*3 ELLIOTT, Bеfore FORD EAKIN and Smitley November Mr. filed a no- On OLSZEWSKI, JJ. appeal tice of challenging the orders of Octo- Landmark) (summary judgment ber 11 for OLSZEWSKI, Judge: (summary judgment and October 15 for Holi- appeals These three arise out of a vehicle day). appeal This is docketed No. 935 fire in a Dodge modified 1991 Aeromate van. 1). (hereinafter Harrisburg Appeal Mr. appeals present The several issues concern- Smitley petitioned next the trial court for proper procedure for considering a allowance tо the October 11 order motion for summary judgment prop- and the pro peti- nunc tunc. The court er appealing granting time for an order later, days tion on December 12. Six Mr. procedural same. Resolution of these issues Smitley appeal. notice of filed a second This requires also us to consider when a trial appeal, Harrisburg No. 3 docketed at product liability dismiss a claim (herein- challenges only the October solely based pro- on the failure to plaintiffs 2). Appeal December On Land- allegedly product. duce the defective appeal challenging mark filed a notice of part part. affirm in and remand (allowance December nunc complaint Mr. alleging neg- filed a tunc). pro docketed at No. 20 ligence product liability August and strict on (hereinafter 3). Harrisburg 11, 1994. complaint named defendants (Landmark), The vehicle at Landmark issue manufactured Dodge, Holiday Inc. (Holiday), Holiday Smitley by Coiporation Greg Rambler sold to Land- Deim- ler, (Deimler Scrap Recyelers mark.1 purchаse Deimler Prior to in- t/d/b/a Smith, Scrap), Towing and Jeff Smith modify formed Landmark of his intention to Vd/b/a missions, grant 1. summary judg Long Yingling, Because we review a and affidavits. ment, light (citations set forth the facts in the (Pa.Super.1997) most 700 A.2d omitted). plead favorable to Mr. as taken from the ings, depositions, interrogatories, answers to ad required by [judgment] disability2 the vehicle to accommodate his trips. procedure? of civil camping Throughout his own- rules during repeatedly ership engine over- incorrectly vehicle’s de- [c]ourt Did the [t]rial April re- heated. of the vehicle cide that the destruction Holiday informing him a letter from ceived precludes action prior trial of this cooling system could be that his vehicle’s proving product lia- Smitley] from [Mr. “continuing part Holiday’s modified malfunction bility claim under the product improvement program.” Landmark by deci- as established May 14, performed these modifications Supreme Pennsylvania sions later, Less month on June than a Pennsylvania Superior Court? ascending a the vehicle while overheated Smitley, Har- appellant Donald Brief of occasion, however, On this mountain road. 1996, 4. risburg *4 engine compartment. began fire the For- 2, the Appeal In Mr. reiterated escaped tunately, Mr. his driver and following: questions added the foregoing destroyed uninjured. rapidly The fire by ordering that the trial court err Did proper- Smitley’s personal and all Mr. vehicle present evidence Smitley] could not [Mr. remains, ty Afterwards, the therein. damages were covered as to which salvage yard. vehicle were removed to insurance? salvage yard sрecifi- visited Harris- appellant Smitley, Donald 3 Brief of proprietor cally instructed 1997,at burg 5. investigation. for remains further 3, presents the 12, Appeal Landmark fol- In investigator a fire June examined lowing single question: investigator remains. vehicle The deter- engine originated fire in the mined filing for an be en- Can thie time compartment. damage, The fire appellant extensive claim does not larged when the however, prevented determining him from fraud, processes breakdown specific origin. causation or the area of court, any other allowable reason for thereafter, Sometime the remains were de- filing? untimely stroyed contrary Smitley’s explicit to Mr. Inc., Dodge, 20 Brief of Landmark instructions.3 1997, Harrisburg opinion In the filed its October pre question first consider the order, 1996 the trial court found that Mr. Appeal 3. Mr. Smit sented Landmark Smitley’s on insuffi- evidence causation was petitioned the trial court for ley apparently negligence cient to sustain a cause of action. Appeal pro 2 nunc tunc file allowance finding the fire The court based on the chal believed that because inability investigator’s to determine the cause Appeal 1 lenge 11 order in of the October fire with a reasonable of cer- This, untimely.4 tainty. The court also found that Mr. Smit- fact, 11 did not In the October order ease. ley’s product liability of action strict cause appealable’until the October order become spoliation doctrine. The was barred Thus, pre properly Appeal was entered. granting judg- October order Smitley’s challenge both or served Mr. Holiday expressly relied ment favor of on Therefore, Appeal quash ders. opinion. the October Appeal 3 moot. determination renders Appeal Smitley presents appeal measured filing for time following questions: two appealable order is entered. from the date an 903; Service see also Civil fail See Pa.R.A.P. [Mr. 1. Did the trial court to allow 226, 544 Rogers, Pa.Cmwlth. Smitley] respond time to to a motion Comm’n dated from dystrophy requires time of that order him 4.If 2. Mr. muscular mobility. personal would be entry to use a wheel chair for its then October 903(a). days too late. See Pa.R.A.P. two Smidey tide in the vehi- 3. Mr. never transferred salvage yard. cle remains to (1988). Pennsylva “Under of an disposing order of all claims law, nia may only parties. be taken from an or of all Appeal must be taken (Pa.R.A.P. interlocutory right id.; order as of thirty days within thereafter.6 See Pa. 311), (Pa.R.A.P.341), from final order from R.A.P. 341. The only October (Pa.R.A.P.313), granted collateral order or from an Landmark’s motion for (Pa.R.A.P. interlocutory by permission judgment. It was not until the October 15 702(b)).” order, granting Holiday’s § Pa.C.S.A. motion for sum- Conti mary Co., judgment, nental Bank Bldg. parties v. Andrew that all claims or 436 Pa.Su (1994). disposed. per. were The trial court made no None finality thirty days determination within appeals these are taken from an interlocu 341(c)(1). provided by tory Consequently, Rule right. order as of See Pa.R.A.P. 311. the October 11 Nor has order did not become final the trial court permission until the for an October 15 order was interlocutory entered. appeal. Consequently, the October 11 only immediately ordеr was The October 11 order is not collat appealable if either final or collateral. eral. may, Where order is not final it
The October 11
nevertheless,
order was not
appealable
final when
under the collat
entered.
Appellate
Under Rule of
Procedure
eral order rule. See Pa.R.A.P. 313. “A col
341,5 an order granting summary judgment
separable
lateral order is an order
from and
a,
*5
several,
all,
to
but not
defendants named in
collateral to the main cause of action where
сomplaint
civil
is not a final order unless
right
important
involved is too
to be
trial court expressly determines the order
denied review
question presented
and the
is
should be treated as such. See Pa.R.A.P.
such
if
postponed
review
until
is
final
341,
(listing
Note
“an
dismissing
judgment
ease,
order
an
in the
claim
irrep
will be
action ... as to less than all
arably
defendants” as
Although
adopted
lost.” Id.
until
an order that
appealable
1992,
is not
absent an
body
Rule 313 codifies a
of common law
express
court);
by
determination
dating
trial
see
Suрreme
back to the United States
Fayne,
432,
also Bonner v.
Pa.Super.
657 Court decision in Cohen v.
Indus
Beneficial
(1995). Instead,
A.2d 1001
partial grant
Corp.,
trial
337 U.S.
69 S.Ct.
judgment only
(1949).
becomes final L.Ed. 1528
As the Commonwealth
September
5. Prior
pro-
to
petition
may
Pa.R.A.P. 341
for review
be filed within 30
part:
amended,
vided in relevant
days
entry
of an order as
period
provided
unless a shorter time
is
in
(b) Definition of Final Order. A final order
903(c)
1512(b).
Rules
or
any
is
order that:
(1) disposes
parties;
of all claims or of all
recognize
language
6. We
that certain
in Tohan v.
or
Owеns-Corning Fiberglas Corp.,
Bollinger Pa.Cmwlth. pursued prior appeal. Spang have (1989). Hence, in order Pa.Super. Corp., Co.& USX collateral, as an order must not be qualify (1991). All of the issues raised affect, interlocutory “an nature as to such ” Appeal 2 could have been raised be the merits of the main cause affected be Accordingly, Appeal properly is not (quoting action. Cohen v. Beneficial quashed. This and must fore be 546-47, Corp., 337 69 S.Ct. Industrial U.S. appeal of moot Landmark’s result renders 1225-26). mentioned, previously As 3). (Appeal order December the trial October 11 was based on (Ap remaining appeal ceed to consider the (1) findings court’s that: failed l).8 peal produced sufficient evidence that defect (2) Summary judgment properly entered the vehicle caused fire precluded pleadings, depositions, destruction of the vehicle remains where the answers admissions, togeth- interrogatories, cause of action. These effectively main gen- determinations settled the no er with affidavits demonstrate that Consequently, cause of action.7 uine, October and that triable issue fact exists properly 11 order cannot characterized moving party is entitled collateral. exam- as matter law. The court must light in the most favorable ine the record Because the was neither October non-moving party and all resolve collateral, final when entered nor party. аgainst moving More- doubts summary judgment in favor of Landmark did *6 over, party moving is on the burden appealable not until 15 become the October no of material prove genuine that issue Accordingly, time entered. fact exists. are not bound the trial appeal lasted until November 14. See law, may of but court’s conclusions draw ap- (stating Pa.R.A.P. 903 that the notice of reach own our own inferences and our peal days must “be filed within 30 after the of grant will reverse entry of the order from which the is conclusions. We taken”). Thеrefore, judgment summary the November 12 notice when the only Appeal presented challenge grants 11 in 1 both The October order's effective resolution summary summary judgment. grants The all issues in case does not make the order judgment present and each is Although gives aspects identical issues final. this the order Smitley finality, a brief before this aspect’ approach discussed Mr. in ‘final "the determin- Furthermore, both Landmark and Holi- appealability Court. ing has been abandoned in the Therefore, day reply apрeal. in each filed briefs v. amendments to Pa.R.A.P. 341." Hanson 1992 Appeal do not 260, 1 brief the deficiencies Signal Corp., Pa.Super. 679 Federal 451 785, hamper Accordingly, we (1996) (footnote omitted); review. decline to our also 787 see grant Smitley’s challenge to dismiss Mr. Bell v. State Farm Mutual Automobile Insurance Landmark. in favor of 435, Company, Pa.Super. 430 A.2d 1137 634 (1993) (explaining the 1992 that amendments hand, challenge grant other sought simplify the Pa.R.A.P. 341 determina- only presented in of the motion in limine is final). tion of whether order is brief, Smitley Appeal Mr. admits the 2. In thаt Instead, evidentiary appropriate. limit is provides only argument 1 The brief Smitley limiting argues his the court erred summary entiy judgment against favor evidentiary question recovery. Because the Holiday. Consequently, Landmark contends incorrectly only presented filed in the challenge Smitley’s that we should deem Mr. Smitley provides argument no because Mr. summary granting fa in its question presented, support of the actual We, however, Corbman, decline to take vor waived. will 452 issue is waived. See Kituskie 467, 378, (1996), Pa.Super. do action wherе the deficiencies of brief 383 such 682 A.2d 628, (1997); appellate preclude meaningful granted, See 967 review. 548 Pa. 693 A.2d not 162, Iorio, 330, Smathers, Pa.Super. Pa.Super. Bank v. Smathers v. Commonwealth (1996). 820, (1996). questions A.2d 1159 679 A.2d 830 n. The Fisher, (June
court has 3, 12, 1992); committed an error of law or deposition of Fisher, its 5,1996). abused discretion. (Aug. David B. at 11 Noth- disputes in the record the court’s conclu- (Pa.Su- Long Yingling, 508, 700 A.2d Smitley’s appellate sion. Nor does Mr. brief (citations omitted). per.1997) that, time, assert had he been afforded more asserts that the trial presented he would have additional evidence court failed to him afford sufficient time to establishing question a material regard respond to the motions for summary judg Moreover, negligence claim. aside ment. Mr. argues that Rule of Civil procedural from his argument, 1035.8(a) Procedure requires trial courts to does not dismissal otherwise contend that the allow non-moving parties thirty days to re negligence claim was in error. Ac- spond to motion for judgment. cordingly, we find that the trial court afford- provides Rule 1035.3 a mechanism through ed Mr. a full opportunity and fair which the trial court enter judgment respond to the motions for judg- against party timely that fails to file briefs. concerning ment negligence cause of ac- It is not meant abrogate general rule tion. motion, ruling “when on a it is within dismissal of Mr. strict The the discretion of the trial court to decide product liability cause of action is more whether briefs argument oral are re and/or blematic. The court determined no ad quired or whether the matter can be best discovery ditional responsive or briefs were disposеd of from a review of the record required because Myszkowski alone.” See v. Penn Stroud Ho only dispute factual is whether [the tel, Inc., 430 Pa.Super. 634 A.2d salvage yard proprietor] destroyed the re- (1993) (citing Gerace v. Holmes Protection of mains of the vehicle at the direction of Phila., Pa.Super. 516 A.2d Smitley] agents. [Mr. or one of his Under (1986)). law, Pennsylvania dispute this factual Despite the express absence of an Pennsylvania irrelevant. The case law provision, notice we have held that a trial plaintiff is сlear. brings When a an action parties must afford a full and fair alleging injury as a result a defective opportunity argue against a motion for product plaintiff’s duty it is pre- summary judgment. Taylor v. Owens- serve the inspection for defense Corning Fiberglas Corp., Pa.Super. Smitley] forfeit the claim. Since [Mr. did (1995). Where, 689-90 howev vehicle, *7 his of sum- er, party prejudiced, neither is a trial court mary judgment appropriate. may grant summary judgment without 10/15/96, (citations opinion Memorandum at 4 viding opposing parties an opportunity to omitted). Essеntially, the court argue or responsive file Mysz briefs. See legal on the based con- Hotel, Inc., kowski v. Penn supra. Stroud per clusion that a barring there is se rule a Myszkowski In upheld of sum plaintiff product liability in a action from mary judgment any opportunity without to proceeding plaintiff pre- fails where the to argue response or file upon finding briefs allegedly product. serve the defective We that “there was an extensive record before disagree. the trial court legal and it was of aware the We hаve stated that “where a (footnote positions parties.” of the Id. omit plaintiff brings claiming an action that [she ted). injury or] he as a suffered result of a defec regard With negli product, to produce tive [or her] failure claim, gence the court product found that Mr. Smit- the inspection by the defense will ley’s expert was unable to summary determine the render appropriate.” cause of the degree fire with a reasonable v. Hocking, Pa.Super. DeWeese Anchor 427 certainty. (1993) J.) supported by (Olszewski, This conclusion is 628 A.2d report both the deposition Co., and the (citing of Mr. v. Roselli Electric General Smitley’s expert. report (1991)). Pa.Super. of David B. 687-88 fault, seriously at offending party is principle the subsequently has come to This Long by spoliation doctrine. See sueh conduct others known as the will deter serve by Yingling, supra. opinions recent v. Three in the future. applicability have the this Court limited (quoting v. Milwaukee Id. at 494 Schmid Yank, Big v. the doctrine. In O’Donnell (3rd 78-79 Corp., Elec. F.3d Tool ap- (Pa.Super.1997), we refused to A.2d 846 Cir.1994)).9 by As illustrated our discussion spoliаtion product ply where the Dansak, developments in the our recent design a claim was based on defect parallel Third Cir spoliation doctrine the manufacturing a In rather than defect. reasoning Id. 494- in Schmid. See cuit’s supra, apply
Long Yingling,
v.
we refused
Yank,
Big
supra
O’Donnell v.
95. See also
alleg-
spoliation against
plaintiff
a
where
spoliation
product
apply
where defen
edly
(refusing
in the control of
defective
was
Long
time it
lost.
v.
prejudiced);
bailee at the
was
Yin
defendant’s
dants were
recently,
Most
in Dansak v. Cameron Coca-
(refusing
spoliation
apply
gling, supra
Inc.,
Bottling Company,
Cola
plaintiff
the defendant was
against a
where
(Pa.Super.1997),
apply spolia-
we refused
fault). Hence, we conclude that
arguably at
plaintiff
at fault for
tion where
was not
78-79,
Schmid,
forth the
13 F.3d
sets
product.
disposing of the
Our decision
spoliation
doc
proper considerations for
by
guided
reasoning
Dansak was
Pennsylvania.10
trine
Third Circuit which
that:
holds
incorrectly
Because
key
determining
whether
considerations
рer
spoliation
as a
se
applied the
doctrine
appropriate
such a sanction is
be:
should
rule,
erroneously
was
denied
(1)
degree
party
of fault of the
who
respond
time
to the motions for
sufficient
(2)
evidence;
destroyed
altered
judgment.
Smitley alleges
prejudice
oppos-
suffered
(1)
proprietor
of the
(3)
he instructed
ing party;
is a less-
whether there
salvage
remains
yard maintain
vehicle
will
un-
er sanction that
avoid substantial
and,
they
required
opposing party
indefinitely because
would be
fairness to the
where
Accordingly,
we were
Dis
sold
defendants.
9. The
District Court for the Eastern
Federal
judg-
Pennsylvania
grant
affirm the
trict
has cited our decision in
constrained to.
Thus,
plaintiff s
extending
[spoliation
affirmance rested on
doctrine]
ment.
our
DéWeese
"the
than
plaintiff
his case-in-chief rather
to include instances when a
never even
failure
establish
We
product,
spoliation doctrine.
fail to see how
had
of the
on the
control
party.”
holding
spoliation
doctrine.
a
v.
extends
discarded
third
Sеe Schwartz
America, Inc.,
F.Supp.
Subaru
(E.D.Pa.1994). Although
highest
we have
Dept.
recognize
that in Schroeder
court,
respect
colleagues
for our
on that
we must
(Pa.Cmwlth.1996),
Com.,
Transp.
siderations set forth in
Schmid, supra, dеciding when whether dis- grounds spoliation.
missal is warranted on appeals Harrisburg docketed No. 3 Harrisburg
1997 and No. 20 1997 are
quashed. Harrisburg No. 935 we negligence affirm the dismissal cause Pennsylvania, COMMONWEALTH regard action. With to the dismissal of Appellee, action, product liability the strict cause reverse the decision of the court below and proceedings. remand further Jurisdic- MECHALSKI, Appellant. John relinquished. tion Pennsylvania.
Superior Court of Concurring opinion by EAKIN, J. Argued Oct. *9 Filed Feb.
EAKIN, Judge, concurring: T agree my colleagues appellant’s responsibility destruction law,
vehicle is not irrelevant as a matter
but I find the prejudice here to overwhelm