J-A26012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LIBERTY MUTUAL INSURANCE, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

NICOLE SANDERS,

Appellee

ERIE INSURANCE EXCHANGE,

Appellant

v.

NICOLE SANDERS,

Appellee No. 1570 WDA 2015

Appeal from the Order Entered September 11, 2015

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): 

AR 13-000916

GD 13-002907

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 29, 2016

Liberty Mutual Insurance and Erie Insurance Exchange (hereinafter, 

“Appellants”) appeal from the September 11, 2015 order, which, inter alia, 

granted Nicole Sanders’ (hereinafter “Sanders”) motion for summary 

judgment. After careful review, we affirm.

The trial court briefly summarized the facts of this case, as follows:
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On March 5, 2011, [Sanders] was a student at the Art 

Institute of Pittsburgh. She was cooking in her dormitory room 

on an electric stove provided to her by the school. For reasons 

that are not known, a fire started while [Sanders] was cooking 

on the stove. The fire triggered an alarm and the activation of 

water sprinklers that damaged several rooms. In early 2012, 

the stove was removed and destroyed. No record exists of the 

removal and disposal. No testing or examination of the stove 

was conducted.

Trial Court Opinion (TCO), 12/10/15, at 2.

In early 2013, Appellants filed separate complaints against Sanders, 

alleging that she negligently caused the fire and, thus, she was liable for the 

resulting damage.1 Sanders filed an Answer and New Matter, as well as a 

motion to consolidate the two cases, which the court granted. On June 2, 

2015, Sanders filed a motion for summary judgment. Within that motion, 

she asserted that Appellants had committed spoliation of evidence by 

disposing of the stove involved in the fire, without first permitting Sanders to 

inspect or test it, and without inspecting it themselves. See Sanders’ Motion 

for Summary Judgment, 6/2/15, at 4 (unnumbered). Sanders requested 

that, as sanction for Appellants’ spoliation of evidence, they should be 

precluded from presenting any evidence regarding the cause of the fire. Id. 

at 6 (unnumbered). 

____________________________________________

1

Liberty Mutual Insurance also included a breach of contract claim, alleging 

that, pursuant to a “Student Housing License Agreement” completed by 

Sanders, she was contractually liable for the damage arising from the fire 

that her negligent conduct had caused. See Liberty Mutual Insurance 

Complaint, 2/14/13, at 4 (unnumbered).
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Appellants filed a response to Sanders’ motion for summary judgment, 

and a hearing was conducted on August 31, 2015. That same day, the trial 

court issued an order stating that Liberty Mutual Insurance would not be 

permitted to present any evidence concerning the cause of the fire. See 

Trial Court Order, 8/31/15 (single page). The order also granted Sanders’ 

motion for summary judgment. Id. On September 11, 2015, the court 

issued a second order clarifying that the August 31st order precluded both 

Liberty Mutual and Erie Insurance from presenting evidence regarding the 

cause of the fire. The order also reiterated that Sanders’ motion for 

summary judgment was granted against both Appellants, Liberty Mutual and 

Erie Insurance.

Appellants filed a timely notice of appeal, and also timely complied 

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Herein, they present three questions for our 

review, which we have reordered for ease of disposition:

1. Did the lower court err and/or abuse its discretion by 

misapplication of the Schmid v. Milwaukee Elec. Tool Corp., 

three-prong spoliation test, in finding fault to such an extent and 

such prejudice as to justify a finding of spoliation and a grant of 

summary judgment?

2. Did the lower court err and/or abuse its discretion by 

misapplication of the Schmid v. Milwaukee Elec. Tool Corp., 

three-prong spoliation test, in finding that a grant of summary 

judgment, thereby disposing of all claims and all parties, was the 

least restrictive sanction?

3. Did the lower court err and/or abuse its discretion in 

concluding that [Appellants have] failed to produce[] evidence of 

genuine issues of material fact and evidence of facts essential to 
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the cause of action such that [Sanders] is entitled to summary 

judgment, viewing all facts in the light most favorable to the 

non-moving party?

Appellants’ Brief at 4.

Before addressing Appellants’ arguments, we summarize the applicable 

legal principles that guide our review of their spoliation-of-evidence issues. 

Our Supreme Court has explained that, “‘[s]poliation of evidence’ is the nonpreservation or significant alteration of evidence for pending or future 

litigation.” Pyeritz v. Com., 32 A.3d 687, 692 (Pa. 2011) (footnote 

omitted).

When reviewing a court's decision to grant or deny a 

spoliation sanction, we must determine whether the court 

abused its discretion. Croydon Plastics Co. v. Lower Bucks 

Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (“the 

decision whether to sanction a party, and if so the severity of 

such sanction, is vested in the sound discretion of the trial 

court”), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). “An 

abuse of discretion is not merely an error in judgment; rather it 

occurs when the law is overridden or misapplied, or when the 

judgment exercised is manifestly unreasonable or the result of 

partiality, prejudice, bias or ill-will.” Pilon v. Bally Eng'g 

Structures, 435 Pa. Super. 227, 645 A.2d 282, 285, appeal 

denied, 539 Pa. 680, 652 A.2d 1325 (1994).

Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 

1263, 1269 (Pa. Super. 2001). 

To determine the appropriate sanction for spoliation, the trial 

court must weigh three factors:

(1) the degree of fault of the party who altered or 

destroyed the evidence; (2) the degree of prejudice 

suffered by the opposing party; and (3) whether there is a 

lesser sanction that will avoid substantial unfairness to the 

opposing party and, where the offending party is seriously 
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at fault, will serve to deter such conduct by others in the 

future.

Mount Olivet, 781 A.2d at 1269–70 (quoting Schmid v. 

Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.1994)).[2]

In this context, evaluation of the first prong, “the fault of the 

party who altered or destroyed the evidence,” requires 

consideration of two components, the extent of the offending 

party's duty or responsibility to preserve the relevant evidence, 

and the presence or absence of bad faith. See Mount Olivet,

781 A.2d at 1270. The duty prong, in turn, is established where: 

“(1) the plaintiff knows that litigation against the defendants is 

pending or likely; and (2) it is foreseeable that discarding the 

evidence would be prejudicial to the defendants.” Id. at 1270–

71.

Creazzo v. Medtronic, Inc., 903 A.2d 24, 29 (Pa. Super. 2006) 

(original brackets omitted).

PTSI, Inc. v. Haley, 71 A.3d 304, 316 (Pa. Super. 2013).

Here, the trial court discusses, in its Rule 1925(a) opinion, how it 

applied the three-pronged spoliation test to the facts of this case, as follows: 

[Appellants] cannot seriously contend that [they] lack[] 

fault in the destruction of the stove. [Appellants] admitted that 

the stove was removed, not preserved and not tested. Fault for 

the lack of preservation is squarely on [Appellant] companies, 

and not on [Sanders], a young college student. It is equally 

clear that [Sanders] suffered significant prejudice. [Appellants] 

allege[] that [Sanders] acted negligently. Yet the very stove she 

used and contends may have malfunctioned was destroyed well 

before [Appellants] sued [Sanders]. [Appellants] did not appear 

to contest the first two prongs at argument. [Appellants’] 

counsel stated that[,] “Our argument kind of begins and ends 

with the least-restrictive sanction portion of this test.” 

____________________________________________

2 The three-part spoliation test set forth in Schmid was adopted by our 

Supreme Court in Schroeder v. Commonwealth, Department of 

Transportation, 710 A.2d 23, 27 (Pa. 1998).
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The essence of [Appellants’] argument is that the [c]ourt 

erred in finding that preventing [Appellants] from producing 

evidence concerning the cause of the fire and granting Summary 

Judgment was too extreme a remedy. Our [c]ourts have been 

given discretion to impose a range of sanctions where spoliation 

is found. Preventing [Appellants] from presenting evidence 

concerning the cause of the fire is appropriate where 

[Appellants] recognized the potential for claiming [Sanders] was 

at fault and failed to preserve evidence that may have permitted 

[her] to challenge [their] assertions against her. We believe this 

to be the only appropriate remedy under the facts of this case.

TCO at 3-4 (internal citations to the record and case law omitted).

On appeal, Appellants’ first two issues challenge the court’s application 

of the Schmid test to the facts of this case. First, in regard to the fault 

prong of the Schmid test, Appellants’ concede that they are at fault for the 

disposal of the stove. Appellants’ Brief at 13. They acknowledge that they 

“knew that litigation as to the fire was likely and it [was] arguably 

foreseeable that discarding the stove could be prejudicial” to Sanders, thus 

establishing that they had a duty to preserve the evidence of the stove. Id. 

at 14; see also Mount Olivet, 781 A.2d at 1270-71. Appellants contend, 

however, that their “degree of fault is minimal.” Appellants’ Brief at 13. In 

support, they repeatedly claim that, “the stove was not immediately 

discarded. Instead, the stove was cleaned and remained in the dorm room 

for several months following the fire. During that time, the stove would 

have been available to Sanders or her insurance carrier.” Id. at 14. 

Appellants’ also point out that in September of 2011, they advised Sanders’ 

insurance carrier “that the stove was cleaned after the fire and returned to 
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use[,]” suggesting that Sanders could have, and should have, inspected the 

stove at that time. Id. 

Upon reviewing the documents cited by Appellants in support of their 

claims, it is apparent that Appellants are misrepresenting the record. For 

instance, in support of their claim that the stove was cleaned and returned 

to use for several months before being discarded, Appellants cite Erie 

Insurance’s response to Sanders’ request for admissions. In that document, 

Erie Insurance stated, in pertinent part:

6. Admitted in Part. Denied in Part. It is admitted that on behalf 

of [Erie Insurance], counsel for [Erie Insurance] spoke to Ryan 

Cunningham who is an agent, servant, workman and/or 

employee of the Art Institute of Pittsburgh who during the course 

of this conversation indicated that the maintenance crew advised 

him that the subject stove was removed sometime before early 

2012.

7. Objection to the extent that this request for admission calls 

for a legal conclusion. Without waiving this objection, this 

averment is denied in that [Erie Insurance’s] claim is related to 

[Sanders’] improper use of the stove. [Erie Insurance] had no 

knowledge at the time or to this date that there was any alleged 

defect or problem with the stove.

8. It is admitted through [Erie Insurance’s] counsel’s 

conversation with Ryan Cunningham that Mr. Cunningham 

indicated he had no record of the disposal of the stove.

...

10. Objection. [Sanders] does not define what is meant by 

direct access. Once this is defined [Erie Insurance] can respond 

to this request. Without waiving this object[ion], it is denied 

that [Sanders] was ever refused access to inspect the stove 

and/or that [Sanders] ever requested permission to inspect the 

stove. 
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Erie Insurance’s Response to Sanders’ Request for Admissions, 7/21/15, at 

1-2 (unnumbered) (attached to Docket Entry 9 (Erie Insurance’s 

Memorandum of Law In Support of Erie Insurance’s Response to Sanders’ 

Motion for Summary Judgment, filed 7/21/15)). It is clear to this Court that 

nothing in the above-quoted document states what Appellants purport, i.e., 

that the stove was cleaned and put back into use months before it was 

discarded. 

Additionally, to support their contention that they informed Sanders in 

September of 2011 that the stove was cleaned and put back into use (thus, 

enabling her to inspect it), Appellants cite to documents referred to in their 

reproduced record as “Plaintiff’s insured’s incident report.” See Appellants’ 

Brief at 14 (citing Reproduced Record at 159-60); see also Index to 

Reproduced Record (“RR”), 1/22/15, at i. However, those documents state 

only that the stove was new in 2007, and that after the fire, “the stove was 

still working, [and] just needed to be cleaned....” RR at 159. Contrary to 

Appellants’ suggestion in their brief to this Court, nothing in that document 

stated that the stove was actually cleaned and ‘put back into use’ months 

before it was discarded.

In sum, Appellants’ claims on appeal are not supported by the portions 

of the record to which they cite. Thus, they have not convinced us that the 

trial court abused its discretion in finding that “[f]ault for the lack of 
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preservation is squarely on [Appellant] companies, and not on [Sanders], a 

young college student.” TCO at 3-4.3

 Next, we assess the prejudice prong of the Schmid test. Again, 

Appellants concede that Sanders was prejudiced; however, they argue that 

the court erred by finding that the prejudice was significant. Instead, 

Appellants maintain that the degree of prejudice was minimal. See 

Appellants’ Brief at 17. In this vein, Appellants in large part reiterate the 

same arguments presented in their analysis of the fault prong of the 

Schmid test, i.e., that the stove was cleaned and put back into use for 

months before it was destroyed and, therefore, Sanders had an opportunity 

to inspect it. We need not rehash our discussion of why the record does not 

support these arguments. 

Appellants also argue, however, that due to the “the speculative 

nature of [Sanders’] alternative cause, any prejudice suffered by [Sanders] 

is lessened.” Appellants’ Brief at 18. In support, they cite Mount Olivet. 

There, the plaintiff - a church - filed a complaint against the defendant 

heating company, alleging that a heater manufactured by the defendant and 

used by the plaintiff to heat water in a large baptismal pool, had 

____________________________________________

3 We acknowledge, however, that the court made no explicit finding of bad 

faith on the part of Appellants; therefore, we will presume that they did not 

dispose of the stove with the specific intent of hampering Sanders’ ability to 

defend their lawsuit.
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malfunctioned and caused a massive fire in the church. Mount Olivet, 781 

A.2d at 1266. The church kept the allegedly defective heater, but it did not 

preserve the fire scene, which hampered the defendant’s “primary defense 

that the fire started elsewhere in the church and not within the baptistry.” 

Id. at 1268-69. Consequently, the defendant alleged a spoliation of 

evidence claim against the church. In assessing the defendant’s claim under 

the three-pronged Schmid test, we concluded that the defendant had 

“suffered a relatively low degree of prejudice.” Id. at 1272. We stressed 

that at trial, the defendant had been able to present a “vigorous defense to 

the Church’s theory of causation, and presented a renowned fire expert to 

render an opinion based on the Church’s evidence.” Id. at 1272. We also 

noted that the church had conducted investigations of the scene, as had the 

fire marshal, and no alternative fire source had been revealed. Id. 

Two important facts make Mount Olivet distinguishable from the 

present case: (1) the plaintiff in Mount Olivet kept the heater, which it 

claimed caused the fire, and (2) because the defendant had access to the 

heater, it was able to mount a ‘vigorous defense’ challenging that the heater 

had malfunctioned. To the contrary, in this case, Appellants discarded the 

stove, without which Sanders is unable to present any defense that the 

stove malfunctioned and caused the fire. Moreover, while Appellants claim 

that their “investigation did not reveal any alternative causes,” Appellants’ 

Brief at 17, they also concede that the stove was never investigated or 

tested in any manner. Thus, there is no way to rule out Sanders’ claim that 
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the stove malfunctioned, yet there would also be no way for Sanders to 

prove that claim if the case proceeded to trial. For these reasons, the 

present case is distinguishable from Mount Olivet, and we disagree with 

Appellants that Sanders only suffered ‘minimal prejudice.’ Rather, we 

ascertain no abuse of discretion in the court’s determination that Sanders 

suffered ‘significant’ prejudice. 

Thus, we now assess the third prong of the Schmid test - whether 

there was a lesser sanction the court could have imposed that would have 

avoided the unfairness to Sanders caused by Appellants’ disposal of the 

stove. Appellants address this prong of the Schmid test in their third issue 

on appeal. We need not delve into the details of Appellants’ argument in 

support of this issue, as it is wholly premised on their incorrect conclusion 

that the sanction imposed by the court was granting Sanders’ motion for

summary judgment. Contrary to Appellants’ claim, the record demonstrates 

that the sanction imposed by the court for the spoliation of evidence was 

precluding Appellants from presenting evidence regarding the cause of the 

fire. See TCO at 4 (“Preventing [Appellants] from presenting evidence 

concerning the cause of the fire is appropriate where [Appellants] recognized 

the potential for claiming [Sanders] was at fault and failed to preserve 

evidence that may have permitted [her] to challenge [Appellants’] assertions 

against her. We believe this to be the only appropriate remedy under the 

facts of this case.”). On appeal, Appellants offer no argument regarding why 
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that sanction was an abuse of the court’s discretion. Accordingly, they have 

again failed to convince us that the court abused its discretion.

In any event, even if we accepted Appellants’ claim that the court’s 

sanction was granting Sanders’ motion for summary judgment, we would not 

reverse the trial court’s decision. We acknowledge that both our Supreme 

Court and this Court have stated that “[w]here fault and prejudice are not 

severe, dismissal is inappropriate.” Mount Olivet, 781 A.2d at 1273 (citing 

Schroeder, 710 A.2d at 27-28; Pia v. Perrotti, 718 A.2d 321, 325 (Pa. 

Super. 1998); Schmid, 13 F.3d at 81). “Generally, courts should select the 

least onerous sanction commensurate with the spoliator’s fault and the other 

party’s prejudice.” Id. (citation omitted). 

Here, Appellants “note that in cases similar to this one, a spoliation 

[jury] instruction is often granted because it is considered the least onerous 

penalty commensurate with the plaintiff’s degree of fault and the defendant’s 

prejudice.” Appellant’s Brief at 25 (quoting Mount Olivet, 781 A.2d at 1723 

(citations omitted)). Curiously, however, Appellants’ fail to mention that at 

the hearing on Sanders’ motion for summary judgment, their counsel argued 

that a jury instruction would not be appropriate in this case. See N.T. 

Hearing at 5. Thus, they have waived their argument on appeal that a jury 

instruction would have been an appropriate sanction. See Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for 

the first time on appeal.”).
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We also point out that at the hearing, Appellants’ counsel did not 

address, in any fashion, defense counsel’s argument that the appropriate 

sanction would be to “restrict ... [Appellants] from being able to present any 

evidence on causation of the subject fire....” N.T. Hearing at 4. As stated 

supra, Appellants again fail, on appeal to this Court, to explain why that 

particular sanction, which ultimately was imposed by the court, was 

inappropriate. Even more problematic is the fact that, while Appellants 

continuously state throughout their brief that the court should have “applied 

a lesser sanction,” Appellants’ Brief at 25, they at no point specify what that 

sanction should have been. Based on the record before us, and Appellants’ 

misleading and undeveloped argument, they have failed to convince us that 

the trial court abused its discretion by imposing a sanction of precluding 

Appellants from presenting evidence regarding the cause of the fire, which 

then led to the court’s granting Sanders’ motion for summary judgment.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016