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Superior Court of Pennsylvania
October 28, 2008, Argued; January 26, 2009, Filed
No. 1463 MDA 2007
[**260] OPINION BY BENDER, J.:
[*P1] Westhafer Construction, Inc. (Westhafer) appeals the judgment entered in favor of Cove Centre, Inc. (Cove Centre) following imposition of discovery sanctions by the trial court. The court's order declared requests for admission to be admitted, precluded expert testimony, and entered judgment for the amount disputed by the parties in the sum of $ 293,701.76. Westhafer contends that the court's order constitutes an abuse of discretion as the court imposed the sanction without first allowing the defendant to be heard or entering an order compelling discovery. The trial court, upon reconsideration of the order, concluded that it had erred but determined that it was divested of jurisdiction given the pendency of an appeal before this Court. Upon review, we conclude that entry of the order did exceed the court's discretion under the circumstances. Accordingly, we reverse the order, vacate the judgment, and reinstate [***2] the underlying action.
[*P2] This matter arose as a consequence of Westhafer's failure to file timely responses to Expert Witness Interrogatories and Requests for Admission ostensibly served on Westhafer on April 25 and May 31, 2007. Cove Centre issued both discovery requests after withdrawal by Westhafer's former counsel on April 18, 2007, and they remained unanswered through August 2007, when Westhafer retained new counsel. In the interim, on July 20, 2007, [**261] Cove Center filed a Motion for Sanctions against Westhafer for its failure to respond to discovery. Three days later, without the benefit of a Motion to Compel, oral argument, or an evidentiary hearing, the trial court granted Cove Centre's Motion and entered an order deeming the Requests for Admissions admitted, precluding Westhafer from presenting expert testimony, and entering judgment against Westhafer for the entire amount in dispute, some $ 293,701.76. Thereafter, on August 4, 2007, Westhafer retained new counsel and, upon checking the docket, counsel discovered the earlier discovery sanction. Counsel first sought a stay of execution on the judgment and then, on August 14, 2007, filed a Motion for Reconsideration and Memorandum [***3] of Law, followed one week later by a Notice of Appeal to this Court to preserve Westhafer's right to appellate review. Subsequently, the trial court stayed execution of the judgment and scheduled a hearing on Westhafer's Motion for Reconsideration to convene October 4, 2007. Following the hearing, by order of October 26, 2007, the trial court issued a memorandum and order addressing the issues of reconsideration and jurisdiction, which stated "to the extent this Court has the authority to do so, reconsideration of this Court's order of July 23, 2007 is GRANTED." In a subsequent memorandum, filed on February 4, 2008, the court conceded that it could not support the order of July 23, 2007: "[I]n in our judgment, the Order should not have [been] entered at the time it [was] entered and under the circumstances it [was] entered. It should have been the subject of further inquiry . . . ."
[*P3] On this appeal, Westhafer raises the following questions for our review:
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2009 PA Super 10 *; 965 A.2d 259 **; 2009 Pa. Super. LEXIS 19 ***
COVE CENTRE, INC., Appellee v. WESTHAFER CONSTRUCTION, INC., Appellant
Prior History: [***1] Appeal from the Judgment of the Court of Common Pleas of Perry County, Civil Division, No. 2005-247. Before REHKAMP, J.
trial court, discovery, oral argument, sanctions, imposition of sanctions, discovery sanction, failure to comply, convene, evidentiary hearing, discovery request, reconsideration, uncontested
Civil Procedure, Sanctions, Misconduct & Unethical Behavior, General Overview, Discovery & Disclosure, Discovery, Misconduct During Discovery, Parties