In a ruling that could prove instructive as to where courts should draw the line when it comes to discovery violations, the Pennsylvania Superior Court upheld the dismissal of a motor vehicle accident case as a sanction after the plaintiff repeatedly failed to appear for a deposition and sent incomplete and untimely responses to discovery requests.

In a Feb. 18 memorandum decision in Coleman v. Mahmoud, a three-judge panel of the appeals court ruled unanimously to uphold a Montgomery County trial judge's orders granting defendant Hany Mahmoud's motions for sanctions and tossing out the lawsuit.

Judge Jacqueline Shogan, writing for the majority, rejected plaintiff Sharon Coleman's attempt to liken her case to the 2001 Superior Court case Estate of Ghaner v. Bibi, in which the court found that dismissal was too harsh a sanction for a plaintiff who failed to file a pretrial statement in accordance with Pa.R.C.P. 212.2(c).

"This case is distinguishable from Ghaner," according to Shogan, because Coleman "did not violate one rule of procedure. Rather, she engaged in a pattern of dilatory conduct designed to circumvent the discovery process, particularly in regard to her repeated failure to appear for a deposition. Appellant was also not cooperative in producing comprehensive and timely information about both her injuries resulting from the accident involving appellee or those incurred in an earlier accident. Additionally, appellant did not file a motion for extraordinary relief after the sanctions were entered to attempt to cure the prejudice. These discovery violations were severe enough to warrant dismissal."

Shogan was joined by Judge Mary Jane Bowes and Senior Judge Eugene Strassburger III, though Strassburger did pen a concurring opinion to note that "the sanction of a preclusion order that amounts to a dismissal is particularly harsh, and, had I been the trial judge, I might have chosen a lesser sanction."

"Yet, given the abuse of discretion standard of review, I cannot find that the trial court erred," Strassburger said.

Coleman had alleged in her lawsuit that she was injured by Mahmoud in an automobile accident. According to Montgomery County Court of Common Pleas Judge Emanuel Bertin's opinion, Coleman canceled her deposition on short notice twice, rescheduled it for three days shy of the discovery deadline and then canceled for a third time the day before it was scheduled to occur.

Bertin also said Coleman failed to comply with discovery requests requiring her to fully list her medical care providers and to provide details about prior injuries she sustained in another automobile accident, as well as about a separate lawsuit that stemmed from that accident. She also failed to respond to Mahmoud's motion for sanctions.

"Appellant's assertion of her purported willingness to engage in the discovery process is contradicted by her cavalier approach to appellee's discovery requests," Shogan said. "Appellant twice cancelled her deposition on short notice, citing counsel's unavailability. Additionally, although Pa.R.C.P. 208.3 does not require that a response be filed to a motion for sanctions, given the severity of the preclusive relief requested by appellee, we agree with Judge Bertin that appellant's non-response to the motion demonstrated 'the lack of seriousness [appellant] is taking toward her own case and her disregard of requirements of important, timely court filings and deadlines.'

"Finally, and significantly," Shogan continued, "if appellant believed that her non-compliance with appellee's discovery requests was excused by legitimate reasons, the remedy to extend the discovery deadline, as dictated by Montgomery County Local Rule 203(e) and the [case management order], was to file a motion for extraordinary relief. Appellant did not seek such relief."

Counsel for Coleman, Marc Simon of Simon & Simon in Philadelphia, said in an email, "We were disappointed by the ruling of the trial court and appeals court. We are reviewing our options with Ms. Coleman regarding her rights in the Supreme Court."

Counsel for Mahmoud, John Idell of Kane, Pugh, Knoell, Troy & Kramer in Norristown, could not be reached for comment.