A Berks County judge’s decision to dismiss a slip-and-fall case after the plaintiff failed to timely respond to discovery requests was too severe given that no motion to compel was ever issued and there was no evidence the delay prejudiced the defendant, the Pennsylvania Superior Court has ruled.

In Pollock v. F&D Investors, a three-judge panel ruled 2-1 to reverse Berks County Court of Common Pleas Judge Jeffrey Sprecher’s ruling dismissing the case.

“Despite appellee’s counsel’s expressed concerns that appellant was failing to respond to its discovery requests, at no time did appellee seek an order from the court to compel appellant’s compliance or for sanctions,” Judge Alice Beck Dubow said in the majority opinion. “In fact, appellee states that it ‘had intended to use the scheduled conference to discuss the outstanding discovery and reach an amicable solution so as to avoid judicial intervention with a motion to compel.’”

Dubow was joined in the result by Judge Paula Francisco Ott and Senior Judge Eugene Strassburger III.

But Strassburger wrote a separate concurring and dissenting opinion noting that while he agreed dismissal was too extreme, he would have remanded for more appropriate sanctions rather than simply reversing the lower court’s ruling.

“While the trial court abused its discretion by discontinuing the action with prejudice, in my view, this does not mean that appellant should not be sanctioned at all,” Strassburger said. “The trial court found that instead of responding to discovery requests with an objection or obtaining a protective order, appellant simply ignored the requests. Appellant did not contest this factual finding on appeal. Additionally, part of the reason for the sanction was the failure of appellant’s counsel to appear for a status conference.”

In Pollock, plaintiff Ruben Pollock filed suit against F&D Investors alleging he slipped and fell on its property. On Jan. 31, 2017, Pollock answered F&D’s discovery incompletely and subsequently, in March and April of last year, failed to comply with two of F&D’s requests for medical records. He then missed a May 2, 2017, status conference, which prompted Sprecher to discontinue the case with prejudice “‘for failure of [Pollock] to prosecute the matter.”

But Dubow said only three months passed between the time Pollock incompletely answered F&D’s interrogatories and the status conference.

“There is no evidence of record, finding by the court, or allegation by appellee that, at the time of the May 2, 2017, hearing, appellant’s failure to provide prompt responses to appellee’s discovery requests had prejudiced appellee,” Dubow said. ”There is likewise no evidence, finding, or allegation that appellant acted willfully or in bad  faith when failing to provide the requested discovery materials. Accordingly, and in light of the fact that the court had not entered an order directing appellant to comply with appellee’s discovery requests, we conclude that the trial court abused its discretion in imposing the extreme sanction of dismissing appellant’s complaint.”

Counsel for Pollock, Marc Simon of Simon & Simon in Philadelphia, said defense attorneys have increasingly been pushing to have cases dismissed on procedural grounds.

“This tactic by defense lawyers against Simon & Simon of begging the court to throw our cases out before trial has become commonplace, because defense lawyers are scared to step into the ring with us and try cases in front of juries and let juries decide value,” he said.

F&D’s attorney, Barrie Gehrlein at Johnson, Duffie, Stewart & Weidner in Reading, could not be reached for comment.