The Jacobs Law Group v. Kassem, N. ( 2021 )

J-S40016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE JACOBS LAW GROUP, P.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NABIL KASSEM AND NMK :
RESOURCES, INC :
:
Appellants : No. 497 EDA 2020
Appeal from the Judgment Entered January 23, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 170208142
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: Filed: January 28, 2021
Appellants, Nabil Kassem and NMK Resources, Inc., appeal from the
judgment entered in the Philadelphia County Court of Common Pleas, in favor
of Appellee, The Jacobs Law Group, P.C. We affirm.
The relevant facts and procedural history of this case are as follows. On
March 3, 2017, Appellee filed a complaint against Appellants, who were former
clients of Appellee, seeking unpaid legal fees. On June 19, 2017, Appellants
filed an answer with new matter and counterclaims for (1) professional
negligence/malpractice; (2) breach of contract; (3) breach of fiduciary duty;
(4) unjust enrichment; and (5) violation of the Unfair Trade Practices and
Consumer Protection Law.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40016-20
The trial court summarized some of the subsequent procedural history
as follows:
After [Appellee] granted multiple extensions of time for
[Appellants] to respond to discovery requests, [Appellee]
filed its first motion to compel on June 11, 2018. The court
entered an order by agreement on July 2, 2018 that
[Appellants] shall provide complete responses to
[Appellee]’s discovery demands by July 16, 2018.
[Appellants’] responses provided around that date were
ostensibly complete, and [Appellee] proceeded with the
deposition of [Appellant] Mr. Kassem on September 7,
2018. During that deposition, Mr. Kassem admitted he had
not conducted a complete search of documents and failed to
search his personal e-mail account which he used to
communicate with his former business partner and part
owner of the business which he sought to divide in the
underlying matter. According to [Appellee], the
communications contained in the personal email would likely
reveal agreements, admissions, and other information
pertinent to [Appellee]’s defenses of the counterclaim.
A few weeks later, just prior to the initial October 1, 2018
discovery deadline, [Appellants’] counsel stated for the first
time that [Appellants] had not provided a significant amount
of relevant documents.2 This failure was in direct
contravention of this court’s July 2, 2018 order. On
September 1[4], 2018, [Appellants] sent a hard drive
containing the purportedly remaining production of
documents to counsel for [Appellee]. As with the initial
document production, none of the documents were Bates-
stamped nor identified as being responsive to [Appellee]’s
document requests. Thereafter, [Appellee] filed a motion
for sanctions seeking the dismissal of [Appellants’]
counterclaim as a result of [Appellants’] withholding of
documents and a motion for extraordinary relief to extend
discovery deadlines. On September 27, 2018, [Appellants]
produced over 15,000 more pages of documents, none of
which included the emails that were the subject of
[Appellee]’s sanctions motion.
2 Specifically, counsel for [Appellants]…stated, “My
receptionist advises we have boxes of docs hidden
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away in the front of our ofc-which I do not now know
if they have been requested by nor tendered by you
to us (or us to you): i.e., the file is a mess.”
Oral argument on the sanctions motion was held on October
1, 2018. [Appellants], through counsel, represented that
[they] would produce the outstanding emails and [Appellee]
agreed to withdraw its motion for sanctions. Subsequently,
on October 4, 2018, the court entered an order extending
discovery deadlines. Following threats of motion practice,
[Appellants] produced approximately 1,000 documents on
November 20, 201[8], purportedly including the missing
emails requested by [Appellee]. Upon review, [Appellee]
discovered [Appellants] did not provide any of the
attachments to the emails.
Counsel for [Appellee] has, in good faith, made efforts at its
own expense to obtain the requisite discovery. On January
3, 2019, [Appellee] provided [Appellants] with a thumb
drive containing Bates-stamped version of all documents
[Appellants] provided, and advising [Appellants] what
attachments were missing and a request for a privilege log
of redacted documents. This letter went unanswered.
On January 23, 2019, [Appellants] filed a motion for
protective order requesting that [Appellee] bear the burden
and expense for production of the same documents
[Appellants] represented to the court it would produce.
[Appellee] responded with a cross-motion to compel and for
sanctions. Thereafter, at a court appearance on February
11, 2019, [Appellants] agreed to re-produce the emails with
the corresponding attachments and produce a privilege log
within twenty days. Once again, [Appellants] provided
insufficient responses, producing only 50 of the 500
requested emails. Correspondence between counsel
continued as [Appellants] repeatedly produced a fraction of
what [Appellee] requested. No further emails were
procured until March 1, 2019.
Finally, on March 4, 2019, [Appellee] filed a 47 page motion
for extraordinary relief seeking a ninety day extension—
counsel’s sixth motion for extraordinary relief. On March 6,
2019, denying the motion for extraordinary relief, the court
[directed Appellee] file a motion for sanctions “including but
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not limited to preclusion.”
(Trial Court Opinion, filed May 3, 2019, at 2-4) (internal citation omitted).
Appellee filed a motion for sanctions on April 2, 2019, seeking judgment
of non pros on Appellants’ counterclaims. Appellants filed a cross-motion on
April 23, 2019, to strike the motion for sanctions or, in the alternative, for
recusal and to vacate the March 6, 2019 order. On May 3, 2019, the court
entered judgment of non pros against Appellants and dismissed Appellants’
counterclaims with prejudice. Appellants filed a petition to open judgment on
May 13, 2019, and Appellee filed a summary judgment motion on May 20,
2019. On July 2, 2019, the court denied Appellants’ petition to open
judgment. On July 16, 2019, the court granted Appellee’s motion for
summary judgment and entered judgment in favor of Appellee as to liability.
The court also scheduled a hearing on the issue of damages.
The court conducted the damages hearing on October 7, 2019, and on
December 3, 2019, issued an order awarding damages in favor of Appellee in
the amount of $140,130.54. On December 12, 2019, Appellants timely filed
a post-trial motion, which the court denied on January 2, 2020. On January
23, 2020, the court entered judgment in favor of Appellee. Appellants timely
filed a notice of appeal on January 24, 2020. The court did not order
Appellants to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and none was filed.
Appellants raise the following issues for our review:
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Was the Court of Common Pleas precluded as a matter of
law from sua sponte directing [Appellee’s] motion for
discovery sanctions (and therefore, the order granting
same)? Alternatively, if this … Court determines that the
Court of Common Pleas did not abandon its role of neutrality
and thereby commit reversible error, did the trial court
commit reversible error by agreeing to a joint petition for
extraordinary relief (to extend the discovery deadline) and
thereafter denying same?
Did the Court of Common Pleas commit reversible error by
entering discovery sanctions? In the alternative, if this…
Court determines discovery sanctions are warranted, did the
Court of Common Pleas err by entering the sanction of non
pros?
(Appellants’ Brief at 16).
In their first issue, Appellants assert they filed a motion for a protective
order on January 23, 2019, and in response, Appellee filed a motion to compel
discovery and to request sanctions. Appellants allege the parties ultimately
resolved their “warring” discovery motions, and agreed to file a joint petition
for extraordinary relief to extend discovery deadlines. Appellants maintain
the court even provided “pre-approval” for the proposed petition for
extraordinary relief. Notwithstanding the parties’ agreement, Appellants
contend Appellee unilaterally filed the “joint” petition, which Appellants
describe as “a one-sided detailed diatribe of discovery abuses of [Appellants].”
(Appellants’ Brief at 23). As a result, Appellants claim the court ultimately
denied the petition for extraordinary relief and went a step further by directing
Appellee to file a motion for sanctions.
Appellants insist the court abandoned its role of neutrality and
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impermissibly acted sua sponte by instructing Appellee to file the motion for
sanctions. Alternatively, and at the very least, Appellants suggest the trial
court committed reversible error by pre-approving the petition for
extraordinary relief and later denying it. Appellants conclude this Court should
reverse the trial court’s judgment of non pros, as well as the judgment as to
liability and damages in favor of Appellee. We disagree.
Preliminarily, appellate briefs must conform in all material respects to
the briefing requirements in the Pennsylvania Rules of Appellate Procedure.
Pa.R.A.P. 2101. When an appellant fails to raise or develop his issues on
appeal properly, or where his brief is wholly inadequate to present specific
issues for review, this Court can decline to address the appellant’s claims on
the merits. Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000). See also
Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments
must adhere to rules of appellate procedure and arguments which are not
appropriately developed are waived; arguments not appropriately developed
include those where party has failed to cite authority to support contention);
Estate of Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating
appellant must support each question raised by discussion and analysis of
pertinent authority; absent reasoned discussion of law in appellate brief,
appellant hampers this Court’s review and risks waiver).
Instantly, Appellants cite to only one case in the argument section of
their brief regarding this issue. Appellants fail to provide any other citations
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to relevant legal authority or to the record. Moreover, the sole case on which
Appellants rely, In re C.S., 624 Pa. 212, 84 A.3d 698 (2014) (per curiam
order), is distinguishable from the instant case. In In re C.S., our Supreme
Court determined the trial court erred in sua sponte raising a defense on behalf
of the appellant who, in failing to raise such a challenge herself, waived the
issue for purposes of appeal. See id.Here, however, the trial court did not raise or file any claims on behalf
of Appellee. Rather, due to Appellants’ repeated failures to provide discovery
and comply with court orders, the court essentially informed Appellee that it
could renew its earlier-filed motion for sanctions, which Appellee had
ultimately withdrawn based on Appellants’ representations that they would
turn over the requested e-mails. Because Appellants have failed to provide
us with any relevant legal authority in support of their first issue, it is waived
on appeal. See Lackner, supra.In their second issue, Appellants argue the trial court erred by imposing
discovery sanctions where there was no basis for doing so. Appellants contend
the court had not entered any sanctions previously and, although there were
many discovery deadline extensions in this matter, all discovery motions were
amicably resolved. Further, Appellants emphasize that the factors laid out in
Cove Centre, Inc. v. Westhafer Const., Inc., 965 A.2d 259 (Pa.Super.
2009), such as the defaulting party’s willfulness and prejudice to the opposing
party, were not present in this case to justify sanctions.
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Even if sanctions were warranted, Appellants insist the entry of non pros
was not. Appellants maintain that dismissal is the most extreme sanction and
the trial court “reacted emotionally” in response to “[Appellee]’s petition’s
unilateral provocation” in entering the judgment of non pros. (Appellants’
Brief at 26). Appellants conclude this Court should reverse the trial court’s
judgment of non pros, as well as the judgment in favor of Appellee on liability
and damages. We disagree.
Pennsylvania Rule of Civil Procedure 4019 governs the imposition of
discovery sanctions as follows:
Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate
order if[:]
* * *
(viii) a party or person otherwise fails to make discovery
or to obey an order of court respecting discovery.
* * *
(c) The court, when acting under subdivision (a) of this
rule, may make[:]
* * *
(3) an order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
entering a judgment of non pros or by default against the
disobedient party or party advising the disobedience[.]
* * *
(5) such order with regard to the failure to make
discovery as is just.
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* * *
Pa.R.C.P. 4019(a)(1)(viii), (c)(3), (c)(5).
“[T]he purpose of discovery sanctions is to secure compliance with our
discovery rules and court orders in order to move the case forward and protect
the substantive rights of the parties, while holding those who violate such
rules and orders accountable.” Rohm & Haas Co. v. Lin, 992 A.2d 132, 147
(Pa.Super. 2010), cert. denied, 565 U.S. 1093, 132 S.Ct. 852, 181 L.Ed.2d
550 (2011). Defiance of discovery orders “is a direct affront to the authority
of the trial court and to the integrity of the judicial system and rule of law.”
Id. at 143.
Generally, imposition of sanctions for a party’s failure to
comply with discovery is subject to the discretion of the trial
court as is the severity of the sanctions imposed.
Nevertheless, the court’s discretion is not unfettered:
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
where the violation of the discovery rules is willful and the
opposing party has been prejudiced.
Id. at 142 (internal citations, quotation marks, and emphasis omitted).
“[T]he exercise of judicial discretion in formulating an appropriate sanction
[o]rder requires the court to select a punishment which ‘fits the crime.’”
Weist v. Atlantic Richfield Co., 543 A.2d 142, 144 (Pa.Super. 1988).
Appellate review of a discovery sanction that results in dismissal is stringent,
and our standard of review of such a sanction is strict scrutiny. Rohm &
Haas, Co., supra at 141-42; Cove Centre, Inc., supra at 261.
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“[W]here a discovery sanction either terminates the action directly or
would result in its termination by operation of law, the [trial] court must
consider multiple factors balanced against the necessity of the sanction.”
Anthony Biddle Contrs., Inc. v. Preet Allied Am. St., LP, 28 A.3d 916,
926 (Pa.Super. 2011).
The following factors are applied to determine whether
dismissal is appropriate as a discovery sanction:
(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.
Scampone v. Grane Healthcare Company, 169 A.3d 600, 628 (Pa.Super.
2017), appeal denied, 647 Pa. 64, 188 A.3d 388 (2018). See also Cove
Centre, Inc., supra at 262. This Court has consistently placed greater
emphasis on (i) the prejudice to the non-offending party and the ability to
cure that prejudice, and (ii) the willfulness of the offending party’s conduct.
City of Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary),
604 Pa. 267, 286, 985 A.2d 1259, 1271 (2009). Importantly, “each factor
represents a necessary consideration, not a necessary prerequisite.” Rohm
& Haas Co., supra at 142.
Instantly, in its May 3, 2019 opinion explaining its decision to enter the
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judgment of non pros against Appellants, the trial court reasoned as follows:
Here, [Appellants’] repeated failure to expeditiously comply
with discovery obligations warrants a judgment of non pros
with regard to the counterclaims against [Appellee]. On July
2, 2018, this court ordered [Appellants] to produce
complete discovery responses by July 16, 2018. Over the
next eight months, [Appellants] repeatedly violated the
court’s order by either failing to provide responses or
providing incomplete responses, most often produced only
after [Appellee]’s threats of motion practice and further
court involvement.
In analyzing the [relevant] factors determining the
appropriateness of sanction in the form of dismissal…, it is
clear judgment of non pros is fitting. The nature and
severity of [Appellants’] discovery violations has been
significant and continuous. In sum, [Appellants] failed to
produce requested documents, produced a fraction of what
was requested only after threats of court involvement, and
displayed general obstinance to [Appellee]’s good faith
efforts to receive the missing discovery.
Regarding the defaulting party’s willfulness or bad faith,
irrespective of whether [Appellants’] failures to produce
during the discovery period is simply a lack of due diligence
or rather a pernicious effort to “run the clock” on the
discovery period to prevent [Appellee] from adequate
preparation, the result is the same: a confusing, wasteful,
and needlessly expensive process. Moreover, [Appellants
have] not provided any compelling reason for these
repeated delays that would warrant a lesser sanction. Both
the court and [Appellee] have given [Appellants] many
chances to rectify its discovery abuses and provide
appropriate answers to discovery requests: the court
extended the deadlines on multiple occasions and, out of
professional courtesy, [Appellee] agreed to additional
extensions.
…[I]t is clear that [Appellants’] failures have prejudiced
[Appellee] in defending the counterclaim. [Appellee] has
proceeded with preparing its defense without sufficient
discovery responses, emails, documents, and important
depositions such as Neal Jacobs, and at this point, expert
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witnesses. As the discovery period closed April 1, 2019, and
given the pattern of behavior from [Appellants] in
withholding necessary responses, the prejudice suffered by
[Appellee] is unlikely to be cured.
In light of the fact that this court has entertained significant
discovery motion practice, the lack of explanation from
[Appellants] for the discovery failures, and the prejudice to
[Appellee] that likely results from [Appellants’] failures, the
court is not inclined to impose a lesser sanction. The
discovery [Appellants have] produced to [Appellee] has
been piecemeal, disorganized, and insufficient.
[Appellants’] conduct has turned this litigation process into
a pathetic spectacle where court orders have no force,
agreements no meaning, and the costs of litigation are
unimportant. Such unprofessional conduct undermines the
judicial process and cannot simply be cured by another
motion for extraordinary relief or extension of deadlines. It
may, however, be deterred by the knowledge that such
unprofessional conduct bears consequences which are
harsh, but justified. It is the duty of this court and all courts
to ensure the discovery process is respected, both for the
sake of clients and the judicial system.
(Trial Court Opinion at 6-8). We agree with the trial court’s analysis. The
facts of this case demonstrate that Appellants exceeded the limits of discovery
tolerance, and the record supports the sanctions imposed. See Rohm &
Haas, Co., supra. Accordingly, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/21
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