J-A28031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TONEY DAVIS, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

VENITA SHOWELL, ADMINISTRATRIX OF 

THE ESTATE OF WEBSTER H. KILSON,

Appellee No. 3806 EDA 2015

Appeal from the Order December 14, 2015

in the Court of Common Pleas of Delaware County

Civil Division at No.: 14-10767

BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 16, 2016

Appellant, Toney Davis, appeals from the trial court’s order granting 

summary judgment in favor of Appellee, Venita Showell, Administratrix of 

the Estate of Webster H. Kilson. Specifically, she challenges the court’s 

order precluding her from presenting evidence at trial as a sanction for her 

discovery violation, which resulted in the later grant of summary judgment 

against her. We affirm the motion for sanctions in part, vacate in part, 

vacate the order granting summary judgment, and remand for the 

imposition of appropriate sanctions.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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We take the following facts from the trial court’s December 14, 2015 

opinion and our independent review of the record.

Appellant initiated this lawsuit against Appellee on December 4, 2014 

for injuries she allegedly suffered on July 9, 2013 on Appellee’s premises. 

On February 5, 2015, Appellee sent Appellant interrogatories and a request 

for production of documents. On February 23, 2015, before receiving the 

discovery responses, Appellee filed an answer to the complaint.

On April 15, 2015, when she did not receive the discovery responses, 

Appellee filed a motion to compel. On April 23, 2015, the trial court granted 

the motion, and ordered Appellant to provide full and complete discovery 

responses within twenty days of the order, or suffer the imposition of 

sanctions upon Appellee’s further application to the court. 

On June 12, 2015, Appellee filed a motion for sanctions due to 

Appellant’s continued failure to comply with the court’s April 23, 2015 order. 

Appellant did not respond to the motion for sanctions, and, on July 14, 2015, 

the trial court granted the motion and precluded Appellant “from presenting 

at trial any witnesses, testimony or evidence relating to information 

requested in [Appellee’s] [i]nterrogatories and [r]equest for [p]roduction of 

[d]ocuments and the allegations appearing in [Appellant’s] [c]omplaint.” 

(Order, 7/14/15). The next day, July 15, 2015, Appellant emailed two 

hundred and fifty pages of discovery responses to Appellee. 
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On July 22, 2015, Appellant filed a motion for reconsideration of the 

court’s July 14, 2015 order, in which she stated that she had not responded 

to the motion to compel due to her counsel’s administrative oversight. (See

[Appellant’s] Motion for Reconsideration, 7/22/15, at unnumbered page 1 ¶ 

5). On July 24, 2015, Appellee responded to the motion for reconsideration 

asserting that the discovery responses received on July 15, 2015 were not 

full and complete, and thus Appellant failed to comply with the April 23, 

2015 court order. (See [Appellee’s] Response to [Appellant’s] Motion for 

Reconsideration, 7/24/15, at unnumbered page 2 ¶ 5). On November 30, 

2015, the trial court denied Appellant’s motion for reconsideration because 

of her failure to provide discovery in this case, and her counsel’s “course of 

conduct” in violating the discovery rules and orders in “numerous other 

cases.” (Order, 11/30/15).

On July 24, 2015, Appellee filed a motion for summary judgment. On 

December 14, 2015, after receiving Appellant’s response, the trial court 

granted Appellee’s motion for summary judgment because, as a result of the 

court having granted the sanctions order, Appellant would be “unable to 

adduce sufficient evidence on all issues essential to her case on which she 
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bears the burden of proof.” (Trial Court Opinion, 12/14/15, at 3). Appellant 

timely appealed.1

Appellant raises three questions for our review.

1. Whether the trial court abused its discretion and otherwise 

committed an error of law when it improperly granted 

[Appellee’s] motion for sanctions and precluded [Appellant] from 

entering evidence at trial?

2. Whether the trial court abused its discretion and otherwise 

committed an error of law when it improperly denied 

[Appellant’s] motion for reconsideration?

3. Whether the trial court abused its discretion and otherwise 

committed an error of law when it improperly granted 

[Appellee’s] motion for summary judgment?

(Appellant’s Brief, at 10) (unnecessary capitalization omitted).

Appellant’s issues challenge the court’s grant of Appellee’s motion for 

sanctions, the preclusion of her evidence at trial, and the resulting grant of 

Appellee’s motion for summary judgment. (See id.).

We will first address the propriety of the trial court’s grant of the 

motion for sanctions. “Discovery sanctions are appropriate where a party 

‘fails to make discovery or to obey an order of court respecting discovery.’ 

Pa.R.Civ.P. 4019(a)(1)(viii). The decision to sanction a party is a matter 

vested in the sound discretion of the trial court.” First Lehigh Bank v. 

____________________________________________

1 The trial court did not order Appellant to file a statement of errors 

complained of on appeal, but it filed an opinion on December 21, 2015. See

Pa.R.A.P. 1925.
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Haviland Grille, Inc., 704 A.2d 135, 139 (Pa. Super. 1997) (case citation 

omitted).

In the case sub judice, our review of the certified record reveals that 

Appellee served Appellant with discovery requests on February 5, 2015, 

approximately two months after Appellant commenced this personal injury 

action. (See [Appellee’s] Motion to Compel [Appellant’s] Answers to 

Interrogatories and Responses to Request for Production of Documents, 

4/15/15, at 1 ¶ 2; id. at Exhibit A). On April 15, 2015, because Appellant 

failed to produce the requested discovery responses, Appellee filed a motion 

to compel production. The court granted the motion on April 23, 2015, and 

directed Appellant to answer Appellee’s discovery requests within twenty 

days or suffer possible sanctions. (See Order, 4/23/15). On June 12, 2015, 

Appellee filed a motion for sanctions for Appellant’s failure to comply with 

the court’s order to produce discovery.2 (See Motion for Sanctions, 

6/12/15, at 2 ¶ 7). 

Based on the foregoing chronology, we conclude that the trial court 

properly found that sanctions were appropriate because Appellant failed to 

____________________________________________

2 Appellant argues that Appellee improperly filed the motion for sanctions 

because she could have chosen an alternative course of action. (See

Appellant’s Brief, at 15-16). However, she fails to provide any legal 

authority in support of this argument. (See id.); Pa.R.A.P. 2119(a)-(b). 

Therefore, it is waived. See Rettger v. UPMC Shadyside, 991 A.2d 915, 

932 (Pa. Super. 2010) (finding failure to cite any legal authority in support 

of analysis resulted in waiver).
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provide discovery responses and to comply with the court’s order respecting 

same. See First Lehigh Bank, supra at 139; Pa.R.C.P. 4019(a)(1)(viii). 

Therefore, Appellant’s first issue lacks merit.

We next turn to Appellant’s second argument, that the trial court erred 

or abused its discretion when it imposed the sanction of precluding her from 

presenting evidence at trial. (See Appellant’s Brief, at 16-21). 

It is well-settled that “the purpose of the discovery rules is to prevent 

surprise and unfairness and to allow a fair trial on the merits.” McGovern 

v. Hosp. Serv. Ass’n. of Northeastern Penn., 785 A.2d 1012, 1015 (Pa. 

Super. 2001) (citation omitted). “As we have cautioned in the past, 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.’” Estate of Ghaner v. Bindi, 779 A.2d 585, 590 (Pa. Super. 2001) 

(citation and some internal quotation marks omitted). Where a discovery

sanction results in the effective dismissal of a case, our standard of review is 

stringent. See Anthony Biddle Contractors, Inc. v. Preet Allied Am. 

St., LP, 28 A.3d 916, 926 (Pa. Super. 2011). “[The Pennsylvania Supreme 

Court] highly disfavor[s] dismissal of an action, whether express or 

constructive, as a sanction for discovery violations absent the most extreme 

of circumstances.” City of Phil. v. Frat. Order of Police Lodge No. 5 

(Breary), 985 A.2d 1259, 1270 (Pa. 2009) (citations omitted). 

As explained by our Supreme Court:
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[P]arties are technically deprived of their procedural due process 

rights under the Fourteenth Amendment when they are not 

afforded full opportunities to present evidence before a court. 

Identical considerations must be given under Article I, Section 1 

of the Pennsylvania Constitution as well. Accordingly, . . . trial 

courts . . . must carefully weigh multiple aspects of a case before 

concluding that dismissal of an action, whether explicitly or 

constructively through the exclusion of evidence, is a proper 

remedy for a discovery violation.

* * *

While our jurisprudence in this area is somewhat limited, 

the Superior Court has had the opportunity to develop and apply 

four similar factors that it concludes trial and appellate courts 

alike should examine before determining the general severity 

and vitality of a discovery sanction: (1) the prejudice, if any, 

endured by the non-offending party and the ability of the 

opposing party to cure any prejudice; (2) the noncomplying 

party’s willfulness or bad faith in failing to provide the requested 

discovery materials; (3) the importance of the excluded evidence 

in light of the failure to provide the discovery; and (4) the 

number of discovery violations by the offending party. In 

applying these factors to appeals where a trial court dismissed 

an action for noncompliance with a discovery order, the Superior 

Court has consistently placed greater emphasis on the first two 

factors: (1) the prejudice to the non-offending party and the 

ability to cure that prejudice; and (2) the willfulness of the 

offending party’s conduct. See, e.g., Stewart v. Rossi, 452 

Pa.Super. 120, 681 A.2d 214, 217 (1996), appeal denied, 689 

A.2d 235 (Pa. 1997) (holding that because “dismissal is the most 

severe sanction, it should be imposed only in extreme 

circumstances, and a trial court is required to balance the 

equities carefully and dismiss only when the violation of the 

discovery rules is willful and the opposing party has been 

prejudiced.”).

Id. at 1270-71 (most citations omitted; some citation formatting provided). 

Based on the foregoing legal principles and the discovery violation 

before us in this case, we are constrained to conclude that the trial court 

abused its discretion when it failed to “select a punishment which ‘fits the 
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crime.’” Estate of Ghaner, supra at 590; see Anthony Biddle 

Contractors, Inc., supra at 926.

First, after examining the record, we cannot conclude that Appellee 

has suffered the severe level of prejudice required for the sanctions imposed 

on Appellant. During the initial few months of litigation, Appellant failed to 

produce responses to the first set of interrogatories and request for 

production of documents when requested and ordered to do so. This was 

Appellant’s first and only discovery violation in this case and it the only basis 

of Appellee’s motion for sanctions. (See Motion for Sanctions, 6/12/15, at 

unnumbered pages 1 ¶ 4, 2 ¶ 7). This early in the litigation, it can hardly be 

said that Appellant’s violation involves the extreme circumstances and 

prejudice to Appellee required for total evidence preclusion. See Frat. 

Order of Police Lodge No. 5, supra at 1270; compare, e.g., Stewart, 

supra at 218-19 (concluding defendant suffered sufficient prejudice to 

justify total preclusion where he was unable to prepare defense, because for 

years, plaintiff failed to respond to discovery requests, produce names of 

fact and expert witnesses, provide any expert reports, or conduct 

depositions).

Also, when the court imposed the discovery sanction, this case had 

only been active for approximately seven months. One day after the court 

entered its order, Appellant produced two hundred and fifty pages of 

documents. Although Appellee complains that the discovery produced was 
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not full and complete, it is not of record, and we cannot, on Appellee’s 

allegation alone, conclude that Appellant failed to cure any potential 

prejudice with her production. Therefore, it appears that, although the 

parties disagree about the quality of the discovery produced, any prejudice 

experienced by Appellee as a result of Appellant’s late discovery production 

either was remedied by the responses, or easily can be cured upon remand. 

See Estate of Ghaner, supra at 590 (concluding imposing sanction of 

evidence preclusion for party’s discovery violation of failing to produce 

pretrial statement pursuant to Pa.R.C.P. 212.2 was abuse of discretion 

where violation curable on remand). 

Second, based on the evidence of record in the instant case, we 

cannot conclude that Appellant’s actions were willful or in bad faith. Counsel 

consistently maintained that the discovery violation was not intentional, but 

instead was the product of administrative oversight. (See [Appellant’s] 

Motion for Reconsideration, 7/22/15, at unnumbered page 1 ¶ 5). Indeed, 

as mentioned above, Appellant had produced two hundred and fifty pages of 

discovery responses one day after the court issued the sanctions order. 

(See id. at unnumbered page 2 ¶ 8; id. at Exhibit D.). While this does not 

excuse Appellant’s earlier inaction, failure to provide the discovery sooner 

does not make it willful or in bad faith, either. See Frat. Order of Police 

Lodge No. 5, supra at 1272 (finding plaintiff did not act in bad faith where 
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timely noncompliance with subpoena resulted from “clerical error” and 

subpoenaed documents were later produced).

Third, the importance of the subject evidence cannot be overstated 

because its preclusion resulted in the ultimate grant of Appellee’s motion for 

summary judgment. (See Trial Ct. Op., at 3).

Finally, as mentioned previously, this was Appellant’s first discovery 

violation in this case.3 We are aware that the court’s order was a sanction 

for the dilatory discovery practices of Appellant’s counsel’s law firm in other 

cases in addition to this one; however, we must conclude that the court 

abused its discretion. Discovery sanctions are meant “to prevent surprise 

and unfairness and to allow a fair trial on the merits[,]” not to punish 

Appellant for the actions of her counsel’s firm in other cases. McGovern, 

supra at 1015 (citation omitted). Hence, particularly where the court’s 

severe sanctions negatively affect Appellant’s constitutional rights to due 

process, see Frat. Order of Police Lodge No. 5, supra at 1270, we must 

conclude that the sanctions imposed by the court do not “fit[] the crime” of a 

____________________________________________

3

In its opinion, the trial court considered that Appellant failed to appear for 

an independent medical evaluation (IME) while a decision on the motion for 

reconsideration of the sanctions order was pending. (See Trial Ct. Op., at 

5). However, only the first discovery violation is before this Court. The fact 

that Appellant arguably has committed a second infraction would be a proper 

consideration for the trial court should Appellee file a motion seeking relief 

for that offense. See Frat. Order of Police Lodge No. 5, supra at 1270 

(directing court to consider “the number of discovery violations by the 

offending party”).
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first discovery violation, which was not committed in bad faith, and does not 

prejudice Appellee’s ability to present a defense at trial. Estate of Ghaner, 

supra at 590. Accordingly, we vacate that portion of the July 14, 2015 

sanctions order precluding Appellant “from presenting at trial any witnesses, 

testimony or other evidence relating to information requested in [Appellee’s] 

interrogatories and request for production of documents and the allegations 

appearing in [her] complaint.” (Order, 7/14/15) (unnecessary capitalization 

omitted).4

In summary, we affirm the court’s sanctions order to the extent that 

the trial court found that Appellee was entitled to sanctions. However, we 

vacate that portion of the order that precludes Appellant from presenting 

any witnesses, testimony, or evidence related to information requested in 

Appellee’s discovery requests or in the allegations of the complaint. We 

remand for the court to impose more appropriate sanctions. Finally, 

because the court’s grant of summary judgment in Appellee’s favor was 

based on the circumstances as they existed after it precluded Appellant from 

____________________________________________

4 This decision in no way condones the law firm of Simon & Simon, P.C.’s 

obstreperous pattern of noncompliance with discovery rules and orders in 

this, and approximately sixty-four other, cases. (See Trial Ct. Op., at 

Attachment). In fact, we sympathize with the frustration of both the trial 

court and Appellee’s counsel. However, there are other, more appropriate, 

vehicles available to the court for sanctioning the egregious behavior of this 

law firm other than precluding Appellant from presenting any evidence in her

case.
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presenting evidence on her behalf, we vacate the order granting summary 

judgment.

Sanctions order affirmed in part and vacated in part. Summary 

judgment order reversed. Case remanded. Panel jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2016