A Pennsylvania plaintiffs attorney and his clients have been sanctioned for “repeated failures and/or refusals to participate in deposition” in a motor vehicle accident case that has been ongoing for seven years.
Monroe County Court of Common Pleas Senior Judge Linda Wallach Miller, on special assignment with the Pike County Court of Common Pleas, granted defendant Katlyn Horacek’s motion for sanctions in the case. Wallach Miller said plaintiffs Amanda Middaugh, Sarina Middaugh and Raymond Middaugh, along with their attorney, Charles Kannebecker, failed to comply with two court orders requiring their attendance at depositions, needlessly dragging out the case for years and prejudicing the defense.
In an opinion and order, dated March 16 but docketed April 2, the judge prohibited the plaintiffs and their attorney from submitting any evidence in support of their claims for damages and sanctioned the three named plaintiffs $1,000 each, payable to Horacek’s counsel.
Wallach Miller said the case was just one of several in which Kannebecker exhibited similar behavior.
“If this were the only motion of this type involving plaintiffs’ attorney our decision might be different,” Miller said. “During our three-month assignment as senior judge in this county, plaintiffs’ attorney appeared numerous times on motions similar to this one. We heard, time and time again, from opposing counsel of time spent attempting to schedule matters and we handled numerous cases where plaintiffs’ attorney failed to comply with court orders. No defendant should have a case hanging over their head for over seven years.”
Kannebecker, of Kannebecker Law in Milford, did not respond to a call seeking comment on the decision.
Miller’s opinion said the suit stemmed from an August 2008 car accident and was filed by the plaintiffs against Horacek and third-party defendant State Farm Insurance in 2011. Horacek filed her first motion to compel deposition of plaintiffs in September 2013 and on March 9, 2015, following several continuances, Pike County President Judge Joseph Kameen issued an order mandating that all depositions be conducted within 45 days. However, no depositions were scheduled or conducted during that time.
On March 20, 2017, Horacek filed a second motion to compel plaintiffs’ depositions and on June 6, 2017, Wallach Miller ordered that all depositions be conducted within 60 days—an order the judge stressed was made by agreement of all the parties. However, following that order, according to Wallach Miller’s opinion, Horacek’s counsel proposed several dates for deposition but Kannebecker said either he or his clients would not be available on any of those dates and failed to offer any alternatives. Horacek’s counsel proposed more dates in July 2017, but received no response from Kannebecker.
On Aug. 4, 2017, up against the deadline set forth in the June 6 order, Horacek’s attorney noticed for depositions but Kannebecker again indicated that his clients would not appear.
On Aug. 14, 2017, Horacek filed a motion for sanctions for plaintiff’s failure to appear for court-mandated depositions, to which the plaintiffs responded with an answer and brief in opposition Sept. 6, 2017. Argument was held on the sanctions motion the following day, according to Wallach Miller.
In her opinion, Wallach Miller said the record “clearly shows that sanctions against the plaintiffs are warranted because defendant has been prejudiced by the age of the case and lack of important information and subjected to plaintiffs’ willful non-compliance and/or bad faith.”
“This court agrees, as memory fades and wounds heal with the passage of time, defendant is increasingly hindered in her ability to prepare a defense,” the judge said, adding, “Faced with the age of this case, the prior court orders which have thus far been disregarded, and the consistent course of evasive conduct espoused by plaintiffs and their counsel, we have no choice but to find that plaintiffs’ repeated failures to schedule and participate in depositions are willful and/or undertaken in bad faith.”
While the plaintiffs’ answer and brief in opposition to the sanctions motion cited short notice, Kannebecker’s busy trial schedule and the unavailability of State Farm’s attorney among the reasons why they had yet to comply with the June 6 order, Wallach Miller was unpersuaded.
“We acknowledge that each explanation offered by the plaintiffs may be sufficient to overcome a request for sanctions under normal circumstances; this court can appreciate a busy trial schedule, a desire to protect the interests of other parties to an action, and attempts to resolve issues without court intervention, even when those attempted bear no fruit,” the judge said. “However, each of plaintiffs’ explanations as to why they failed to conform to two separate orders of court are belied by the age of the case and multiple attempts to hold depositions in the past.”
Wallach Miller also rejected an apparent attempt by Kannebecker to avoid sanctions by finally making his clients available for depositions.
“After drafting and redrafting this opinion, we have deliberated long and hard in the hope that plaintiffs’ attorney would comply with the previous two court orders to appear with his clients for depositions,” Wallach Miller said. “By virtue of a motion filed by plaintiffs’ attorney with another judge of this court, we learned that he did appear with his clients and asked that we find defendants’ motion moot. However, as we have seen in many other cases involving plaintiffs’ attorney, while appearing he directed his clients to answer no relevant questions. Thus, making the depositions fruitless.”
Horacek’s attorney, Kevin Hayes of Scanlon, Howley & Doherty in Scranton, declined to comment on the ruling.
Counsel for State Farm, Thomas Comerford of Foley, Comerford, & Cummins in Scranton, did not respond to a call seeking comment.