary), 604 Pa. 267, 285, 985 A.2d 1259, 1270 (2009), and the discovery sanction must be commensurate with the culpable party’s discovery violation. See Reilly v. Ernst & Young, LLP, 929 A.2d 1193, 1200 (Pa. Super. 2007). Decisional precedent governing discovery sanctions recognizes each of the following factors as a “necessary consideration,” but not a “necessary prerequisite,” when considering a request for sanctions based upon a discoveiy violation:

1. The nature and severity of the discovery violation;
2. The defaulting party’s willfulness or bad faith in failing to comply with discovery;
3. The resulting prejudice to the other party;
4. The non-offending party’s ability to cure any prejudice; and
5. The number of discovery violations by the noncomplying party Fraternal Order of Police Lodge No. 5 (Breary), 604 Pa. at 286, 985 A.2d at 1270-71; Fratzola, 26 Pa. D. & C. 5th at 539.

(B) ABSENCE OF PRIOR DISCOVERY ORDER

Dr. Green first contends that since his counsel did not disobey an existing discovery order, monetary sanctions were erroneously assessed against him. Specifically, Dr. Green posits that the sanctions award in this case should be vacated due to the fact that “sanctions were issued without any prior order of court in violation of the same.” (Docket entry no. 67 at ¶18).

While it is true that “sanctions pursuant to Pa.R.C.P. 4019 generally are imposed when a court order has been violated,” it is equally clear that Rule 4019 also provides “for sanctions when there has been a discovery violation.” McGovern v. Hospital Service Association of Northeastern Pennsylvania, 785 A.2d 1012, 1015 (Pa. Super. 2001). Rule 4019(a)(l)(viii) distinctly states that a court may enter an order imposing sanctions whenever a party or person “fails to make discovery or to obey an order of court respecting discovery.” Pa.R.C.P. 4019(a) (l)(viii) (emphasis added). Thus, it is beyond dispute “that Rule 4019 does not require the imposition of an order compelling discovery as a prerequisite to the trial court’s authority to impose an appropriate sanction.” Weist v. Atlantic Richfield Company, 374 Pa. Super. 405, 410, 543 A.2d 142, 145 (1988) (quoting Griffin v. Tedesco, 355 Pa. Super. 475, 483, 513 A.2d 1020, 1023 (1986)).

Dr. Green’s assertion, that an earlier order compelling discovery is a condition precedent to the imposition of discovery sanctions, lacks arguable merit. “Subdivision(a) (viii) is a blanket authorization to the court to enter a sanction order whenever there is a failure to make discovery....” Id. (emphasis in original) (quoting Pa.R.C.P. 4019 explanatory note (1978)). What must be determined, therefore, is whether Weber Gallagher’s actions contravened a recognized discovery obligation under the Rules of Civil Procedure. See Crance v. Sohanic, 344 Pa. Super. 526, 530, 496 A.2d 1230, 1232-1233 (1985) (stating that sanctions may be imposed for “disobedience to a discovery order, or an obligation stated in the rules of civil procedure.”).

(C) SANCTIONS FOR FAILURE TO MAKE DISCOVERY

The trial court is responsible for overseeing “discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measures to insure the adequate and prompt discovery of matters allowed by the Rules of Civil Procedure.” Rohm and Haas Co., 992 A.2d at 143; Uhl v. C. H. Shoemaker & Son, Inc., 432 Pa. Super. 230, 234-235, 637 A.2d 1358, 1360 (1994). To that end, “Rule 4019 of the Pennsylvania Rules of Civil Procedure permits a trial court to order sanctions where a party fails to provide sufficient discovery.” Zauflik v. Pennsbury School District, 72 A.3d 773, 796 n. 32 (Pa. Cmwlth. 2013), app. granted in part, 84 A.3d 293 (Pa. 2014). Judicial discretion in that regard is not unfettered, and it is clear that “in the exercise of judicial discretion in formulating an appropriate sanction order, the court is required to select a punishment which ‘fits the crime.’” St. Luke’s Hospital v. Vivian, 2014 WL 4056551, * 19 (Pa. Super. Aug. 18, 2014) (quoting Ghaner v. Bindi, 779 A.2d 585, 590 (Pa. Super. 2001)).

Litigants and their counsel have an obligation to act reasonably in scheduling and conducting discovery depositions. See, e.g, Cravath v. Mercy Hospital, 2013 WL 6991989, at * 2-5 (Lacka. Co. 2013) (ordering re-deposition of defendant physician after defense counsel objected and instructed physician not to answer twelve separate subjects of “permissible inquiry”). In enforcement of that discovery duty, our Rules of Civil Procedure provide distinct authority for the recovery of reasonable expenses, including counsel fees, for the failure of an opposing party or attorney to attend a scheduled deposition. Rule 4019(a)(l)(iv) governs instances where the party requesting sanctions schedules the deposition of a party or an officer or managing agent of a party, but that deponent “fails to appear before the person who is to take the deposition.” Pa.R.C.P. 4019(a)(l)(iv). In that event, Pa.R.C.P. 4019(c)(5) empowers the court to issue “such order with regard to the failure to make discovery as is just,” which may include an award of sanctions for counsel fees incurred by the moving party as a result of the deponent’s failure to appear. See Kirk v. St. Clair Memorial Hospital, 37 Pa. D. & C. 3d 63, 68 (Alleg. Co. 1982) (ordering defendant to “appear for his deposition” and to “pay reasonable expenses, including counsel fees, as a result of his failure to attend the June 16, 1982 deposition.”); Kinter v. Reliance Electric Co., 14 Pa. D. & C. 3d 402, 407 (Alleg. Co. 1980) (since defense counsel belatedly cancelled original deposition of defendant’s agent, and later cancelled that individual’s rescheduled deposition “three days before the date of this deposition,” trial court “grant[ed] plaintiffs’ request for payment of the counsel fees incurred in scheduling and preparing for the deposition which [defendant’s] managing agent failed to attend,” but “den[ied] plaintiffs’ request for reasonable expenses, including counsel fees, incurred in preparing and presenting the motion for sanctions.”).

In addition, Pa.R.C.P. 4019(e) furnishes separate authority for an award of counsel fees in those situations where the non-moving party schedules a deposition, but fails to appear and proceed forward with the noticed deposition. Rule 4019(e) provides that if the party who schedules “a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by such other party and his or her attorney in so attending, including attorney’s fees.” Pa.R.C.P. 4019(e). Although no reported Pennsylvania decision has applied Rule 4019(e) to a request for sanctions following an untimely cancellation of a scheduled deposition, the federal courts have relied upon essentially identical language contained in an earlier version of Fed. R. Civ. P. 30(g) and awarded monetary sanctions to parties whose counsel had already traveled to the sites of noticed depositions by the time that they were cancelled by opposing counsel. Federal “[cjourts have consistently interpreted Rule 30(g) to allow an award of expenses and attorney’s fees where the party noticing the deposition fails to attend and does not deliver sufficient notice of cancellation to the other party.” Zoltek Corp. v. United States, 2006 WL 5670861, at * 2 (Fed. CI. 2006); Pine Lakes International County Club v. Polo Ralph Lauren Corp., 127 F.R.D. 471, 472 (D.S.C. 1989) (citing Wright & Miller, Federal Practice and Procedure, § 2120 (1988 Supp.)). “When the party noticing the deposition cancels the deposition at the last minute and the other party has already traveled to the site of the deposition, courts have generally been willing to impose attorney’s fees and costs on the noticing party.” Zoltek Corp., supra.

In the United States District Court for the Middle District of Pennsylvania, Chief U. S. District Judge Christopher C. Conner has held that “[insufficient notice of the cancellation of depositions by the noticing party, particularly when the other party has already travelled to the deposition location, warrants an award of costs and attorney’s fees.” Atwell v. SPX Cooling Technologies. Inc., 2011 WL 2194057, at * 3 (M.D. Pa. 2011) (sanctions imposed upon counsel who noticed depositions and “unilaterally cancelled all of the depositions just one day before they were scheduled to begin” even though opposing counsel had already traveled to site of deposition). Similarly, U. S. District Judge A. Richard Caputo awarded monetary sanctions to an attorney who travelled from Scranton to Philadelphia to attend scheduled depositions which were belatedly cancelled by opposing counsel after the attorney had arrived in Philadelphia. See Roger Dubuis North America, Inc. v. Thomas, 2006 WL 3199141, at * 4 (M.D. Pa. 2006). Accord Novak Site, supra (“...it was unreasonable for plaintiffs’ counsel to cancel the depositions the day before they were to occur, given the near certainty that defendants’ counsel would be travelling on or before that day.”). Federal precedent recognizes that once a party schedules a deposition, “it also retain[s] the burden of cancelling said deposition, and conveying this information to [opposing counsel] in sufficient time to prevent [opposing counsel] from incurring the expense of traveling to the site of the scheduled deposition.” Pike Lakes International County Club, 127 F.R.D. at 472. Article II (17) of the Pennsylvania Code of Civility likewise states that “[a] lawyer should demonstrate respect for other lawyers, which requires that counsel be punctual in meeting appointments with other lawyers and considerate of the schedules of other participants in the legal process....” Johnson v. White, 964 A.2d 42, 50 (Pa. Cmwlth. 2009).

Compelling policy reasons exist for interpreting Pa.R.C.P. 4019(e) in the same manner as its federal counterpart, Fed. R. Civ. P. 30(g), so as to promote the prompt and economical resolution of civil cases. See Pa.R.C.P. 126 (mandating that the Rules of Civil Procedure “be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.”); Pa.R.C.P. 4009.1,2012 explanatory comment (stating that discovery is governed by a proportionality standard “in order that discovery obligations are consistent with the just, speedy and inexpensive determination and resolution of litigation disputes.”). Once a party or lawyer notices a deposition pursuant to Pa.R.C.P. 4007.1, [s]he bears the corresponding responsibility under Pa.R.C.P. 4019(e) to seasonably notify all counsel and parties of the cancellation of that deposition in order to avoid any needless travel and deposition preparation expenses. See Pike Lakes International County Club, supra. Therefore, Rule 4019(e) vests trial courts with the authority to impose sanctions against a party or attorney who fails to timely deliver notice of the cancellation of a deposition that [s]he has scheduled, as a result of which the opposing party or attorney incurs reasonably foreseeable travel and preparation costs in connection with that aborted deposition.

Dr. Green’s submissions fail to proffer a single reason why plaintiffs’ depositions were unilaterally cancelled by Weber Gallagher on the afternoon of April 29, 2014, approximately three hours after plaintiffs’ counsel had confirmed via email that “plaintiffs’ depositions are scheduled to go on as planned tomorrow.” (See transcript of oral argument proceedings on 7/21/14 at pp. 2-10). It was foreseeable to Weber Gallagher that plaintiffs’ counsel would travel from Philadelphia to Scranton on April 29, 2014, in order to prepare Euceda and Castillo for their depositions, particularly in light of the foregoing email reaffirming that those depositions would proceed forward as scheduled. The resulting prejudice attributable to Weber Gallagher’s last-minute cancellation is self-evident, as reflected by the presence of plaintiffs’ counsel in Scranton at the time that the dilatory notice was first transmitted to counsel by way of an obsolete fax number. Moreover, plaintiffs’ counsel attempted to cure that prejudice by immediately contacting Weber Gallagher and requesting that the depositions proceed as scheduled in light of the presence of Euceda, Castillo and their counsel in Scranton, but Weber Gallagher inexplicably refused to do so.

By the time that Dr. Green’s deposition is conducted on August 27, 2014, this malpractice action will have been pending for more than fourteen months. It is inevitable that certain delays in conducting discovery may be experienced due to unforeseen developments and congested calendars of assiduous trial attorneys. But barring extenuating circumstances resulting from pending case dispositive motions, joinder of additional parties or ongoing paper discovery disputes, it is inexcusable and unacceptable for any case to be pending for more than one year without a single deposition having been conducted, as is the case in the litigation at hand.

Based upon the record submitted, remedial sanctions are warranted in the form of fees and travel expenses for plaintiffs’ counsel since those costs were reasonably foreseeable to Weber Gallagher at the time that it cancelled plaintiffs’ depositions. However, in light of Euceda’s discovery responses indicating a Scranton residence, his employment-related travel expenses and lost income were not foreseeable to Weber Gallagher. Consequently, the special trial master’s sanctions order will be affirmed, but increased to the sum of $1,347.30 to reflect the full amount of fees and travel costs incurred by plaintiffs’ counsel as a result of Weber Gallagher’s violation of the deposition cancellation notice requirement. See Sun Pipe Company v. Tri-State Telecommunications, Inc., 440 Pa. Super. 47, 66, 655 A.2d 112, 121 (1994) (“Only counsel fees incurred as a direct result of the discovery violation should be imposed as a discovery sanction except in the most egregious cases.”) (emphasis in original), app. denied, 542 Pa. 673, 668 A.2d 1136 (1995).

(D) CROSS-MOTION FOR ADDITIONAL SANCTIONS

Euceda and Castillo have also asserted a “cross-motion for additional sanctions” seeking to recover further sanctions of $2,697.30 for counsel fees and travel expenses incurred in opposing Dr. Green’s discovery appeal. (Docket entry no. 69 at ¶22-39). Dr. Green has not filed a response or brief in opposition to plaintiffs’ cross-motion. In their supporting memoranda of law, Euceda and Castillo predicate their request for additional sanctions upon Pa.R.C.P. 1023.1 — 1023.4. (Plaintiffs’ memorandum of law in support, at pp. 2-3).

Pa.R.C.P. 1023.1 is patterned after Fed. R. Civ. P. 11, Barcola v. Hourigan, Kluger & Ouinn, PC., 82 Pa. D. & C. 4th 394, 407 (Lacka. Co. 2006), and provides that the signature of an attorney or self-represented party on a motion or other filing constitutes a certification that the claims, defenses and arguments contained therein have the requisite factual, evidentiary and legal support, and are “not being presented for any improper purpose, such as...to cause unnecessary delay or needless increase in the cost of litigation.” Pa.R.C.P. 1023.1(c). If the court determines that Rule 1023.1(c) has been violated, it may impose sanctions, including “payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.” University of Scranton v. Zoning Hearing Board of City of Scranton, 2014 WL 128850, at *4 (Lacka. Co. 2014) (citing Pa.R.C.P. 1023.1(d) and 1023.4(a)(2)(H)). The trial court “has significant discretion in determining whether to impose sanctions” under Rule 1023.1, and “[sanctions should be granted sparingly lest they have a chilling effect on the right of all parties...to litigate a controversy to conclusion.” Com., ex rel. Fisher v. Jash Inter., Inc., 847 A.2d 125, 134 (Pa. Cmwlth. 2004).

Rules 1023.1 to 1023.4 set forth specific procedural requirements applicable to requests for sanctions under Rule 1023.1. First, “[a]n application for sanctions under this rule shall be made by motion, shall be made separately from other applications and shall described the specific conduct alleged to violate Rule 1023.1(c).” Pa.R.C.P. 1023.2(a). See also Pa.R.C.P. 1023.1, explanatory comment at ¶7 (“The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion.”). Second, the motion for sanctions must include a certification that at least twenty-eight days prior to the filing of the motion, the movant served a written notice and demand upon the attorney or self-represented party who filed the challenged paper, which (a) identify “with specificity each portion of the document which is believed to violate the provisions” of Rule 1023, (b) set forth “the basis for that belief with specificity,” and (c) demand “that the document or portion of the document be withdrawn or appropriately corrected.” Pa.R.C.P. 1023.2(b). This requirement is “intended to provide a type of ‘safe harbor’ against motions under Rule 1023.1 in that a party will not be subject to sanctions under Rule 1023.1 on the basis of another party’s motion unless, after having been served with the written notice and demand, it refused to withdraw that allegation or contention or to acknowledge that it does not currently have evidence to support it.” Pa.R.C.P. 1023.1, explanatory comment at ¶7. Accord Lilac Meadows, Inc. v. Panko, 2012 WL 5461380, at * 4 n. 2 (Lacka. Co. 2012).

Plaintiffs’ cross-motion for additional sanctions must be denied for several reasons. The record is devoid of any proof that plaintiffs served a written demand upon Dr. Green to withdraw his discovery appeal, and that Dr. Green failed to do so within twenty-eight days after service of that written demand. Additionally, plaintiffs sought supplemental sanctions via a cross-motion in response to Dr. Green’s “partial appeal,” rather than by way of an independent motion, as required by Rule 1023.2(a). Moreover, Rule 1023.1(a) distinctly states that “Rules 1023.1 through 1023.4 do not apply to...discovery motions that are subject to the provisions of general rules.” Pa.R.C.P. 1023.1(a). Finally, although Dr. Green has been unsuccessful with his discovery appeal, there is no reported case law applying Rule 4019(e) and awarding sanctions based upon the belated cancellation of a noticed deposition that was scheduled by the non-moving party. See Lasavage v. Smith, 2011 WL 2853697, at * 9 (Lacka. Co. 2011) (denying motions for sanctions under Rule 1023.1, noting that “[i]n challenging the enforceability of [plaintiff counsel’s] advance conflict waiver, [defendants] did not have the benefit of any Pennsylvania precedent addressing comment 22 [to Rule Prof. Cond. 1.7] and its ‘informed consent’ requirements” and concluding that defendants “were dealing with a blank decisional slate that invited ‘creativity in pursuing factual or legal theories.’”) (quoting Pa.R.C.P. 1023.1, explanatory comment at ¶ 2). For all these reasons, plaintiffs’ cross-motion for additional sanctions will be denied.

ORDER

And now, this 20th day of August, 2014, upon consideration of the “partial appeal of special trial master’s order dated May 15, 2014, filed by defendant, Barry Green, D.O.” and “plaintiffs’ cross-motion for additional sanctions,” the exhibits attached thereto, plaintiffs’ memorandum of law, and the oral argument of counsel on July 21, 2014, and based upon the reasoning set forth above in the foregoing memorandum, it is hereby ordered and decreed that:

1. The de novo discovery appeal filed by defendant, Barry Green, D.O., pursuant to Lacka. Co. R.C.P. 4000.1 is denied;

2. The special trial master order of May 15, 2014, is affirmed to the extent that it granted plaintiffs’ motion for sanctions, but vacated to the extent that it awarded sanctions in the amount of $1,000.00;

3. In accordance with Pa.R.C.P. 4019(e), sanctions are awarded to plaintiffs and against defendant, Barry Green, D.O., in the sum of $1,347.30; and

4. Plaintiffs’ cross-motion for additional sanctions is denied.

      . The complaint avers that Dr. Green’s medical office is located at 611 Morgan Highway, Clarks Summit, and that during Dr. Green’s treatment of Castillo, he was acting as the agent of his professional corporation, Women’s Care Consultants, P.C., which maintains its medical practice facility at 611 Morgan Highway, Clarks Summit, (id. at ¶¶ 5-7). On August 9, 2013, Weber Gallagher entered its appearance on behalf of Dr. Green only. (Docket entry no. 11). On February 26, 2014, Dr. Green filed a pro se document entitled “notice of intend to defend,” which merely states “I, Barry L. Green, President of Women’s Care Consultants, hereby give notice to defend the above-titled case.” (Docket entry no. 57). On that same date, Dr. Green also filed a. pro se “motion to vacate” which reads:
      I, Bariy L. Green, President of Women’s Care Consultants, move to vacate the above titled case. The plaintiffs at no time received medical care at Women’s Care Consultants, 611 Morgan Highway, Clarks Summit, PA 18411, as alleged in No. 6 of the complaint. The totality of my involvement in care was provided at Moses Taylor Hospital, Scranton, Pennsylvania and not as an agent or representative of Women’s Care Consultants.
      I would be happy to be present at a hearing regarding the above matter should the court find this necessary.
      (Docket entry no. 58). The official docket sheet does not reflect that Dr. Green has ever served his “motion to vacate” upon any other party.

      . Under Lacka. Co. R.C.P. 4000.1, all discovery motions must initially be presented to and decided by the court-appointed special trial master whose ruling “may be appealed de novo” to the Court of Common Pleas. See Venosh v. Henzes. 2014 WL 3886854, at * 4 n. 3 (Lacka. Co. 2014). Local Rule 4019(a) similarly provides that “[a]ny party seeking sanctions pursuant to Pa.R.C.P. 4019...shall, in all circumstances, initially do so by motion to the special trial master pursuant to Lacka. Co. R.C.P. 4000.1.” Lacka. Co. R.C.P. 4019(a). Not unlike Local Rule 4000.1(b), Lacka. Co. R.C.P. 4019(b) states that “[a]ny order of the special trial master granting or denying a sanction may be appealed de novo” to the Court of Common Pleas. Fratzola v. Klepadlo, 26 Pa. D. & C. 5th 533, 538 (Lacka. Co. 2012).

      . In cases where evidence has been excluded as a discovery sanction, the courts have also weighed the importance of the precluded evidence and the extent to which waiver of the exclusionary sanction would disrupt the orderly and efficient trial of cases in the court. See Rohm and Haas Co. v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010), cert. denied, 132 S.Ct. 852 (U.S. 2011).

      . Subparagraph (g)(1) of Rule 4019 contains an independent basis for an award of “reasonable expenses, including attorney’s fees,” in those instances where a party or lawyer has violated an existing discovery order. Rule 4019(g)(1) provides that where a court “enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motions or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney’s fees incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” Pa.R.C.P. 4019(g)(1).

      . The Supreme Court of Pennsylvania has adopted special discovery provisions and pre-trial procedures which apply only to professional liability actions and are designed to expedite the disposition of such cases. Those rules govern the production of expert reports, see Pa.R.C.P. 1042.26 — 1042.32, the issuance of scheduling orders, see Pa.R.C.P. 1042.41, and the scheduling of court-ordered mediation, case management conferences, and pre-trial conferences. See Pa.R.C.P. 1042.21, 1042.41, 1042.51. Under Pa.R.C.P. 1042.51(c), each county court administrator must file biannual reports with the Administrative Office of the Pennsylvania Courts identifying “all medical professional liability cases that have not been tried within nine months of a pre-trial conference scheduled pursuant to this rule.”

        . Rule 30(g)(1) previously read that “[i]f the party giving the notice of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by the party and that party’s attorney in attending, including reasonable attorney’s fees.” Novak Site RD/RA Performing Parties v. SBC Holdings. Inc., 2014 WL 3508657, at * 1 (E.D. Pa. 2014). Current Federal Rule 30(g)(1) states that “[a] party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney’s fees, if the noticing party failed to...attend and proceed with the deposition.” Fed. R. Civ. P.30(g)(1).

      . It also bears noting that Rule 1023.4(b)(1) provides that “[m]onetary sanctions may not be awarded against a represented party for violation of Rule 1023.1(c)(2).” Pa.R.C.P. 1023.4(b)(1).


source: Caselaw Access Project

author: KUHN, J.,

license: Public Domain

text:
    ACNB Bank v. Singh

      C.P. of Adams County,
    No. 2013-S-796

      Edward G. Puhl, for plaintiff.

      Guy P Beneventano, for defendants.
    Aug. 25, 2014
   KUHN, J.,

— Before this court for disposition are plaintiff’s exceptions to sheriff’s amended proposed schedule of distribution (“distribution”). For the reasons set forth herein, said exceptions are sustained.

Plaintiff commenced this action by filing a complaint in mortgage foreclosure on June 21,2013, against defendants (hereinafter “owners”). On November 22,2013, judgment was entered by default. On March 21, 2014, the property was sold at a Sheriff’s Sale. On April 11,2014, an amended proposed schedule of distribution was completed which provided, in relevant part, that a municipal lien held by Latimore Township (“Township”) would hold priority over the mortgage held by plaintiff. On April 16, 2014, plaintiff filed exceptions to sheriff’s amended proposed schedule of distribution. By order dated April 21, 2014, township, and any other interested party, was directed to show cause why the relief in plaintiff’s exceptions should not be granted. Additionally, an evidentiary hearing and argument were scheduled for June 6, 2014. On May 12, 2014, township filed its response to exceptions filed by ACNB Bank. On June 6,2014, no testimony was presented but argument occurred as scheduled.

Priority of adverse liens is generally determined by the date in which they are filed of record. 42 Pa.C.S.A. § 8141. On February 5, 2004, the mortgage on the property was recorded in the Office of the Recorder of Deeds of Adams County in Record Book 3461 at page 144. On May 14,2013, Township filed a Municipal Claim pursuant to the Municipal Claims and Tax Liens Act, 53 P.S. § 7101, et seq. (hereinafter “the MCTLA”) against the subject property in No. 13-TL-257. Based on the dates of recordation plaintiff’s mortgage would appear to have priority over Township’s municipal claim.

Flowever, one exception to the first in time, first in right rule regarding adverse liens, is a municipal claim filed under Section 7106(a) of the MCTLA, 53 P.S. § 7106(a). That section provides, inter alia, that municipal claims should have priority and be satisfied out of the proceeds of any judicial sale before any other “obligation, judgment, claim, lien, or estate with which the said property may be charged...” Id. Municipal claims are defined, in relevant part, as a “claim filed to recover...for the removal of nuisances...” 53 P.S. §7101.

Here, Township’s municipal claim arises out of two orders awarding attorney fees in cases docketed at no. 2010-S-1202 and 2010-S-1343. The background of those cases is relevant to the disposition of the issue sub judice. The owners acquired the property on January 29, 2004, and operated it as a convenience store and gas station. In August 2009 the owners placed a 20’ x 20’ shed behind the store which appeared to be used for living purposes. Shortly thereafter, the Township notified the owners that a zoning permit was needed to place the new structure on the property and that they had to submit a land development plan. On December 3,2009, the owners submitted a land development plan to the Township. On December 7, 2009, the township enforcement officer issued an enforcement notice to the owners alleging that they violated the township zoning ordinance by placing the structure without a building permit and for occupying it without an occupancy permit. The owners were notified of their right to appeal that notice within 30 days but failed to do so.

On July 2,2010, the Township issued its decision dated June 17, 2010, in which it denied the land development plan. On July 21, 2010, the owners filed a land use appeal from this decision at 2010-S-1202.

Meanwhile, the Township had filed a civil action before the local magisterial district court against the owners for placing the structure in violation of the zoning ordinance. On July 30, 2010, that court entered judgment in favor of the Township. The owners appealed and the Township filed a complaint on August 31, 2010, at 2010-S-1343 which included a request for injunctive relief.

Eventually the two actions were consolidated for disposition. By order and opinion dated January 26, 2011, the court 1) in no. 1202 affirmed the decision of the Township in denying the land development plan and 2) in no. 1343 granted the Township’s request for a preliminary injunction and awarded the Township attorney fees and costs. By order dated November 9, 2012, those attorney fees were set at $16,695.33 for the period through September 12, 2011, and by order dated March 1, 2013, additional attorney fees of $10,592.00 were imposed. It is the combination of those two awards of attorney fees, totaling $27,287.33, which formed the basis for the Township’s municipal claim in no. 13-TL-257.

Plaintiff avers that township’s municipal claim does not qualify as such under the MCTLA. It argues that municipal claims under the MCTLA generally arise out of, or result from, tax, service, work done, improvement authorized and undertaken, and other categories or work done and improvements made. Plaintiff avers that Township’s municipal claim provides no grounds for the assertion that the attorneys’ fees sought are for work done or services supplied under the MCTLA. Plaintiff acknowledges that Township has a valid judgment against owners, but denies that Township’s judgment enjoys priority over plaintiff’s mortgage lien.

Township avers that the municipal claim relates to the removal of a nuisance, namely the illegal use of a storage shed as an apartment. It is further averred that such illegal use constituted a nuisance under Latimore Township’s Zoning Ordinance, specifically Section 306 (Uses with Nuisance Effect), which states “in no case is a use permitted which by reason of noise, dust, odor, appearance, or other objectionable factor creates a hazard, or other substantial effect upon the reasonable enjoyment of the surrounding property.” As such, Township avers that the attorney’s fees which were awarded resulted from its efforts to remove the nuisance as defined under the zoning ordinance which then qualifies as removing a nuisance under the MCTLA and therefore gives the municipal claim priority over plaintiff’s mortgage.

Upon review of the case, it does not appear that the existence or removal of a nuisance was ever pleaded or established by Township. The land use appeal, no. 2010-S-1202, regarded denial of the plan and improper review of the plan under the requirements of Township’s zoning ordinances. Township’s complaint, no. 2010-S-1343, sought injunctive relief for defendants’ violation of Latimore Township’s Zoning Ordinance. Township did not raise the issue of a nuisance in either case. Furthermore, a zoning ordinance violation is not alone sufficient as conclusive evidence of a nuisance or nuisance per se. Tid Bit Alley, Inc. v. Erie County, Erie County Dept. of Health, 103 Pa. Commw. 46, 520 A.2d 70 (1987). In the underlying matter, the Township did not plead or prove that the shed has a nuisance effect. Additionally, in its municipal claim, Township fails to offer this court any facts or evidence which would otherwise establish the municipal claim as being authorized as a municipal claim for priority purposes under the MCTLA.

Therefore, this court concludes that the attorney’s fees awarded to Township resulted from litigation stemming from violations of zoning ordinances and not from the removal of a nuisance, and as such, Township’s municipal claim does not enjoy priority over a previous, validly recorded mortgage on the property.

Accordingly, the attached order is entered.

ORDER OF COURT

And now, this 25th day of August, 2014, upon consideration of the exceptions to sheriff’s amended proposed schedule of sale, filed on behalf of plaintiff, ACNB Bank, formerly known as Adams County National Bank, it is hereby ordered, adjudged and decreed that the exceptions are sustained and plaintiff’s writ of execution for 250 Ridge Road, York Springs, Pennsylvania 17372 enjoys priority over the Latimore Township municipal claim against said property made in 13-TL-257.

      . No. 2010-S-1202 is captioned Parminder Singh and Paramjit Kaur, Appellants v. Latimore Township, Appellee. No. 2010-S-1343 is captioned Latimore Township v. Parminder Singh and Paramjit Kaur.

        . The background is garnered from the record in those cases.


text:
    Commonwealth v. Dominick

      C.P. of Lackawanna County,
    No. 13 CR 2273

      Eugene M. Talar ico, Jr., William J. Fisher, Brian J. Gallagher and Jamie L. Davis, for Commonwealth.

      Bernard J. Brown, for defendant.
    Sept. 3, 2014
   NEALON, J.,

— On August 22, 2014, Joseph P. Kohut, III of The Scranton Times-Tribune submitted a written request for copies of letters that were delivered to the undersigned in connection with the sentencing of defendant, Jason Dominick (“Dominick”), on August 1, 2014. By order dated August 22, 2014, the Commonwealth and Dominick were directed to file, by no later than August 29, 2014, “their written response or position with respect to the release of those letters to The Scranton Times-Tribune.” (Docket entry no. 122). On August 26, 2014, the Commonwealth filed its written response stating that “’the Commonwealth does not have an objection to the disclosure to The Scranton Times-Tribune of written letters submitted to the court in connection with the sentencing of Jason Dominick on August 1, 2014.” (Docket entry no. 124). Defendant has not filed his written response or position in accordance with the order of August 22, 2014. Nevertheless, the request of The Scranton Times-Tribune is now ripe for disposition.

By way of relevant background, on May 10, 2014, Dominick was convicted of third-degree murder and criminal conspiracy to commit third-degree murder relating to the shooting death of Frank Bonacci on July 20, 2013. (Transcript of proceedings (“T.P.”) on 5/10/14 at pp. 15-16). Pursuant to Pa.R.Crim.P. 702(A) and 704, a presentence investigation report was ordered to be prepared within ninety days, (Id. at pp. 17-18), and Dominick’s sentencing was scheduled for August 1, 2014. (Docket entry no. 94). In anticipation of that sentencing, the undersigned received, reviewed and considered twenty-one letters that were submitted by friends and family of Dominick and Frank Bonacci. (T.P. on 8/1/14 at pp. 3-4,51.). Defendant was sentenced to be incarcerated at a state correctional facility for a minimum period of forty years to a maximum term of eighty years. (Id. at pp. 52-53). Since Dominick’s sentences in this case were ordered to run consecutively to the sentence of thirty months to sixty months incarceration that Dominick received for his conviction of theft by unlawful taking in Com. v. Dominick, No. 12 CR 53 (Lacka. Co.), Dominick’s aggregate sentence was imprisonment for a minimum period of forty-two and one-half (42 VI) years to a maximum term of eighty-five (85) years. (Id. at pp. 53-54). Four weeks after Dominick’s sentencing, The Scranton Times-Tribune filed the instant request for copies of the foregoing letters that were delivered to the undersigned in advance of the sentencing hearing.

Pennsylvania has long recognized a common law right of access to inspect and copy judicial records and documents. Guarrasi v. Scott, 25 A.3d 394, 401 (Pa. Cmwlth. 2011). We have previously relied upon the common law right of access in refusing to seal settlements of newsworthy litigation of legitimate public concern, see White v. Behlke, 2009 WL 1498679, at *6-7 (Lacka. Co. 2009), or those involving the disbursement of public funds. See Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129, 136-137 (Lacka. Co. 2004) (malpractice settlement partially paid by Medical Care Availability and Reduction of Error (MCare) Fund which was subsidized by excise taxes assessed on the sale or possession of cigarettes). As a threshold inquiry under the common law right to access doctrine, the reviewing court must determine whether the documents sought to be examined or copied are “public judicial documents.” Barros v. Martin, 92 A.3d 1243, 1251 n. 10 (Pa. Cmwlth. 2014); Com. v. Martinez, 917 A.2d at 860. “Documents that are filed with the court and, in particular, those that are used by the judge in rendering a decision are clearly considered public judicial documents.” Guarrasi, supra (quoting Com. v. Long, 592 Pa. 42, 52, 922 A.2d 892, 898 (2007)). However, “the right to inspect judicial documents is not absolute,” Barros, supra, and courts possess supervisory power over their records and may withhold a record from public inspection if the common law right of access is outweighed by countervailing factors. Martinez, 917 A.2d at 862 (quoting Com. v. Fenstermaker, 515 Pa. 501, 513, 530 A.2d 414, 420 (1987)). A trial court’s decision regarding access to judicial documents is within the sound discretion of the trial court, and will be reversed on appeal only for an abuse of that discretion. Com. v. Phillips, 946 A.2d 103, 108 (Pa. Super. 2008), app. denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. denied, 556 U.S. 1264 (2009).

In Martinez, the Superior Court of Pennsylvania squarely addressed “whether the news media enjoys a common law right of access, after sentencing in a criminal case, to letters presented to the sentencing court by defense counsel on a defendant’s behalf.” Martinez, 917 A.2d at 858. After observing that “[t]he threshold inquiry in a case where a common law right of access is asserted is whether the documents sought to be disclosed constitute public judicial documents,” the Martinez court “emphasized that the level of the reliance placed on a document in the judicial decision-making process is a key factor in making this determination.” Id. at p. 860. Writing for the unanimous court, Judge Jack Panella concluded:

Given the open nature of criminal trials, and sentencing proceedings in particular, we find that letters submitted to a sentencing court by defense counsel at the time of sentencing, which the sentencing court explicitly reviews in preparation for sentencing, are public judicial documents regardless of whether the sentencing court formally dockets the letters. As public judicial documents, there is a presumption of public access to the documents.

Id. at 861-862.

Although the classification of the letters as “public judicial documents” creates a presumption of access, “[wjhere the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied.” Id. at 862 (quoting Fenstermaker, 515 Pa. at 513, 530 A.2d at 420); accord, Barros, supra. If no such “countervailing factors” are identified, access to the public judicial document should be granted. Martinez, 917 A.2d at 862-863. Since “the Commonwealth, Martinez and the sentencing court failed to identify any countervailing factors,” the Superior Court held that the letters presented to the sentencing court were discoverable and “that the sentencing court abused its discretion in denying the [newspaper’s] motion for access to the letters.” Id. (emphasis in original).

The transcript of Dominick’s sentencing hearing on August 1,2014, confirms that the undersigned “did receive and review and consider twenty-one letters that were submitted by family and friends of the victim [Bonacci] and the defendant [Dominick].” (T.P. 8/1/14 atp. 3). Since those letters were reviewed and considered as part of the sentencing process in this case, they constitute “public judicial documents” under Martinez, regardless of whether they were submitted by the defense, the Commonwealth, or concerned citizens. Furthermore, inasmuch as neither the Commonwealth nor Dominick has identified any “countervailing factors” or other reasons why public access to the twenty-one letters should be denied, they are clearly discoverable by The Scranton Times-Tribune. Consequently, the written request for copies of the letters will be granted.

And now, this 3rd day of September, 2014, upon consideration of the written request by Joseph P. Kohut, III, of The Scranton Times-Tribune for access to and copies of letters delivered to the undersigned in connection with the defendant’s sentencing on August 1, 2014, and in light of the lack of any stated opposition thereto by the Commonwealth and defendant, and based upon the reasoning set forth above, it is hereby ordered and decreed that the written request of The Scranton Times-Tribune for copies of the twenty-one letters submitted to the undersigned in connection with the sentencing of defendant, Jason Dominick, on August 1,2014, is granted, and that those letters shall be furnished to Joseph P. Kohut, III, of The Scranton Times-Tribune.

      . Federal and state courts have also “note[d] that there is a qualified first amendment right of access to certain judicial proceedings and documents.” Com. v. Martinez, 917 A.2d 856, 860 (Pa. Super. 2007) (citing Richmond Newspapers. Inc. v. Virginia, 448 U.S. 555 (1980)).


author: HERTZBERG, J.,

text:
    Clifton v. Bruscemi

      C.P. of Allegheny County,
    No. GD 12-24293; 76 and 107 WDA 2014

      James Mahood, for plaintiff.

      Jeffrey A. Hulton, for defendant.
    Feb. 12, 2014
   HERTZBERG, J.,

— Defendant Joanne Bruscemi and plaintiff Cynthia Clifton both have appealed to the Superior Court of Pennsylvania from my ruling that Ms. Bruscemi must transfer her joint ownership interest in a dwelling to Ms. Clifton. This opinion provides the reasons for my ruling. See Pa. R.A.P. No. 1925(a).

In 1993 Ms. Clifton and Ms. Bruscemi were involved in a relationship and began living together in an apartment. In 1995 Ms. Clifton and Ms. Bruscemi moved to a single family home located at 266 Harrison Road, Turtle Creek, PA 15145. At that time, the title to the home was solely in Ms. Clifton’s name, but in 2003 Ms. Clifton signed a deed transferring ownership to Ms. Bruscemi and Ms. Clifton as joint tenants. The recorded deed contains a clause that makes it subject to an agreement between Ms. Clifton and Ms. Bruscemi. Paragraph 4 of that agreement states:

If the relationship of CYNTHIA and JOANNE should terminate, then JO ANNE agrees to transfer the residence immediately, upon vacating the property, back to CYNTHIA in exchange for payment by CYNTHIA to JOANNE of 50% of the assessed value of the property at the time of termination less $60,000.

In October of 2012, the relationship of Ms. Clifton and Ms. Bruscemi terminated. Ms. Clifton then filed the lawsuit that initiated this litigation. The lawsuit requested that Ms. Bruscemi be compelled to sign a deed transferring her interest in the home to Ms. Clifton.

The dispute was tried before me, and on December 2, 2013 I signed a decree directing Ms. Bruscemi to transfer her interest in the home to Ms. Clifton, with no payment due from Ms. Clifton. The decree also directed Ms. Clifton to satisfy a mortgage both her and Ms. Bruscemi had signed and to pay all expenses of the transfer of Ms. Bruscemi’s interest. Both Ms. Clifton and Ms. Bruscemi timely filed motions for post trial relief, which I denied. Both then filed timely appeals to the Superior Court and statements of matters complained of on appeal. Since Ms. Bruscemi was first to appeal, the issues she plans to raise in her appeal will be addressed first.

Ms. Bruscemi argues that I made an error by finding the written agreement is not ambiguous. See defendant’s concise statement of matters on appeal (“defendant’s statement of appeal” hereafter), ¶ no. 1. I acknowledge struggling during trial with enforcing the written agreement because it omits provisions identifying responsibility for the deed transfer tax and the mortgage, and also because it does not limit Ms. Clifton’s ability to unilaterally declare the relationship terminated. As a result, I did say during the trial that the agreement is ambiguous. However, after considering the parties’ written closing arguments, I determined that my concerns did not make the agreement “ambiguous” under its Pennsylvania law definition. To be ambiguous, the agreement has to be capable of being understood in more than one sense. See Hutchison v. Sunbeam Coal Co., 513 Pa. 192 at 201, 519 A.2d 385 at 390 (1986). The omitted provisions and the unilateral, unlimited right provided to Ms. Clifton do not have the effect of giving what is set forth in the agreement more than one meaning. Accordingly, I was correct in finding that the agreement is not ambiguous.

Ms. Bruscemi also argues that, because she paid for half of the home’s expenses (mortgage, utilities, taxes, etc.), I made an error by ordering her to transfer her ownership interest to Ms. Clifton without requiring Ms. Clifton to pay any compensation. See defendant’s statement of appeal, ¶ no.2. The testimony established that there were two agreements between the parties. The first of the agreements was oral, made in 1993 when they began living together, and simply was that each of them would pay half of their housing expenses. The second agreement is the 2003 written agreement appended to the deed transferring the home owned by Ms. Clifton to Ms. Clifton and Ms. Bruscemi as joint tenants. No evidence was presented of any provision in either agreement to compensate Ms. Bruscemi based on her. payment of half of the housing expenses. The only applicable provision of either agreement is paragraph 4 of the written agreement. That provision requires Ms. Clifton to pay Ms. Bruscemi “50% of the assessed value of the property...less $60,000.” The assessed value is $98,000, hence 50% of that is $49,000, less $60,000 is negative $11,000. Since the applicable provision yields a negative payment amount from Ms. Clifton, I was correct in not requiring any payment from her to Ms. Bruscemi.

Ms. Bruscemi also argues that I should have applied the formula in paragraph 3 of the agreement, which states:

The consideration for this transfer is that JOANNE agrees to grant to CYNTHIA the first right of first refusal to purchase the residence at any time at the real estate assessed value less $60,000 as indicated in the following sentence. If the residence is sold at any time to any entity, CYNTHIA shall receive the first $60,000 of the gross sale price before expenses with the net remainder split between CYNTHIA and JOANNE as joint owners of the property.

See defendant’s statement of appeal, ¶ no. 3. While this formula results in a different final amount than the formula in paragraph 4, it applies when the home is sold, which did not occur. Ms. Bruscemi argues paragraph 3 applies because Ms. Clifton testified there is no difference between paragraphs 3 and 4 with respect to distribution of funds between the parties. See T., p. 40. Ms. Clifton is wrong and there is a difference, but she gave no testimony on whether she believes that $60,000 should be subtracted first or last. Hence, her testimony that they are the same, when they are not, cannot be equated to an endorsement of either formula. In other words, she could just as easily have meant that the formula in paragraph 4, rather than paragraph 3, applies. Since Ms. Clifton’s trial exhibits verify this was her position (see exhibits 4 and 6), there is no merit to the argument that the formula in paragraph 3 applies.

Ms. Bruscemi’s final argument is that I made a mistake by finding that Ms. Clifton’s use of self-help to evict Ms. Bruscemi is not a breach of the agreement. See defendant’s statement of appeal, ¶ no. 4. However, since it is implicit in paragraph 4 that Ms. Bruscemi will vacate the home if her relationship with Ms. Clifton terminated, Ms. Bruscemi is the party who breached the agreement by not vacating the home. Ms. Clifton’s use of physical force to coerce Ms. Bruscemi to comply with the agreement was improper and could have been the basis for a civil tort claim (Ms. Bruscemi elected not to assert any personal injury claim). But it did not violate any term of the agreement. Therefore, I was correct in determining it was not a breach of the agreement.

Next I will address the issues Ms. Clifton plans to raise in her appeal.

Ms. Clifton argues I erred by ordering her to satisfy the mortgage by refinance or sale of the home. See plaintiff’s statement of matters complained of on appeal (“plaintiff’s statement of appeal” hereafter), ¶ no. 1. However, Ms. Clifton’s argument against my order for her to refinance clearly is defeated by her agreement on the record that she would refinance (see T., pp. 17 and 210). If Ms. Clifton could not obtain approval for a refinance loan, it would be inequitable for Ms. Bruscemi to be stripped of ownership while remaining obligated to pay the mortgage. See T., p. 129. I therefore ordered Ms. Clifton to satisfy the mortgage by selling the home if she were unable to do so by refinance. Hence, there is no merit to the argument that I erred by ordering the refinance or sale of the home, and in any event, the sale issue is moot because Ms. Clifton was able to refinance. See ¶ no. 12 of petition to enforce decree filed 1/24/14 and order dated 1/23/14.

Ms. Clifton also argues I made a mistake by denying her counsel fee claim because allegedly I “agreed at trial to bifurcate those claims to separate proceedings.” Plaintiff’s statement of appeal, ¶ No. 2. The transcript from the trial plainly demonstrates that Ms. Clifton, rather than the undersigned, is mistaken:

Mr. Mahood: Your Honor, as to the claim for fees that we have raised, the claim for counsel fees, my thought would be that it would make most sense to sort of bifurcate that from the trial of the rest of the matter and in part because I don’t know what the final number is going to be until we have finished this proceeding. My suggestion would be that we present that by petition subsequent to the proceeding before the court.
The court: Any objection to that?
Mr. Hulton: I don’t see how in any way section 2503 applies, but I have no objection to the court considering that later.
The court: Well, I think that as to whether it applies or not you’re going to have to put any evidence of that in here, but assuming that you meet that burden, you are talking about the amount that would be handled in that other process; is that correct:
Mr. Mahood: Yes, your honor, and we believe that the evidence is already in the record as far as the entitlement fees.

T., pp. 88-89. Thus, the issue of whether plaintiff was entitled to any award of counsel fees under 42 Pa. C.S. §2503 was not bifurcated to a separate proceeding. Assuming I found Ms. Clifton entitled to an award of counsel fees, then the determination of the amount of the award would be bifurcated to a separate proceeding. Since I did not find from the evidence submitted at trial that Ms. Bruscemi’s conduct was “dilatory, obdurate or vexatious during the pendency...” of the litigation (see 42 Pa. C.S. §2503(7)), there could not be any award of counsel fees that would require another proceeding to calculate.

Ms. Clifton also argues I erred by not awarding her money damages. See plaintiff’s statement of appeal, ¶ nos. 3 and 7. Ms. Clifton and Ms. Bruscemi had an oral agreement to split their housing expenses such as the mortgage and utilities, and for approximately two months before Ms. Bruscemi vacated the home, she did not pay her share. Ms. Clifton ended up having to pay Ms. Bruscemi’s share, which she alleges amounted to $2,613.95. See exhibit 8.1 did not award Ms. Clifton any of these damages because of testimony I found credible that they were offset by housing expense payments Ms. Bruscemi made for Ms. Clifton when she was unemployed and underemployed. T., pp. 102-103. While the testimony at the trial did not establish the precise amount of Ms. Clifton’s share of the expenses paid by Ms. Bruscemi, Ms. Clifton admitted she was unemployed a “couple months” and underemployed for an additional period of time. T., p. 70. Since this amount of time was equivalent or greater than the amount of time Ms. Bruscemi had not paid her expenses, I was correct to not award Ms. Clifton money damages.

Ms. Clifton also argues I erred by finding she utilized “self help” and assaults upon Ms. Bruscemi to obtain exclusive possession of the home. See plaintiff’s statement of appeal, ¶ no. 4. While Ms. Clifton testified this was untrue, I found the testimony of Ms. Bruscemi and John Francis that his had occurred to be more credible. See T., pp. 94-97 and 200-203. Since determinations of credibility are left to the judge in a non-jury trial, there can be no error in my determination that Ms. Clifton assaulted Ms. Bruscemi.

Ms. Clifton also argues I made a mistake by determining the home’s assessed value is $98,000. See plaintiff’s statement of appeal^ no. 5.Exhibit3 is the 2012 Allegheny County Assessment, and it lists a “full market value” of $98,000 and a “County assessed Value” of $83,000. Ms. Clifton argues I should have used the $83,000 “County Assessed Value.” The two different values are due to Allegheny County’s $ 15,000 tax exclusion on homesteads. See 53 Pa. C.S. §8581-8586. Since the $15,000 is an amount that Allegheny County decided to “exclude from taxation...of the assessed value” (53 Pa. C.S. §8583(a)), my decision that $98,000 is the assessed value is correct.

Ms. Clifton also argues I erred by finding the parties relationship terminated in October of 2012 because the evidence establishes it was August of 2012. See plaintiff’s statement of appeal, ¶ no. 6. Ms. Clifton does not explain the significance of this alleged error. In any event, Ms. Clifton testified the relationship terminated in “the fall of 2012” (T., p. 21), “early fall of 2012” (T., p. 26) and “August of 2012” (T., p. 29). Since this inconsistent testimony left me uncertain over when the relationship terminated, I was more comfortable with the earliest date documented by a letter from Ms. Clifton’s counsel. See exhibit 4, letter dated October 26, 2012. Therefore, I did not make an error by finding the parties’ relationship terminated in October of 2012.

Ms. Clifton’s final argument is that I erred by not ordering Ms. Bruscemi “to file a complete accounting of her management and use of the parties’ joint account.” Plaintiff’s statement of appeal, ¶ no. 7. Ms. Clifton’s requests for an accounting relative to the joint account reference only Ms. Bruscemi’s failure to pay bills from the account in November of 2012 and subsequent withdrawal of all funds from it. See complaint ¶ nos. 28-38 and plaintiff’s pretrial statement. Since Ms. Clifton offered into evidence the bank statements from this joint account from September 26, 2012 until its closure on November 27, 2012 as well an online bill pay history covering that same time period {see exhibits 8-a, 12 and 13), Ms. Clifton received the accounting she requested. Therefore, I was correct in not ordering any accounting.

      . While Ms. Clifton argues only that the counsel fee denial was erroneous because the issue was allegedly to be bifurcated, my decision that the evidence submitted at trial did not justify a counsel fee award for dilatory, obdurate or vexatious conduct also was not an abuse of my discretion. See Gall v. Crawford, 2009 PA Super. 187, 982 A.2d 541 at 549-550, appeal denied 12 A.3d 752, 608 Pa. 655.

      .1 believe the real amount to be closer to $2,000 since exhibit 8 is premised on expenses for the entire month of January, but the undisputed testimony was that Ms. Bruscemi vacated the home on January 10. T., p. 203.

      . The township and school district where the home is located may not have had any homestead exclusion or may have excluded an amount greater or less than $15,000.