The Superior Court has set aside summary judgment for defendants in a business dispute plagued with discovery delays.

A unanimous three-judge panel ruled September 26 that the entry of summary judgment against the plaintiff in Yampolsky, Mandeloff, Silver, Ryan & Co. v. Economou was not supported by the record. The decision overturns Philadelphia Court of Common Pleas Judge Leon W. Tucker’s ruling, which determined that plaintiffs counsel’s actions during discovery constituted contempt and reason to dismiss the case.

Judge Jack A. Panella wrote the memorandum opinion. He was joined by Judge John T. Bender and Senior Judge James J. Fitzgerald III.

“While we do not absolve appellant of any and all blame for its repeated discovery sanctions, and do not prohibit the trial court from imposing other, more appropriate sanctions as it sees fit to ensure appellant’s future compliance, we find that the entry of summary judgment in appellee’s favor was too severe a sanction based upon the evidence of the record,” Panella said.

According to the decision, Yampolsky initiated the suit against 13 companies seeking payment for accounting fees. The case went through the Philadelphia compulsory arbitration program.

During discovery, several requests for continuances and motions to compel discovery were filed by both sides, and in May 2012, the trial court ordered Yampolsky to provide requested discovery items within 10 days and to produce eight deponents within 14 days or face sanctions. The case proceeded to arbitration, where the arbitrators found in favor of Yampolsky. The defendants then appealed the arbitration award.

The wife of Yampolsky’s counsel died August 13, 2012, and shortly after, the defendants scheduled depositions for September 7 and September 10, 2012; however, Yampolsky did not produce the deponents, the opinion said.

On September 27, 2012, the trial court ordered Yampolsky to produce deponents within 10 days, and to pay the defendants’ counsel $500. The court also declared that failure to comply would result in Yampolsky being prohibited from offering evidence and testimony regarding liability and damages if the case were to go to trial.

After the defendants sent another notice of depositions, Yampolsky said only two of the eight deponents were still employed at the firm, and only those two could be produced.

The parties stipulated to hold depositions on October 11, 2012; however, Yampolsky’s counsel, Philip A. Yampolsky, was notified October 10 that he would need to be in the Montgomery County Court of Common Pleas at 11 a.m. the following day for an unrelated matter. The defendants offered to begin depositions at 1 p.m. on October 11, 2012; however, attorney Yampolsky said “things in court don’t always go as strictly scheduled,” and asked that the parties reschedule depositions for another day, according to the opinion.

On October 26, 2012, the defendants filed a motion for summary judgment, which was granted December 6, 2012. The court also denied Yampolsky’s motion for reconsideration.

Panella recognized in his opinion that the standard requires the Superior Court to uphold a trial court’s imposition of sanctions unless there is an abuse of discretion; however, he said that based on the facts of the case, the trial court had acted too harshly.

Panella also said the court erred in determining that Yampolsky’s failure to produce the eight deponents or to remit the $500 was “not only willful and committed in bad faith, but also [rose] to the level of contempt.” He said Yampolsky failing to produce the deponents did not severely prejudice the case, nor constituted an insurmountable impediment, and noted that the defendants can subpoena the employees.

Panella also said the trial court’s finding that the record did not show that Yampolsky’s counsel was using the death of his wife to unreasonably delay the proceedings.

“Although we agree with the trial court that this tragedy ‘does not give appellant license to use that as a basis to stall the discovery process of the court for months at a time’ … there is merely no evidence of record that appellant purported to do so,” Panella said.

He also said the record did not indicate that Yampolsky’s request to reschedule instead of hold depositions at 1 p.m. following the unrelated matter in Montgomery County “was merely a continuation of its dilatory and unreasonable failure to proceed with discovery,” and argued that the parties should have acted together to resolve the issue.

“Although we fully empathize with the trial court’s frustration in the extended discovery delays of this case, we cannot categorize appellant’s counsel’s latest noncompliance to be willful or in bad faith,” Panella said. “The prudent and reasonable course between the parties would have been to agree to reschedule the depositions for a mutually agreed upon time at a later date, rather than resort to preclude appellant from entering any evidence in the trial of this matter.”

Philip A. Yampolsky is a solo practitioner and is not a principal in the appellant’s firm.

“I’m gratified that the court saw it my way that the sanction imposed was not commensurate with the nature of the discovery violation,” he said.

Michael Swartz of Kane & Silverman represented the appellees and did not return a call seeking comment.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI.

(Copies of the six-page opinion in Yampolsky, Mandeloff, Silver, Ryan & Co. v. Economou, PICS No. 13-2816, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •