Kinder, S. v. Heritage Lower Salford
Kinder, S. v. Heritage Lower Salford No. 3813 EDA 2015
| Pa. Super. Ct. | May 30, 2017Background
- Stephen and Debra Kinder sued their homebuilder and multiple subcontractors alleging defective construction causing water intrusion through stucco, breach of contract/warranty, and consumer protection claims.
- Heritage (builder) subcontracted actual construction; multiple subcontractors and their subcontractors were joined as defendants.
- Plaintiffs permitted experts to perform a visual inspection in 2011, but in 2012 the Kinders hired remediation contractors and removed the alleged defective areas without notifying defense counsel or allowing defense experts to inspect during remediation.
- The trial court found plaintiffs destroyed (spoliated) critical evidence and issued evidentiary sanctions precluding plaintiffs from offering evidence about the water intrusion’s source.
- Because plaintiffs could no longer prove which defendant caused the leaks, the court granted summary judgment for defendants; the Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by imposing severe spoliation sanction and entering summary judgment | Sanction was excessive; defendants already had extensive photos/documents; lesser sanctions (jury instruction or reliance on photos) would suffice | Plaintiffs destroyed core physical evidence without notice during active litigation, severely prejudicing defendants’ ability to identify the source and shift liability among subcontractors | No abuse of discretion; sanction and summary judgment affirmed |
| Whether plaintiffs had duty to preserve evidence | Duty not indefinite given time lapse from construction; defendants had other information | Plaintiffs had litigation pending and foreseeable prejudice from losing/removing evidence; duty to preserve applied | Duty to preserve existed; plaintiffs breached it by remediating without notice |
| Whether prejudice could be remedied by lesser sanctions (e.g., expert reliance on photos) | Photos and other records suffice; experts could still opine | Photos taken by plaintiffs and absence of expert observation during removal made physical inspection necessary; lesser sanctions would be insufficient and unfair | Lesser sanctions inadequate; prejudice substantial and unrecoverable |
| Whether defendants were required to seek sanctions before moving for summary judgment | Plaintiffs argued procedural unfairness | Rules do not require a prior sanctions motion before summary judgment; defendants may move under Pa.R.C.P. 1035.2 | No procedural error; summary judgment proper following spoliation ruling |
Key Cases Cited
- Chenot v. A.P. Green Servs., Inc., 895 A.2d 55 (Pa. Super. 2006) (summary judgment standard and appellate review explained)
- Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011) (definition of spoliation of evidence)
- Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263 (Pa. Super. 2001) (three‑factor test for spoliation sanctions)
- Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76 (3d Cir. 1994) (articulating duty/factors for spoliation sanctions adopted by Pennsylvania courts)
- Creazzo v. Medtronic, Inc., 903 A.2d 24 (Pa. Super. 2006) (plaintiff’s responsibility to preserve critical evidence; loss by third party does not excuse responsibility)
- Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa. Super. 1997) (trial court discretion in imposing sanctions)
- Wolloch v. Aiken, 815 A.2d 594 (Pa. 2002) (distinguishing discovery sanctions from summary judgment; no requirement to move for sanctions before summary judgment)