Dominick v. Hanson

Decision Date30 May 2000
Citation753 A.2d 824
PartiesVooney M. DOMINICK, Appellant, v. William N. HANSON & Martin Silberman, Appellee.
CourtPennsylvania Superior Court

J. Davy, Yockey, Trevose, for appellant.

John S. Thome, Doylestown, for Hanson, appellee.

Andrew Reimenschneider, Philadelphia, for Silberman, appellee.

Before FORD ELLIOTT and MONTEMURO1, JJ., and CIRILLO, President Judge Emeritus.

MONTEMURO, J.:

¶ 1 This is an appeal from the Order entered June 10, 1999 in the Bucks County Court of Common Pleas denying the post trial motions of Appellant/Plaintiff, Vonney Dominick, in her personal injury action against Appellees/Defendants, William Hanson and Martin Silberman. We consider whether videotaped surveillance evidence, which was not disclosed in pre-trial discovery, was nevertheless admissible at trial. For the reasons set forth below, we affirm.2

¶ 2 This lawsuit arises from a motor vehicle accident that occurred on May 25, 1995, at the intersection of Main Street and Trenton Road in Hulmeville, Bucks County. Appellant was stopped at a red light while traveling westbound on Main Street. As Appellee Hanson attempted to make a left onto Main Street from Trenton Road, Appellee Silberman hit the rear end of Hanson's car, pushing Hanson's vehicle into Appellant's car.

¶ 3 On May 16, 1997, Appellant filed a complaint against Appellees, claiming she suffered injuries as a result of the accident. In July of 1997, Appellant forwarded interrogatories to Appellee Hanson inquiring, inter alia, whether Hanson had conducted an investigation of Appellant since the accident. (Plaintiff's Motion for Post Trial Relief, Exhibit 4, Defendant's Answers to Plaintiff's Interrogatories Addressed to Defendant, William Hanson, at ¶ 50). In January of 1998, when he filed Answers to Appellant's Interrogatories, Hanson objected to the question, contending that the information was not discoverable. (Id.). In addition, in response to Appellant's inquiry whether Hanson was withholding any documents on the basis of privilege or for any other reason, Hanson answered "Yes." (Id. at ¶ 72). In late 1998, prior to trial, Hanson conducted videotaped surveillance of Appellant.3

¶ 4 Appellees conceded liability; therefore, the trial, commencing on January 25, 1999, was limited to the issues of causation and damages. Following Appellant's presentation of her case in chief, Hanson revealed for the first time that he intended to present videotaped surveillance evidence of Appellant.4 Indeed, the video and accompanying testimony by Hanson's investigators, as well as various still photographs, was the only evidence presented by either defendant. Appellant objected to the surveillance evidence, contending that it was not disclosed during discovery or at any other time prior to trial. Following argument, the court overruled Appellant's objection. On January 27, 1999, the jury returned a verdict for Appellees, specifically finding that the accident was not a substantial factor in causing Appellant's injuries. Appellant filed timely post trial motions, which were denied by Order dated June 10, 1999.

¶ 5 This appeal follows, raising a single issue for our review:

CAN THE DEFENDANTS STATE THROUGH DISCOVERY THAT SURVEILLANCE DOES NOT EXIST, CONDUCT SURVEILLANCE OF PLAINTIFF AFTER THE CASE IS ON THE TRIAL LIST, DISREGARD Pa.R.C.P. 4007.4 AND TWO LOWER COURT ORDERS RELATING TO THE CONDUCT OF TRIALS AND SUBMIT SURVEILLANCE TO THE JURY WITHOUT ANY PRIOR DISCLOSURE TO PLAINTIFF?

(Appellant's Brief at 3).

¶ 6 Appellant's issue focuses on the trial court's failure to preclude Appellees' surveillance evidence. It is undisputed that this evidence was not revealed prior to trial. Appellant contends that it was discoverable, and, accordingly, Appellees' failure to disclose it renders the evidence inadmissible.

¶ 7 Preliminarily, we note the "`[t]he purpose of the discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits.'" Smith v. Grab, 705 A.2d 894, 902 (Pa.Super.1997)(quoting Linker v. Churnetski Transp., Inc., 360 Pa.Super. 366, 520 A.2d 502, 503, appeal denied, 516 Pa. 641, 533 A.2d 713 (1987)). Pennsylvania Rule of Civil Procedure 4019 provides for sanctions if a party fails to provide discovery. "The decision whether to sanction a party, and if so the severity of such sanction, is vested in the sound discretion of the trial court." Croydon Plastics v. Lower Bucks Cooling, 698 A.2d 625, 629 (Pa.Super.1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). When a court refuses to impose sanctions, we must review the evidence to determine whether the court abused its discretion. First Lehigh Bank v. Haviland Grille, Inc., 704 A.2d 135, 139 (Pa.Super. 1997).

¶ 8 Although there are no Pennsylvania appellate cases addressing the issue, we agree that videotaped surveillance evidence is discoverable. Pennsylvania Rule of Civil Procedure 4003.1 provides that

a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the present action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

Pa.R.C.P. 4003.1(a). Clearly a defendant's videotaped surveillance of a plaintiff, who claims to have been injured as a result of the defendant's negligence, is "relevant" to the subject matter of the lawsuit. Although this evidence constitutes work product because it is prepared solely in anticipation of litigation, Pa.R.C.P. 4003.3 provides that work product is discoverable, with the exception of the mental impressions and opinions of the party's attorney and other representatives.

¶ 9 We note that our view comports with the position taken by the courts in the Eastern District of Pennsylvania with regard to the Federal Rules of Civil Procedure. There, the prevailing view is that video surveillance tapes are discoverable, but need not be disclosed until after the plaintiff has been deposed. Williams v. Picker International, Inc., 1999 WL 1210839, 1999 U.S. Dist. LEXIS 19107 (E.D.Pa.1999); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Pa.1973). Indeed, several courts have concluded that the defendant is required to disclose, when questioned, that he conducted videotaped surveillance, however, he need not turn over the actual videotapes to the plaintiff unless he intends to introduce them as evidence at trial. Gibson v. The National Railroad Passenger Corp., a/k/a Amtrak, 170 F.R.D. 408 (E.D.Pa.1997); DiGiacobbe v. National Railroad Passenger Corp., 1987 WL 11227, 1987 U.S. Dist. LEXIS 4029 (E.D.Pa.1987).

¶ 10 Although we recognize that federal cases have no precedential authority in this Court, we find this case law persuasive considering the similarities between the federal and state discovery rules. Indeed, the Explanatory Note to Pa.R.C.P. 4003.1, states that the Rule "is taken almost verbatim from Fed.R.Civ.P. 26(b)." Moreover, Pennsylvania's work product rule, Pa.R.C.P. 4003.3, is broader than its federal counterpart, Fed.R.Civ.P. 26(b)(3); the federal rule permits discovery of work product "only when the party seeking discovery shows substantial need of the materials in the preparation of his case and is unable, without undue hardship, to obtain substantial equivalent of the materials by other means." Pa.R.C.P. 4003.3, Explanatory Note (emphasis added). Under this more stringent requirement, federal courts have concluded that videotaped surveillance evidence is not protected work product. Gibson, supra; Snead, supra. Therefore, it logically follows that the same evidence is discoverable under the more relaxed standard in Pennsylvania.

¶ 11 Having concluded that videotaped surveillance evidence is discoverable, we need not determine at this time when disclosure must occur; suffice it to say that under the Pennsylvania Rules of Civil Procedure, Appellees were required, when questioned, to disclose whether they conduced videotaped surveillance of Appellant prior to trial. We now must determine whether Appellees' failure to disclose the evidence in the present case should have rendered it inadmissible.

¶ 12 Although the trial court agreed that surveillance videotapes are most likely discoverable under the Rules, it concluded that Appellees' failure to disclose the existence of the tapes prior to trial did not affect the tapes' admissibility, as Appellant failed to make an appropriate request for surveillance evidence. We agree. In her Interrogatories directed to both defendants, Appellant inquired whether Appellees conducted any investigation of Appellant since the accident. Appellee Hanson specifically objected to the question, deeming the information "not discoverable." He based his objection on a 1996 opinion by Judge Biehn, then President Judge of the Bucks County Court of Common Pleas. In Kurtz v. Hydrocarbon Research, Inc., 32 Pa. D. & C.4th 205 (C.P.1996), Judge Biehn held that a plaintiff's interrogatories concerning surveillance evidence were impermissible, as disclosure before trial had a significant potential for abuse; accordingly, he denied the plaintiff's motion to compel the defendant's answers. Hanson also indicated that he was withholding evidence under a claim of privilege. Although we now conclude that Hanson's objection should have been overruled, Appellant never challenged the objection by petitioning the court to dismiss the objection and direct that the interrogatory be answered pursuant to Pa.R.C.P. 4006(a)(2).5 Her failure to challenge the objection before trial renders any objection now moot.6 ¶ 13 Appellant contends, however, that Hanson was obligated to supplement his interrogatories when he conducted surveillance...

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