spoliation doctrine in Pennsylvania

2016Id. -6- J-A21038-16 Initially, we observe that Daly’s claim regarding the applicability of the spoliation doctrine was not raised in her Pa.R.A.P. 1925(b) Concise Statement.

2012Wiegand Division, 781 A.2d 1263, 1273 (Pa. Super. 2001) (holding that the trial court did not abuse its discretion in not giving a spoliation instruction since the loss of evidence from the fire scene was not attributable to any negligence or bad faith on the part of the offending party and relatively little prejudice was proven to have occurred). 12 CONCLUSION Having determined that no error of law or abuse of discretion was committed, and further determined, after a review of the whole record, that even absent the foregoing, the likelihood of prejudice is minimal, we deny Mizenko’s motion in

2017In affirming the trial court’s order, we determined that the plaintiff bore responsibility for preservation of the device and that the fact ____________________________________________ 2 The three-part spoliation test set forth in Schmid was adopted by our Supreme Court in Schroeder v. Commonwealth, Department of Transportation, 710 A.2d 23, 27 (Pa. 1998). -7- J-A04003-17 that it was lost by a third party did not excuse that responsibility.

2016Yet the very stove she used and contends may have malfunctioned was destroyed well before [Appellants] sued [Sanders]. [Appellants] did not appear to contest the first two prongs at argument. [Appellants’] counsel stated that[,] “Our argument kind of begins and ends with the least-restrictive sanction portion of this test.” ____________________________________________ 2 The three-part spoliation test set forth in Schmid was adopted by our Supreme Court in Schroeder v. Commonwealth, Department of Transportation, 710 A.2d 23, 27 (Pa. 1998). -5- J-A26012-16 The essence of [Appellants’] argument i

2001Schroeder, 710 A.2d at 27-28 ; Pia, 718 A.2d at 325 ; Schmid, 13 F.3d at 81 . 9 Thus, we conclude that the trial court did not abuse its discretion in failing to impose this sanction. ¶ 29 Appellant argues that the trial court erred by failing to impose any sanction, including lesser sanctions such as a spoliation instruction to the jury. 10 The record reveals that Appellant did request a spoliation instruction, but the court did not provide one.

2001A spoliation instruction permits the jury to infer that ‘‘the destroyed evidence would have been unfavorable to the position of the offending party.” Schmid, 13 F.3d at 78 . .

1998We have soundly rejected this per se interpretation of the spoliation doctrine. 1 See Smitley v. Holiday Rambler Corp., 707 A.2d 520 (Pa.Super.1998); Sebelin v. Yamaha Motor Corp. 705 A.2d 904 (Pa.Super.1998); Dansak v. Cameron Coca-Cola Bottling Co. Inc., 703 A.2d 489 (Pa.Super.1997); Long v. Yingling, 700 A.2d 508 (Pa.Super.1997); O’Donnell v. Big Yank, 696 A.2d 846 (Pa.Super.1997).

1997This conclusion is further supported by the recent panel decision of this court in Long v. Yingling, 700 A.2d 508 (Pa.Super.1997), in which it was held that the spoliation doctrine does not apply where the defendants or agents thereof maintained exclusive possession of the allegedly defective product, which disappeared at some point in the litigation.

2021See Rodriguez, supra. As such, we cannot say that Appellants were denied a full and fair hearing on this basis.

2018To explain why spoliation standards do not apply, we begin by describing the spoliation doctrine: As we observed in Rodriguez v. Kravco Simon Co. , 111 A.3d 1191 (Pa. Super. 2015), penalties for spoliation of evidence have been applied since the early 17th century.

1998We have stated that "where a plaintiff brings an action claiming that [she or] he suffered injury as a result of a defective product, his [or her] failure to produce the product for inspection by the defense will render summary judgment appropriate." DeWeese v. Anchor Hocking, 427 Pa.Super. 47 , 628 A.2d 421, 423 (1993) (Olszewski, J.) (citing Roselli v. General Electric Co., 410 Pa.Super. 223 , 599 A.2d 685, 687-88 (1991)). *527 This principle has subsequently come to be known as the spoliation doctrine.

1998We have stated that "where a plaintiff brings an action claiming that [she or] he suffered injury as a result of a defective product, his [or her] failure to produce the product for inspection by the defense will render summary judgment appropriate." DeWeese v. Anchor Hocking, 427 Pa.Super. 47 , 628 A.2d 421, 423 (1993) (Olszewski, J.) (citing Roselli v. General Electric Co., 410 Pa.Super. 223 , 599 A.2d 685, 687-88 (1991)). *527 This principle has subsequently come to be known as the spoliation doctrine.

2022The doctrine of spoliation provides that “[w]hen a party to a suit has been charged with spoliating evidence in that suit (sometimes called ‘first-party spoliation’), we have allowed trial courts to exercise their discretion to impose a range of sanctions against the spoliator.” Pyeritz, 32 A.3d at 692 (citation omitted and emphasis added).

2018In Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa.Super. 2006), we held that to the extent that prior case law allowed presentation of new arguments in opposition to summary judgment, “it stands in derogation of Rules 1035.2 and 1035.3.” The non-moving party must raise all defenses or grounds for relief before the trial court as we are an error-correcting court and may not reverse where the trial court was not given an opportunity to consider the argument.

2001Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D.Pa. 1994). ¶ 18 In the instant case, the trial court conducted a spoliation analysis.

2001Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D.Pa.1994). ¶ 18 In the instant case, the trial court conducted a spoliation analysis.

1998See Black v. Black, 441 Pa.Super. 358 , 657 A.2d 964 (1995) (“An appellate court may affirm the actions of a trial court for reasons other than those proffered by the trial court hearing such matter”).

1998See Black v. Black, 441 Pa.Super. 358 , 657 A.2d 964 (1995) (“An appellate court may affirm the actions of a trial court for reasons other than those proffered by the trial court hearing such matter”).

1998We have stated that "where a plaintiff brings an action claiming that [she or] he suffered injury as a result of a defective product, his [or her] failure to produce the product for inspection by the defense will render summary judgment appropriate." DeWeese v. Anchor Hocking, 427 Pa.Super. 47 , 628 A.2d 421, 423 (1993) (Olszewski, J.) (citing Roselli v. General Electric Co., 410 Pa.Super. 223 , 599 A.2d 685, 687-88 (1991)). *527 This principle has subsequently come to be known as the spoliation doctrine.

1998We have stated that "where a plaintiff brings an action claiming that [she or] he suffered injury as a result of a defective product, his [or her] failure to produce the product for inspection by the defense will render summary judgment appropriate." DeWeese v. Anchor Hocking, 427 Pa.Super. 47 , 628 A.2d 421, 423 (1993) (Olszewski, J.) (citing Roselli v. General Electric Co., 410 Pa.Super. 223 , 599 A.2d 685, 687-88 (1991)). *527 This principle has subsequently come to be known as the spoliation doctrine.