IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anong Khamphouseane and :

Susan Khamphouseane, :

Appellants :

:

v. : No. 1881 C.D. 2016

: Argued: March 14, 2019

Schnika Thornton, Southeastern :

Pennsylvania Transportation :

Authority, Amica Mutual Insurance :

Company and MV Transportation, Inc. :

BEFORE: HONORABLE ROBERT SIMPSON, Judge 

HONORABLE ANNE E. COVEY, Judge (P.)

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: April 17, 2019

Before us is the appeal filed by Anong and Susan Khamphouseane 

(Plaintiffs) from an order of the Philadelphia County Court of Common Pleas (trial 

court), denying their petition for relief from an entry of judgment for non pros. The 

trial court dismissed their personal injury complaint as a discovery sanction under 

Pa. R.C.P. No. 4019(c)(3) when Plaintiffs violated an order compelling their 

completion of authorizations for medical records and driving histories. Following a 

sanctions hearing, Plaintiffs provided the authorizations. Dismissal of a cause of 

action is a harsh discovery sanction requiring assessment of multiple factors, 

including any prejudice the moving party suffered from the delay. Because the trial 

court did not analyze the requisite factors here, we vacate the trial court’s order, and 

we remand to the trial court to reconsider entry of the non pros after performing the 

requisite analysis.
2

Plaintiffs filed a personal injury complaint arising from a 2013 collision 

with a Southeastern Pennsylvania Transportation Authority (SEPTA) bus. In 

October 2014, Plaintiffs sued SEPTA, its driver, Schnika Thornton, the bus owner, 

MV Transportation, Inc. (Bus Defendants) and their vehicle insurer, Amica Mutual 

Insurance Co. (Insurer) (collectively, Defendants). Bus Defendants are represented 

by the same counsel. SEPTA and MV Transportation filed their answers with new 

matter in February 2015, whereas the bus driver filed an answer in November 2015. 

Relevant here, in February 2015, Bus Defendants served Plaintiffs with 

discovery requests for medical records, which included medical record release forms. 

In October 2015, Bus Defendants issued subpoenas to the Pennsylvania Department 

of Transportation (PennDOT) to obtain Plaintiffs’ driving histories. PennDOT 

responded that it would not disclose the records without Plaintiffs’ execution of its 

DL-503 forms authorizing their release. In December 2015, Bus Defendants sent 

the forms to Plaintiffs for their execution, presumably receiving no response.1 Then, 

by letter dated February 17, 2016, Bus Defendants asked Plaintiffs’ counsel to 

provide executed medical record authorizations by the following week. 

Two weeks later, Bus Defendants filed a motion to compel Plaintiffs’

execution of the medical and driving record authorizations, which was unopposed. 

The trial court granted the motion on March 22, 2016, directing compliance within 

10 days (Discovery Order). Plaintiffs did not comply. 

 

1 According to the docket, also in December 2015, Bus Defendants filed a separate motion 

to compel Plaintiffs’ depositions. During argument before this Court, counsel confirmed that 

Plaintiffs were deposed, indicating their participation in the litigation during or after December 

2015.
3

Over the same timeframe, the parties stipulated to transfer the matter to 

arbitration. On March 30, 2016, the court scheduled arbitration for July 14, 2016.

Following Plaintiffs’ noncompliance with the Discovery Order, defense 

counsel sent a letter to Plaintiffs’ counsel in April 2016, to which he received no 

response. Shortly thereafter, in May 2016, Bus Defendants filed a motion for 

sanctions, seeking a judgment of non pros under Pa. R.C.P. No. 4019(c)(3). 

On May 19, 2016, the trial court held a hearing on sanctions with only 

counsel in attendance. During the hearing, Plaintiffs’ counsel represented difficulty 

in communicating with his clients because they speak Laotian, necessitating an 

interpreter. He reported Plaintiffs recently moved to Texas and changed their phone 

number without informing him. From the hearing transcript, it seems counsel had 

no contact with Plaintiffs in 2016. See Colloquy, 5/19/16, at 4. He claimed Plaintiffs 

only told him they moved to Texas days before the hearing.

The trial court granted the motion for sanctions, awarding $1,500 for 

expenses and attorney fees (Sanctions Order). Significantly, the trial court further 

ordered: “[Plaintiffs’] Complaint is STRICKEN and JUDGMENT FOR NON PROS

IS HEREBY ENTERED against [Plaintiffs] pursuant to Pa. R.C.P. No. 4019(c)(3).” 

Reproduced Record (R.R.) at 150a (Tr. Ct., Order, 5/19/16). 

Six days after receiving the Sanctions Order, Plaintiffs filed a petition 

for relief from the entry of judgment (Petition), attesting they provided executed 

authorizations to Bus Defendants by email that day, with originals to follow. R.R. 
4

at 196a. Plaintiffs also argued no parties were prejudiced by the late authorizations, 

noting most discovery was completed. In June 2016, Bus Defendants filed a reply.

On July 7, 2016, the trial court issued an order denying the Petition. 

Plaintiffs immediately appealed that order to the Superior Court, which subsequently 

transferred the appeal to this Court.

As directed by the trial court, Plaintiffs filed their Rule 1925(b) 

Statement pursuant to Pa. R.A.P. 1925(b). Therein, Plaintiffs did not cite either Rule 

3051 (relating to petitions to open judgment) or Rule 4019(c)(3) (relating to entry of 

non pros as a discovery sanction) in the Pennsylvania Rules of Civil Procedure. 

Rather, they asserted Rule 237.3 (relating to relief from judgment of non pros) 

applied, which required review of the merit of their action prior to dismissal.2

The trial court’s Rule 1925(a) opinion explained the rules Plaintiffs

cited apply only when non pros is entered pursuant to Rule 237.1,3 not when 

judgment is entered as a discovery sanction under Rule 4019(c)(3). Noting the 

Sanctions Order was not appealed, the trial court did not analyze the grounds for 

entering the non pros as a discovery sanction. Tr. Ct., Slip Op., 10/21/16, at 5 n.5

(“Plaintiffs do not challenge this Court’s order entering Judgment of Non Pros 

 

2

 Citing their compliance with Rule 237.3, Plaintiffs argue the trial court erred in not 

opening judgment. However, Plaintiffs also assert there was no basis for entering judgment 

predicated on the absence of the authorizations when they submitted the executed authorizations

to Bus Defendants within a week of the Sanctions Order. 

3 Pa. R.C.P. No. 237.1 specifies: “(b) [t]his rule does not apply to a judgment entered (1) 

by an order of court.” Rather, the rule applies to entry of judgment following a praecipe by a party.
5

pursuant to Pa. R.C.P. No. 4019(c). Therefore, this Court’s exercise of Pa. R.C.P. 

No. 4019(c) is not in dispute....”). 

On appeal,4 Plaintiffs argue dismissal was too harsh a sanction because 

any prejudice was cured, and there was no evidence of bad faith. Plaintiffs maintain 

the merit of their cause of action should have been evaluated before dismissal. They 

characterize their disregard of the trial court’s order to compel as a “minor procedural 

violation.” Appellants’ Br. at 20. Further, Plaintiffs assert the trial court erred in that 

it did not assess each of the factors that must be considered when deciding the 

appropriateness of a sanction under Rule 4019(c).

Bus Defendants counter that Plaintiffs waived any challenge to the 

dismissal of their action because they appealed from the order denying their Petition, 

not the Sanctions Order that entered the judgment of non pros. They also contend 

the trial court did not abuse its discretion in entering the non pros because Plaintiffs 

did not attempt to provide the authorizations until the sanctions hearing, indicating 

they will not participate willingly in discovery should the action proceed. 

Pa. R.C.P. No. 3051 governs petitions for relief from judgments. Rule 

3051 requires a reasonable explanation or excuse for the conduct that led to the 

 

4

“A trial court’s decision to deny a petition to open or strike a judgment of non pros is 

scrutinized on the abuse of discretion standard of appellate review.” Madrid v. Alpine Mountain 

Corp., 24 A.3d 380, 382 (Pa. Super. 2011). An abuse of discretion occurs when “the law is 

overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of 

partiality, bias or ill will.” Tullytown Borough v. Armstrong, 129 A.3d 619, 622 (Pa. Cmwlth. 

2015), appeal denied, 145 A.3d 729 (Pa. 2016). Appellate review of a trial court’s order entering 

a discovery sanction that terminated the underlying litigation is “stringent.” Cove Centre, Inc. v. 

Westhafer Constr., Inc., 965 A.2d 259, 261 (Pa. Super. 2009). 
6

judgment of non pros. “Where a party fails to provide a reasonable excuse for the 

delay in prosecution of the underlying claim, a petition to open is properly denied.”

See Madrid v. Alpine Mountain Corp., 24 A.3d 380, 384 (Pa. Super. 2011) (citing 

Sahutsky v. Mychak, Geckle & Welker, P.C., 900 A.2d 866 (Pa. Super. 2006) 

(judgment of non pros properly entered where no reasonable excuse or explanation 

provided for delay); Pa. R.C.P. No. 3051(b)(2)).

Here, the conduct at issue is Plaintiffs’ failure to execute authorizations 

for medical records and driving histories until Bus Defendants sought sanctions. The 

entry of non pros resulted from the trial court’s Sanctions Order. Ultimately, 

Plaintiffs challenge the trial court’s imposition of a discovery sanction dismissing 

their complaint without regard to its merit or the lack of incurable prejudice. 

Therefore, the standards governing an entry of judgment for non pros as a discovery 

sanction apply. Smith v. Phila. Gas Works, 740 A.2d 1200 (Pa. Cmwlth. 1999). 

First, we consider Bus Defendants’ contention that, based on the order 

appealed from, Plaintiffs have not properly sought rescission of the dismissal of their 

case, emphasizing the Sanctions Order entered the non pros. They also maintain 

Plaintiffs waived any challenge to the severity of the sanction because they did not 

cite Rule 4019 in their Petition. 

That Plaintiffs did not appeal the Sanctions Order did not result in 

waiver of their challenge to the severity of the sanction, i.e., dismissal of their claims. 

The order appealed from explained the non pros was a result of the Sanctions Order. 
7

See Tr. Ct. Order, 7/7/16, n.1. The entry of non pros was predicated on the Sanctions 

Order, so this Court may assess the propriety of the sanction. Smith.

Moreover, in general, “discovery orders are interlocutory and not 

appealable until there is a final judgment in the underlying action.” Id. at 1203. In 

Sahutsky, the Superior Court held that the order granting non pros as a discovery 

sanction was not immediately appealable. Id. As a result, the party aggrieved had 

to file a petition to open the non pros under Rule 3051, regardless of the type of 

judgment. That is precisely what Plaintiffs did here. 

In their Petition, Plaintiffs cited multiple attempts their counsel made 

to obtain executed authorizations, to no avail. Plaintiffs’ counsel noted the difficulty 

in obtaining authorizations when Plaintiffs moved. Plaintiffs also sought immediate 

relief from the non pros within a week of its issuance, and cured the sanctioned 

conduct during that same week by providing the authorizations to Bus Defendants.

Further, we discern no waiver despite Plaintiffs’ citation to inapplicable 

rules. See, e.g., Griffin v. Rent-A-Center, Inc., 843 A.2d 393 (Pa. Super. 2004) 

(citation of incorrect statute not proper grounds for waiver as party preserved 

arguments). Plaintiffs’ Rule 1925(b) Statement relies erroneously on the criteria for 

opening a judgment under Rule 237.3 when the rule does not apply to the entry of 

non pros as a discovery sanction. Nonetheless, in their Rule 1925(b) Statement, 

Plaintiffs assigned error to the trial court’s failure to consider the merit of their 

claims before dismissal and to its disregard for their submission of the 

authorizations. Thus, Plaintiffs preserved the issues that the sanctioned conduct was 
8

curable and corrected without prejudice to any party. Accordingly, we review the 

trial court’s denial of Plaintiffs’ Petition for relief from its entry of judgment of non 

pros.

Rule 4019(a)(l) allows a trial court to “make an appropriate order” if a 

party “fails to make discovery or to obey an order of court respecting discovery.”

Pa. R.C.P. No. 4019(a)(1). Rule 4019(c)(3) expressly authorizes trial courts to 

“ente[r] a judgment of non pros or by default against the disobedient party ....” Pa. 

R.C.P. No. 4019(c)(3).

Although a decision sanctioning a party for a discovery violation and 

the severity of the sanction are vested in a trial court’s discretion, a discovery 

sanction that terminates the underlying litigation is subject to “strict scrutiny.” Cove 

Centre, Inc. v. Westhafer Constr., Inc., 965 A.2d 259, 261 (Pa. Super. 2009).

When a discovery sanction has the effect of terminating the action, a 

“court must consider multiple factors balanced together with the necessity of the 

sanction.” Id. at 262. The factors a court must consider when evaluating such a 

sanction under Rule 4019 are: (1) the nature and severity of the discovery violation;

(2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party;

(4) the ability to cure the prejudice; and (5) the importance of the precluded evidence 

in light of the failure to comply. Judge Tech. Servs., Inc. v. Clancy, 813 A.2d 879 

(Pa. Super. 2002). “[E]ach factor represents a necessary consideration and not a 

necessary prerequisite.” Croydon Plastics Co., Inc. v. Lower Bucks Cooling & 

Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (emphasis added).
9

We emphasize that because dismissal is the most severe sanction, it is 

reserved for “extreme circumstances.” Cove Centre, 965 A.2d at 261 (quoting 

Stewart v. Rossi, 681 A.2d 214, 217 (Pa. Super. 1996)). Thus, “a trial court is 

required to balance the equities carefully and dismiss only where the violation of the 

discovery rules is willful and the opposing party has been prejudiced.” Id.

(emphasis added). Types of prejudice that may warrant a sanction based on a delay 

in responding to discovery requests are the fading of witness memories, 

disappearance of witnesses, or the loss or destruction of relevant documents. See

Tri-State Asphalt Corp. v. Dep’t of Transp., 875 A.2d 1199 (Pa. Cmwlth. 2005).

Critically, Bus Defendants did not identify any prejudice related to the 

delayed execution of the authorizations.5 In their brief, they cite the expenditure of 

thousands of dollars in the discovery dispute, but no other loss related to the delayed 

authorizations. Appellees’ Br. at 12. Such purported losses are properly remedied by 

other means, such as monetary sanctions. Indeed, the Sanctions Order compensated 

Bus Defendants for $1,500 in fees and costs related to the discovery dispute. 

Further, the circumstances here are not comparable to those in other 

cases entering judgment for discovery violations. See Rohm & Haas Co. v. Lin, 992 

A.2d 132 (Pa. Super. 2010) (no abuse of discretion in entering default judgment in 

favor of employer as discovery sanction); Croydon Plastics (sanction precluding 

plaintiff’s expert testimony treated as effective dismissal affirmed). These cases 

involved repeated discovery violations over a year or several years in duration.

 

5 Despite repeated questions from the Court during oral argument, defense counsel was 

unable to articulate any prejudice related to the delayed production of the authorizations. Further, 

Bus Defendants confirmed they did not undertake any investigation since receiving the 

authorizations.
10

In Croydon Plastics, the sanctioned party engaged in repeated 

discovery violations. The lower court directed the plaintiff to file an expert report 

within 60 days, and stated in its order that the failure to timely file would result in 

preclusion. Nevertheless, the plaintiff did not comply for over one year, offering 

implausible explanations for its delay.

Rohm & Haas involved claims of a former research scientist 

employee’s misappropriation of trade secrets, breach of contract and breach of 

fiduciary duty. The employee’s excuse for not responding to certain discovery was 

that it was irrelevant. The lower court found this disobedience of discovery orders 

was willful and repeated as to a number of discovery orders over a five-year period. 

Further, the court noted prejudice to the opposing party in pursuing its claims and 

protecting against future misappropriations. Thus, the prejudice included the potential 

loss of trade secrets. Under stringent review, the Superior Court agreed these serious,

incurable consequences merited a discovery sanction of default judgment in 

employer’s favor.

Under the current circumstances, where there is no clear prejudice, 

dismissal of the action appears disproportionate to the discovery violation. See

Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d 916 (Pa. 

Super. 2011) (holding trial court abused its discretion by denying subcontractor’s 

motion to extend discovery deadline because no prejudice alleged, and substantial 

compliance with case management order). However, this Court is unable to evaluate 

whether the trial court abused its discretion in imposing the judgment of non pros as 
11

a discovery sanction because the trial court did not address the prejudice or other 

requisite factors in its opinion. 

On this record, it is unclear how terminating the underlying litigation 

was an appropriate sanction for months-delayed authorizations, particularly when 

Plaintiffs participated in depositions. Because it is not evident that the trial court 

considered the five factors, and its opinion does not explain its balance of the equities 

to warrant dismissal, we remand to the trial court to consider each factor and explain 

its rationale sufficiently to enable appellate review.6 

Additionally, it is unclear whether the trial court considered the grounds 

for relief from judgment under Rule 3051. In evaluating relief from non pros under 

Rule 3051, a court shall consider whether a petitioner established three factors: (1) 

the petition was timely filed; (2) reasonable explanation or excuse for inactivity or 

delay; and (3) a meritorious cause of action. Sahutsky. Instead of analyzing each 

 

6 As to the first factor, the severity of the discovery violation, the delay in providing the 

authorizations here was between December 2015 and May 2016 as to the driving histories, and 

February 2016 and May 2016 as to the medical record authorizations. This delay is one of months, 

not years as in cases where appellate courts upheld discovery sanctions that terminated the 

litigation. See Rohm & Haas Co. v. Lin, 992 A.2d 132 (Pa. Super. 2010); Croydon Plastics Co., 

Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa. Super. 1997). Also, Plaintiffs did not

contest the motion to compel, and violated only the Discovery Order which required compliance 

within 10 days.

As to the second factor, willfulness or bad faith, it is unclear whether the trial court found 

bad faith on the part of Plaintiffs, as opposed to their counsel. Indeed, the trial court suspected 

Plaintiffs’ counsel failed to stay in contact with them in violation of Rule 1.4 of the Rules of 

Professional Conduct, Pa. R.P.C. 1.4. See Tr. Ct., Slip Op., at 6 n.6. 

As to the third and fourth factors, the prejudice and ability to cure it, the trial court did not 

identify any prejudice caused by the months-delayed authorizations. To the extent the prejudice was 

the inability of Bus Defendants to obtain the records without the authorizations, providing the 

authorizations cured that prejudice.

The trial court also did not address the fifth factor, the importance of the evidence at issue. 
12

factor, the trial court concluded Plaintiffs “waived any argument under Pa. R.C.P. 

[No.] 3051.” Tr. Ct., Slip Op., at 7. 

Here, the excuse for the conduct that led to the judgment of non pros

was Plaintiffs’ counsel’s difficulty in communicating with Plaintiffs based on a 

language barrier, and his failure to contact them during the discovery dispute. 

Counsel advised he did not obtain their authorizations prior to the sanctions hearing 

because Plaintiffs moved to Texas without informing him. See Colloquy, 5/19/16, 

at 4. It is evident that the trial court did not credit this explanation or deem it 

reasonable. See Tr. Ct., Slip Op., at 7.

Although the trial court rejected Plaintiffs’ counsel’s explanations for 

the delay, the trial court did not consider the merit of Plaintiffs’ cause of action, 

which is assigned as error in every issue Plaintiffs identified on appeal. In neglecting 

to analyze the factors for relief from judgment under Rule 3051, the trial court erred. 

On remand, the trial court shall consider the merit of Plaintiffs’ cause of action as 

part of its review of the Petition.

Because the trial court did not analyze the requisite factors prior to entry 

of judgment of non pros, and prejudice is not evident on this record, we cannot 

discern whether the trial court abused its discretion. Therefore, we vacate the trial 

court’s order and remand to the trial court to consider the five factors for imposing 
13

an entry of judgment of non pros under Rule 4019(c)(3), and, if necessary, to analyze

the factors for relief from such an entry of judgment under Rule 3051.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anong Khamphouseane and :

Susan Khamphouseane, :

Appellants :

:

v. : No. 1881 C.D. 2016

:

Schnika Thornton, Southeastern :

Pennsylvania Transportation :

Authority, Amica Mutual Insurance :

Company and MV Transportation, Inc. :

O R D E R

AND NOW, this 17th day of April, 2019, the order of the Philadelphia 

County Court of Common Pleas is VACATED, and the matter is REMANDED for 

analysis of the factors discussed in the accompanying opinion, including the 

articulation of the prejudice Appellees experienced as a result of the discovery 

violation.

Jurisdiction is relinquished.

 

ROBERT SIMPSON, Judge