Delbianco, K. v. Garbowsky, E. ( 2022 )

J-S11004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KAREN J. DELBIANCO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EUGENE G. GARBOWSKY :
:
Appellant : No. 585 WDA 2021
Appeal from the Order Dated April 9, 2021
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 16-009506-005
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: May 3, 2022
Eugene Garbowsky (“Father”) appeals from the Allegheny County Court
of Common Pleas’ order dismissing his petition for modification of child support
as a result of his failure to comply with discovery orders. We affirm.
Father and Karen Delbianco (“Mother”) entered into a divorce
settlement agreement in 2017. Under that agreement, Father is to pay $1400
in child support per month for his and Mother’s child, S.G. On February 11,
2020, Father filed a petition to modify the amount of child support, claiming
an alleged reduction in income from a karate studio he owned and operated.
A support modification conference was held on July 13, 2020. Father
failed to produce documentation substantiating his allegation of a reduction in
income, and the case was declared complex. The court ordered Father to
schedule a complex support hearing within ten days, or risk dismissal of his
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modification petition. While Father did not timely comply with that order, he
did eventually comply and a complex support hearing was scheduled for
November 18, 2020.
Mother served Father with discovery requests that were due by October
29, 2020. Father failed to provide the requested discovery, and accordingly,
the court continued the hearing until April 12, 2021. Father did eventually
provide answers to Mother’s first set of interrogatories and requests for
production of documents but “those [a]nswers were wholly insufficient.” Trial
Court Opinion, 9/16/21, at 2.
Mother filed a motion to compel discovery, averring that Father’s
answers to the first set of interrogatories were “beyond grossly deficient” and
that Father had failed to produce documents outlined in the discovery chart
which itemized Mother’s discovery requests. In an order dated March 8, 2021,
the trial court granted Mother’s motion.1
The March 8, 2021 order specifically directed Father to provide full and
complete responses to Mother’s discovery requests, including “all missing
items on the discovery chart,” by March 15, 2021. Trial Court Order, 3/8/21,
single page. The order also explicitly provided Father with notice that his
____________________________________________
1Neither Mother’s motion to compel discovery nor the trial court’s order dated
March 8, 2021 appear to have been included in the certified record sent to this
Court. However, Father provided both the motion to compel as well as the
order dated March 8, 2021 in the reproduced record sent to this Court and
there is no dispute as to their content.
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failure to strictly comply with the order could result in dismissal of his
modification petition, retroactive to the date of its filing, as well as the award
of counsel fees to Mother in the amount of $750. The order also contained a
paragraph acknowledging Father’s averment that he had supplemented his
answers and provided documents to Mother as of March 5, 2021. However,
the court found Father had failed to “itemize his response to address the
individual deficiencies alleged in [Mother]’s motion to compel.” Id.
Following the issuance of this order, Father still did not provide full and
complete discovery. Although he filed an amended answer to Mother’s first set
of interrogatories and first request for production of documents, that
amendment continued to object to a large portion of Mother’s discovery
requests. Mother therefore filed a second motion to compel discovery. Father
filed a reply to Mother’s motion, in which he again averred that he had
provided responses and documents to Mother via email on March 3, 2021, and
then via mail on March 5, 2021.2
In response to Mother’s motion, the court entered an order dated April
9, 2021. In that order, the court specifically found Father had failed to provide
full and complete discovery as directed by the court’s order dated March 8,
____________________________________________
2Again, neither Mother’s second motion to compel discovery nor Father’s reply
to that motion appear to have been included in the certified record sent to this
Court. However, Father provided both the second motion to compel discovery
as well as his reply to that motion in the reproduced record sent to this Court
and there is no dispute as to their content.
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2021. The court therefore dismissed Father’s petition for modification of
support, retroactive to its filing, canceled the complex support hearing, and
ordered Father to pay $750 for Mother’s counsel fees.
Father filed a notice of appeal. In his court-directed 1925(b) statement
of errors complained of on appeal, Father raised 11 errors he alleged the court
made in issuing its April 9, 2021 order dismissing his petition for modification
and doing so without holding a hearing. In its 1925(a) opinion, the trial court
called those 11 claims “specious.” Trial Court Opinion, 9/16/21, at 2. It then
concluded that it had not abused its discretion in dismissing Father’s
modification petition for his noncompliance with the discovery requests and
orders. In support, the court explained Father had shown a “lack of
responsiveness throughout this litigation” and that any discovery responses
Father had provided were wholly insufficient. Id. at 2. For example, the court
noted that in the purported “Income Statement” portion of Father’s pretrial
statement, the only figure Father supplied was “1,000.” See id.
The court also pointed out that its March 8, 2021 order compelling
discovery explicitly warned Father that if he did not provide full and complete
discovery, as ordered, it could result in dismissal of his petition for
modification. The court also defended its decision to dismiss the petition
without first holding the complex support hearing:
Father failed abjectly, for over a full year, to provide any financial
information upon which Mother could reasonably assess or rebut
Father’s claims of reduced income. Having failed to comply with
the court’s Orders compelling complete interrogatory answers,
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Father presumably intended to either ‘wing it’ at the Hearing with
respect to satisfying his burden of proof, or intended to ‘spring’
upon both [Mother] and the Hearing Master some hitherto
undisclosed form of documentary evidence substantiating his
claims. This would have been extremely prejudicial to Mother and
to the Hearing Master, and a waste of the administrative resources
of this court. By repeatedly failing to comply in any meaningful
way with pretrial discovery requests and Orders, Father’s own
inactivity and noncompliance obviated the need for a hearing.
Id. at 3.
In his brief to this Court, Father once again lists the same 11 alleged
errors with the April 9, 2021 order that he raised in his 1925(b) statement.
“For judicial economy purposes,” he then divides those 11 issues into three
categories which he identifies as: 1) issues “related to the trial court’s abuse
of discretion on matters of discovery,” 2) issues “related to “the trial court’s
judgment being exercised as manifestly unreasonable,” and 3) the “trial
court’s lack of an evidentiary hearing.” Appellant’s Brief at 11.
In his first category of issues, Father essentially argues the trial court
erred by dismissing his modification petition as a sanction for his discovery
violations. This argument has no merit.
The decision of whether to sanction a party for the failure to comply with
a discovery order, and the severity of that sanction, are both subject to the
discretion of the trial court. See Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa.
Super. 2005). This Court will only disturb such a sanction where it is shown
that the trial court abused its discretion. See id. While a trial court may order
the dismissal of an action as a consequence for discovery violations, it may
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only do so where the violations of the discovery rules are willful and the
opposing party has been prejudiced. See Rohm and Haas Co. v. Lin, 992
A.2d 132, 142 (Pa. Super. 2010).
Here, Father asserts that dismissal of his modification petition was
improper because Mother was not prejudiced by any discovery violations and
in fact, Father had not committed any discovery violations. Father avers he
provided the requested discovery documents when he supplemented his
answers and forwarded a list of documents to Mother’s counsel a few days
prior to the court’s entry of its motion-to-compel order dated March 8, 2021.
The trial court, however, soundly rejected this argument:
As the [court] noted in [its March 8, 2021] Order, Father’s
assertions that, as of March 5, 2021, he had ‘supplemented’ his
answers and that Mother was in possession of all documents
requested were not accompanied by any itemized response to the
deficiencies noted by Mother’s counsel. No such itemized full and
complete response has been provided to date.
Trial Court Opinion, 9/16/21, at 3.
Father does not dispute the trial court’s finding or allege he provided an
itemized response. Instead, in support of his argument, Father points to a
single page in the reproduced record. That page is an email Father’s counsel
sent to Mother’s counsel on March 3, 2021, which lists certain documents in
the subject line which are said to be attached to the email. Father does not
elaborate on what those documents were, or how they related to the discovery
chart, much less how they fulfilled or completed his discovery obligations. As
such, Father has not shown the trial court abused its discretion by finding he
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had repeatedly failed to give full and complete discovery responses, and that
his modification petition should be dismissed on that basis.
In his second category of issues, to which Father assigns three of his
claims, Father asserts the trial court’s ruling was manifestly unreasonable. In
support, he offers the following:
[T]he judgment exercised was manifestly unreasonable, as the
Trial court ordered the Motion to Modify terminated retroactive to
February 12, 2020, rather than November 12, 2020. [Father]
argues that [Mother] was provided an opportunity to cross
examine Father on the record before [the special master]. All
parties had full knowledge of all income on that date during the
hearing, which was conducted on the record. Consequently,
[Mother] cannot argue that she was prejudiced.
Appellant’s Brief at 16.
As Father’s argument is not only unclear but woefully undeveloped, we
find that the three claims enveloped in Father’s second category of alleged
errors are waived. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (stating that “where an appellate brief fails to provide any discussion of
a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived). Even if we
were to overlook waiver, we see no reason to conclude, under the
circumstances present here, that the court’s ruling was manifestly
unreasonable.
In his third and final category, Father includes several claims challenging
the court’s failure to hold a hearing prior to dismissing his modification petition
and imposing attorney fees. However, in his argument section, Father only
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discusses attorney fees. In doing so, he cites generally to Rules of Civil
Procedure that do not appear to apply to this case. He then claims the trial
court erred in awarding counsel fees as there is no record to support such an
award. However, he then states that where “the record is officially developed,
the Appellate Court may substitute its judgment for the trial court and decide
the case on the merits,” and urges this Court to do so here. Appellant’s Brief
at 17-18 (citation omitted). All in all, Father’s argument is misaligned with his
claims, underdeveloped and internally inconsistent. We therefore find that the
claims comprising his third category are waived. See Johnson, 985 A.2d at
924. Even if the claims were not waived, we see no abuse of discretion in the
trial court’s decision not to hold a hearing, as set forth in the court’s
explanation above. See also Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super.
1998) (stating that “neither notice nor a hearing is a necessary prerequisite
to the imposition of sanctions” for discovery violations). No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2022
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