Judge Nealon of Lackawanna County Discusses Discovery Sanctions and the Code of Civility

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. Oct. 29, 2021 Nealon, J.), Judge Terrence R. Nealon provided lessons on the current law for deciding motions for sanctions on discovery issues and regarding civility amongst counsel.

This matter arose out of a motor vehicle accident. During the course of discovery, a dispute arose over the Defendant’s apparent refusal to respond to discovery requests seeking liability insurance documents.

Despite the trial court issuing multiple Orders compelling the Defendant to respond to various discovery requests, the requested information was allegedly not forthcoming. As such, the Plaintiffs filed a Motion for Sanctions.

In reviewing the Motion for Sanctions, the court reviewed the current status of Pennsylvania law with regards to the imposition of sanctions under Pa. R.C.P. 4019 when a trial court’s discovery Orders are not obeyed.

Judge Nealon noted that, under Pennsylvania law, while the trial court judges are afforded great discretion in fashion and remedies or sanctions for violations of discovery Rules and Orders, the law does require that the court select a punishment that “fits the crime.”

Judge Nealon reviewed the five (5) separate factors that are considered to be a necessary part of the consideration when reviewing a request for sanctions based upon a discovery violation.

Those five (5) factors are:

(1) the nature and severity of the discovery violation;


(2) the defaulting party’s willfulness or bad faith in failing to comply with discovery;


(3) the resulting prejudiced to the other party;


(4) the non-offending party’s ability to cure any prejudice; and,


(5) the number of discovery violations by the non-compliant party.

After applying these factors to the case before him, the judge confirmed that the Defendant had continuously ignored its discovery obligations, willfully disobeyed the discovery Orders of Court, and unnecessarily strained the limited judicial resources by the Defendant’s actions.

As such, the court granted the Plaintiff’s Motion and awarded counsel fees and reasonable expenses in connection with the preparation of the Motion for Sanctions. The court did grant the Defendant the right to contest the reasonableness and necessity of the fees that may be put forth by the Plaintiff.

The court also noted that the conduct at issue in this case was violative of the Pennsylvania Code of Civility’s aspirational provisions advocating civil, respectful, and courteous discourse, and also discouraging acrimonious speech and disparaging personal remarks.


Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Lukas from Pexels.com.

Code of Civility Relied Upon For Admonishment of Counsel

Can the Code of Civility serve as a basis of a trial court Order admonishing counsel in a case for conduct in litigation? 

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. June , 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Commons addressed numerous discovery related motions filed by each party in what he described as an “exceedingly acrimonious motor vehicle accident litigation.” Of note, the Court granted the Plaintiff’s motion to admonish the defense attorney under the Code of Civility.

The court addressed issues regarding the defense efforts to compel discovery depositions of three (3) treating physicians that the Plaintiffs have identified as expert witnesses or to alternatively require the Plaintiff to call those physicians as experts at trial, to strike the Plaintiffs’ objections to discovery responses and compel more specific answers, and to be granted “priority” with respect to the ability to question a particular deponent first during her deposition. 

The Plaintiffs’ motions requested the issuance of an Order barring further discovery related to three (3) discontinued medical malpractice actions that were filed against the Plaintiff, who happened to be a physician. The Plaintiffs also sought the production of the Defendant driver’s cell phone records and Answers to Interrogatories regarding the defense expert’s litigation activity and income. 

Also of note, the court addressed the Plaintiffs’ motion seeking a formal admonishment of the defense counsel for certain conduct to date that the Plaintiffs asserted was in violation of the Code of Civility and the Rules of Professional Conduct particularly with reference to written communications by email between the parties. 

The court’s 53 page Opinion offers a good read and a thorough analysis of all of these issues presented. 

In the end, the court agreed to grant in part and deny in part the various motions presented. With respect to the Plaintiffs’ motion regarding the alleged violations of the Code of Civility, the court agreed that an admonishment to the defense counsel to be more attentive to the principles of professionalism was warranted.

Anyone wishing to review a copy of this decision may click this LINK.