October 13, 1999
Appeal of
J. LEONARD SPODEK
NATIONWIDE POSTAL MANAGEMENT
LEASE AGREEMENT
(Du Bois, PA Finance Stn.)
PSBCA No. 4232
(Montoursville, PA Main Post Office)
PSBCA Nos. 4244 & 4339
(San Antonio, TX – Wainwright Station)
PSBCA Nos. 4273 & 4329
APPEARANCE FOR APPELLANT:
J. Leonard Spodek
APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.
OPINION OF THE BOARD ON MOTION TO DISMISS
Respondent has filed a motion to dismiss these appeals for Appellant's failure to follow the Board's orders directing that Appellant's representative, J. Leonard Spodek, attend a deposition on June 16, 1999. Respondent also requests reimbursement for costs it incurred in connection with the attempted deposition. Appellant has filed an opposition to the motion.
FINDINGS OF FACT
For the purposes of deciding Respondent's motion, we make the following findings of fact:
1. By Orders dated May 19, and June 11, 1999, the Board directed Appellant's representative, J. Leonard Spodek, to testify at a deposition to be held beginning at 9:00 a.m. on June 16, 1999, at a location across the street from Mr. Spodek's place of business, and to remain there during specified hours or until excused by Respondent's counsel. Appellant received the Board's June 11, 1999 Order on June 14, 1999. (Board Orders).
2. Approximately one week before the scheduled deposition, Mr. Spodek informed Respondent's counsel during a telephone conversation that he (Mr. Spodek) did not plan to testify at the deposition. Respondent's counsel suggested to Mr. Spodek that he contact the Board to request a change in the deposition Orders, if he had good cause for doing so. Mr. Spodek never requested such a change. (Respondent's motion to dismiss; Appellant's response).[1]
3. Respondent's counsel was present at 9:00 a.m. at the location designated for the deposition. After approximately 20 minutes, counsel telephoned Mr. Spodek's place of business and spoke to Mr. Spodek's son, reminding him of Mr. Spodek's deposition. Approximately 15 minutes later, Mr. Spodek arrived at the site of the deposition, but declined to testify, citing medication that he was taking and asserting that he was in a lot of pain because of an injury to his foot.[2] Mr. Spodek then left the deposition and returned to his place of business. (Id.).
DECISION
Under other circumstances we might consider dismissal to be an appropriate sanction for Appellant's obvious disregard of the Board's Orders that Mr. Spodek testify at the deposition. However, we decline to dismiss these appeals as requested by Respondent. Beginning in early June 1999, Mr. Spodek informed the Board of his medical condition (in connection with two other appeals) and ultimately (in mid-July) was able to provide sufficient evidence to persuade the Board that his condition warranted a sixty-day suspension of nearly all of the appeals being prosecuted by him. While not excusing Appellant's failure to request a continuance in the date for the deposition in these appeals, we are not persuaded that dismissal under these circumstances is an appropriate sanction. Accordingly, Respondent's motion to dismiss these appeals is denied.
However, Respondent's request that Appellant reimburse Respondent for costs incurred in connection with the attempted deposition is granted. Absent a request for, and the granting of, a continuance -- as had been suggested by Respondent's counsel -- Respondent's counsel was fully justified in traveling to the deposition site, notwithstanding Mr. Spodek's statement that he would not attend the deposition.[3] Accordingly, Appellant is directed to reimburse Respondent, within 30 days of receipt of this Opinion, for the costs incurred in connection with the attempted deposition. Recoverable costs include travel and lodging costs, the cost of the court reporter, and the salary for Respondent's counsel. Respondent may not, however, recover process server fees.
David I. Brochstein
Administrative Judge
Vice Chairman
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
Norman D. Menegat
Administrative Judge
Board Member
[1] Appellant filed a response to the motion in which Mr. Spodek took issue with several factual statements made by Respondent's counsel. To the extent relevant and not opposed by Appellant, we have accepted Respondent's statement of the facts.
[2] Respondent states that Mr. Spodek spoke on the record about his reasons for leaving, but Respondent did not provide a transcript of the proceedings.
[3] There is not even a suggestion that Mr. Spodek was incapable of requesting a continuance.