IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kimberly Rivera, Administratrix :

of the Estate of Luis Alberto Lopez, :

Appellant :

:

v. : No. 1616 C.D. 2018

: Argued: November 14, 2019

City of Reading :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: January 3, 2020

Kimberly Rivera, Administratrix of the Estate of Luis Alberto Lopez 

(Estate or Administratrix), appeals from an order of the Court of Common Pleas of 

Berks County (trial court), which granted the motion for sanctions filed by the City 

of Reading (City). For the reasons that follow, we vacate and remand.

On April 19, 2016, the Estate filed suit against the City, the County of 

Berks, and the Commonwealth of Pennsylvania, Department of Transportation,

1

alleging that the defending parties caused the vehicular accident and subsequent 

death of Luis Lopez because of their negligent maintenance of a certain road.

 

1 The parties later stipulated to dismiss the County of Berks and the Commonwealth of 

Pennsylvania, Department of Transportation, from the suit. (See Original Record (O.R.), Item 

Nos. 8-9.) 
2

(Reproduced Record (R.R.) at 1a.) The City sent discovery requests to the Estate,

but for approximately six months the Estate ignored the requests and failed to 

respond to the City’s emails inquiring into the whereabouts of the Estate’s 

responses.

2 The City, therefore, filed a motion to compel the Estate’s responses to 

the City’s discovery requests. (R.R. at 23a.) The trial court, thereafter, issued an 

order scheduling a hearing on the City’s motion to compel. (O.R., Item No. 12.) 

The parties then stipulated to dismiss the motion to compel,

3

and the trial court later

issued an order dismissing the motion to compel, cancelling the hearing on the same, 

and requiring the Estate to provide responses by May 26, 2017. (R.R. at 27a.) 

On June 5, 2017, having not received the Estate’s responses by the 

agreed-upon date—i.e., May 26, 2017—the City filed a motion for sanctions (First 

Motion for Sanctions). (O.R., Item No. 15 at 3-6.) The trial court issued an order 

scheduling a hearing on the First Motion for Sanctions, but it rescheduled the hearing 

upon the Estate’s request. (S.R.R. at 50b-51b.) In doing so, the trial court stated 

that it was “troubled by the apparent failure of [the Estate] to follow [the trial court’s]

Orders.” (R.R. at 28a.) Prior to the scheduled hearing on the First Motion for 

Sanctions, the Estate submitted responses to the discovery requests and, as a result, 

the trial court dismissed the City’s First Motion for Sanctions. (S.R.R. at 54b.) 

Moving ahead with discovery, counsel for the City scheduled the 

deposition of the Administratrix, and counsel for the Estate confirmed the date. (Id.

at 60b; R.R. at 47a.) On the date of deposition—approximately one hour before the 

 

2 The City sent a request for production of documents and written interrogatories to the 

Estate on September 7, 2016. (Supplemental Reproduced Record (S.R.R.) at 12b-32b.) Between 

January 2017 and February 2017, counsel for the City sent to counsel for the Estate numerous 

emails requesting the Estate’s responses or information as to when the Estate would provide 

responses to the City. (Id. at 36b-41b.) 

3

(O.R., Item No. 13.)
3

deposition was scheduled to begin—counsel for the Estate emailed counsel for the 

City, cancelling the deposition because he could not locate the Administratrix. (R.R. 

at 49a.) The City, thereafter, filed a motion to compel deposition of the 

Administratrix, which the trial court granted. (Id. at 29a-31a.) The parties 

rescheduled the deposition of the Administratrix; however, on the day of the 

scheduled deposition, counsel for the Estate again emailed counsel for the City, 

explaining that counsel could not locate the Administratrix and could not attend the 

deposition. (Id. at 81a.) 

Consequently, on October 10, 2018, the City filed a second motion for 

sanctions, seeking dismissal of the Estate’s complaint with prejudice (Second 

Motion for Sanctions). (Id. at 51a.) On October 12, 2018, two days after the City 

filed the Second Motion for Sanctions, the trial court issued an order, granting the 

motion and dismissing the Estate’s complaint with prejudice. (Id. at 89a.) The 

record also reveals that the trial court did not schedule a hearing on the Second 

Motion for Sanctions. On November 13, 2018, the Estate filed a motion for 

reconsideration, which the trial court denied. (S.R.R. at 79b-80b, 83b.) The trial 

court later issued an opinion in accordance with Pennsylvania Rule of Appellate 

Procedure 1925(a). (Appellant’s Br. at A-3 to A-9.) In its opinion, the trial court 

explained the rationale behind its decision to grant the City’s Second Motion for 

Sanctions without a hearing. (Id.) The trial court concluded that, although dismissal 

is a severe sanction, it did not abuse its discretion in dismissing the Estate’s 

complaint due to the severity of the Estate’s noncompliance with discovery requests 

and court orders. (Id. at A-6 to A-9.) The Estate now appeals to this Court. 
4

On appeal,4the Estate argues that the trial court abused its discretion or 

erred as a matter of law by granting the Second Motion for Sanctions without first 

holding an evidentiary hearing or oral argument on the motion. The Estate bases its 

error of law argument on the trial court’s violation of Pennsylvania Rules of Civil 

Procedure (Rules) 208.3 and 4019 and Berks County Rule of Civil Procedure 

(B.R.C.P.) 208.3. The City maintains that the trial court properly granted its Second 

Motion for Sanctions and was not required to hold an evidentiary hearing or oral 

argument on the motion.5 

Generally, “the imposition of sanctions for a party’s failure to comply 

with a trial court’s discovery orders is left to the discretion of the trial court as are 

the sanctions themselves.” Hill v. Kilgallen, 108 A.3d 934, 941 (Pa. Cmwlth. 2015). 

Appellate courts, therefore, refrain from disturbing a trial court’s discovery order 

unless the trial court judge abused its discretion, which requires a “showing of 

manifest unreasonableness, partiality, prejudice, bias, ill will, or such lack of support 

in the law or record.” Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 51 

(Pa. 2011). With respect to discovery proceedings, Rule 4019(a)(1) permits a trial 

court, “on motion,” to “make an appropriate order” if one or several of the following 

conditions are met: 

 

4 This Court reviews a trial court’s order imposing sanctions for failing to comply with a 

procedural rule under the abuse of discretion standard. Cook v. City of Phila. Civil Serv. Comm’n, 

201 A.3d 922, 925 n.6 (Pa. Cmwlth. 2019). “An abuse of discretion is defined as a misapplication 

of the law, a manifestly unreasonable exercise in judgment, or a final result that evidences 

partiality, prejudice, bias, or ill-will.” I.B.P.O.E. of W. Mount Vernon Lodge 151 v. Pa. Liquor 

Control Bd., 969 A.2d 642, 648 (Pa. Cmwlth. 2009). 

5 The City also argues that the Estate’s appeal is untimely and must be quashed. The trial 

court issued the order that is now on appeal on October 12, 2018; however, the exit date for the 

order is October 15, 2018. The Estate’s appeal date of November 14, 2018, therefore, falls within 

the thirty-day period permitted by Pennsylvania Rule of Appellate Procedure 903(a). 

Consequently, the City’s contention on this point has no merit.
5

(i) a party fails to serve answers, sufficient answers or 

objections to written interrogatories under Rule 4005;

(ii) a corporation or other entity fails to make a designation 

under Rule 4004(a)(2) or 4007.1(e);

(iii) a person, including a person designated under 

Rule 4004(a)(2) to be examined, fails to answer, answer 

sufficiently or object to written interrogatories under 

Rule 4004;

(iv) a party or an officer, or managing agent of a party or 

a person designated under Rule 4007.1(e) to be examined, 

after notice under Rule 4007.1, fails to appear before the 

person who is to take the deposition;

(v) a party or deponent, or an officer or managing agent of 

a party or deponent, induces a witness not to appear;

(vi) a party or an officer, or managing agent of a party 

refuses or induces a person to refuse to obey an order of 

court made under subdivision (b) of this rule requiring 

such party or person to be sworn or to answer designated 

questions or an order of court made under Rule 4010;

(vii) a party, in response to a request for production or 

inspection made under Rule 4009, fails to respond that 

inspection will be permitted as requested or fails to permit 

inspection as requested;

(viii) a party or person otherwise fails to make discovery 

or to obey an order of court respecting discovery.

Pa. R.C.P. No. 4019(a)(1) (emphasis added). The Note to Rule 4019(a)(2) provides: 

“Motions for sanctions are governed by the motion rules, Rule 208.1 et seq.” Rule

208.3(a) is of particular relevance to this matter and provides, in part: “[T]he court 

may not enter an order that grants relief to the moving party unless the motion is 

presented as uncontested or the other parties to the proceeding are given an 

opportunity for an argument.” (Emphasis added.) 

B.R.C.P. 208.3(a) and (b) offer further guidance for this matter. 

B.R.C.P. 208.3(a) provides: 
6

(1) Every motion accompanied by a written certification 

pursuant to B.R.C.P. 208.2(d) that it is uncontested shall 

be considered by the Court without a written response or 

argument brief. 

(2) Every other motion shall proceed in accordance with 

B.R.C.P. 208.3(b). 

(3) Every motion shall initially be considered by the Court. 

If the motion is properly pleaded and appears to set forth 

clear grounds for relief, the Court may enter an Order 

granting the requested relief. If an Order is entered 

without a rule to show cause being issued, the Court shall 

hear argument on an application by any party for 

reconsideration of such Order. At its initial consideration 

of the motion, the Court may deny the moving party’s 

request for relief, without argument, when the motion is 

procedurally defective, is untimely filed or fails to set forth 

adequate grounds for relief. 

(Emphasis added). As discussed in the rule above, uncontested motions can be 

considered without a written response but all other motions—i.e., contested 

motions—must be considered in accordance with B.R.C.P. 208.3(b). B.R.C.P.

208.3(b), importantly, requires the trial court to hold argument on motions involving 

undisputed facts prior to disposition of said motions.

6

 

 

6 B.R.C.P. 208.3(b) provides, in relevant part:

(1) Motions which do not involve disputed facts for which a record must be 

developed shall proceed in accordance with B.R.C.P. 211.1 through 211.7, 

inclusive [relating, generally, to scheduling and holding arguments and filing and 

serving briefs] which can be found at the Berks County Web Site 

www.co.berks.pa.us/courts.

(a) In addition to the requirements for filing briefs, the non-moving party 

may file a written answer to the motion simultaneously with the filing of an 

argument brief. 

(2) For motions which do involve disputed facts for which a record must be 

developed, the Court, on its own motion or at the request of any party, may enter 

an order issuing a rule to show cause. The procedure following the issuance of the 

rule to show cause shall be in accordance with [Rule] 206.7.
7

In this matter, the Estate contends that the trial court abused its 

discretion or erred as a matter of law by granting the Second Motion for Sanctions 

without first holding a hearing on the motion and that, by doing so, the trial court 

violated Rules 208.3 and 4019, and B.R.C.P. 208.3. Specifically, the Estate 

contends that the trial court’s decision contravenes the Superior Court’s decision in 

Cove Centre, Inc. v. Westhafer Construction, Inc., 965 A.2d 259, 264 (Pa. Super. 

2009) (Cove Centre), which determined that Rules 208.3 and 4019, when read 

together, require trial courts to hold an evidentiary hearing or oral argument before 

ruling on the motion for sanctions. 

In Cove Centre, the Superior Court determined whether a trial court 

abused its discretion or erred as a matter of law when it granted an aggrieved party’s 

motion for sanctions without first holding an evidentiary hearing or oral argument 

on the motion. After the offending party failed to file timely responses to the 

aggrieved party’s discovery requests, the aggrieved party filed a motion for sanctions 

requesting that the trial court: (1) preclude the offending party from presenting 

certain expert testimony, (2) deem the aggrieved party’s request for admissions 

admitted, and (3) enter judgment for the entire amount in dispute against the 

offending party. The trial court issued an order granting the aggrieved party’s 

motion for sanctions and effectively terminating the underlying litigation. 

The offending party appealed the trial court’s order to the Superior 

Court, which concluded that the trial court exceeded the bounds of its discretion. In

doing so, the Superior Court discussed the applicability of Rules 4019 and 208.3 to 

 

(Emphasis added). 
8

a trial court’s ruling on discovery motions.7 According to the Superior Court, 

although Rule 4019 pertains to motions generally, the Rule contains a Note 

providing that motions for sanctions are governed by the motions rules including 

Rule 208.3, which expressly requires the trial court to provide parties an opportunity 

to argue the merits of a contested motion before ruling on said motion. The Superior 

Court found the Note to Rule 4019 persuasive and, therefore, concluded that Rules 

4019 and 208.3 “effectively mandate oral argument whenever a discovery motion is 

neither uncontested nor facially meritless.” Cove Centre, 965 A.2d at 263. 

Accordingly, the Superior Court determined that the trial court erred in issuing an 

order granting the aggrieved party’s motion for sanctions without first allowing the 

parties the opportunity to argue the merits of the motion. 

We agree with the Superior Court’s analysis of Rules 4019 and 208.3. 

On its own, Rule 4019 seems to refer only to a trial court’s ability to make an 

appropriate order based on an aggrieved party’s motion when an offending party 

engages in certain dilatory behavior during the discovery phase of a matter. The 

Note to Rule 4019 suggests, however, that where the aggrieved party’s motion is a 

 

7 The Superior Court also discussed the factor test developed by its court in Croydon 

Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997), appeal 

denied, 717 A.2d 1028 (Pa. 1998), which our courts have applied where a trial court grants a 

motion for sanctions that has the severe result of effectively or actually dismissing the action. The 

factor test requires a balancing of the equities including, but not limited to, the following factors: 

“(1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad 

faith; (3) prejudice to the [aggrieved] party; (4) the ability to cure the prejudice; and (5) the 

importance of the precluded evidence in light of the failure to comply.” Croydon Plastics Co., 

698 A.2d at 629; see also Cove Centre, 965 A.2d at 261-62; Khamphouseane v. Thornton (Pa. 

Cmwlth., No. 1881 C.D. 2016, filed April 17, 2019), slip op. at 8. We do not apply this factor test 

to the matter before us, because, as discussed below, we dispose of this case on the alleged 

procedural infirmities and not on the merits of the matter. Nothing in this opinion shall be 

construed as addressing the merits of the trial court’s decision in any way. Here, we take no 

position on the trial court’s decision to dismiss the action, only the procedure it followed in doing 

so.
9

motion for sanctions, the trial court must abide by the motions rules, which include 

Rule 208.3. Rule 208.3 and B.R.C.P. 208.3 require that both parties have an 

opportunity to argue the merits of the motion before the trial court rules on said 

motion. Here, the trial court erred by issuing the order granting the City’s Second 

Motion for Sanctions and dismissing the Estate’s complaint without first providing 

both parties the opportunity to argue the merits of the motion.

Based on the above discussion, we vacate the trial court’s order and 

remand this matter to the trial court. On remand, the trial court must schedule an 

evidentiary hearing or oral argument on the Second Motion for Sanctions prior to 

ruling on said motion.

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kimberly Rivera, Administratrix :

of the Estate of Luis Alberto Lopez, :

Appellant :

:

v. : No. 1616 C.D. 2018

:

City of Reading :

O R D E R

AND NOW, this 3

rd day of January, 2020, the order of the Court of 

Common Pleas of Berks County (trial court) is VACATED, and the matter is 

REMANDED to the trial court for disposition in accordance with the foregoing 

opinion. 

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge