Bane, A. v. Bane, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMBER BANE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANDREA BANE AND JONATHAN : No. 1043 WDA 2021
JULIAN :
Appeal from the Order Entered August 20, 2021
In the Court of Common Pleas of Greene County Civil Division at No(s):
A.D. No. 120 of 2017
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY OLSON, J.: FILED: May 3, 2022
Appellant, Amber Bane (hereinafter “Maternal Grandmother”), appeals
from the order entered on August 20, 2021. We quash this appeal.
On August 6, 2021, Jonathan Julian (hereinafter “Father”) filed a petition
for contempt against Maternal Grandmother. Father claimed that, on July 9
and 28, 2021, the trial court entered orders relating to a visit between his
minor child, J.B. (hereinafter “Child”),1 and Maternal Grandmother. The
orders directed that Maternal Grandmother return Child to Father at noon on
July 31, 2021. See Father’s Petition for Contempt, 8/6/21, at 2.
According to Father’s petition, Maternal Grandmother violated the
orders when she refused to return Child at the court-ordered time. Father
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1 Child was born in September 2016.
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requested that the trial court hold Maternal Grandmother in contempt of court
for violating the orders and order that she reimburse Father for the
“unnecessary out of pocket costs” Father incurred as a result of the missed
exchange. Id. at 3. The trial court scheduled a hearing on Father’s contempt
petition for August 18, 2021. Trial Court Order, 8/10/21, at 1.
There is no record that an evidentiary hearing occurred on August 18,
2021. Indeed, Maternal Grandmother declares that, in place of a hearing,
“[t]he trial court had a discussion with [Maternal Grandmother].” Maternal
Grandmother’s Brief at 7. At the conclusion of the discussion, the trial court
entered the following order:
AND NOW, this 18th day of August, 2021, this matter comes
before the [trial court] on petition for contempt. The
contempt centers around the failure of [Maternal
Grandmother] to return [Child] on the date of July 31, 2021
as directed by [the trial court]. . . . We find [Maternal
Grandmother] in contempt for failing to abide by that order,
and sanction as follows:
1. [Maternal Grandmother] will be responsible for all
attorney’s fees generated by [Father’s] need for
representation regarding both the motion for special relief
presented on July 28, 2021, and the fees related to this
petition for contempt and motion for special relief.
2. [Maternal Grandmother] will also be required to reimburse
the travel costs for the parental grandmother’s travel from
the State of Georgia to the exchange location in North
Carolina on July 31, 2021.
3. [Maternal Grandmother] shall also be responsible for any
travel expenses incurred related to [Child’s] return to Hawaii
which was anticipated to occur after the July 31, 2021
exchange but did not due to [Maternal Grandmother] failing
to return [Child].
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4. All of these costs should be requested and documented to
the [trial court] with copies provided to counsel within 15
days of today’s date.
5. If counsel wishes the [trial court] to make a further review
beyond the review the [trial court] has already indicated it
will make, or they wish to present argument relating to the
costs, upon request a hearing will be scheduled. . . .
Trial Court Order, 8/20/21, at 1-2.
Maternal Grandmother immediately filed a notice of appeal from the trial
court’s August 20, 2021 order. On November 12, 2021, we issued a rule upon
Maternal Grandmother to show cause as to why this appeal should not be
quashed, as it was taken from a non-appealable, interlocutory order. See
Order, 11/12/21, at 1. Maternal Grandmother responded to the rule to show
cause and claimed that we have jurisdiction over this appeal, as the August
20, 2021 order “constitute[s] a final order.” Maternal Grandmother’s
Response to Rule to Show Cause, 11/19/21, at 3.
Since Maternal Grandmother responded to the rule to show cause order,
we discharged the order. Order, 12/8/21, at 1. However, this Court’s
discharge order notified Maternal Grandmother that “this is not a final
determination as to the propriety of the appeal” and that the jurisdictional
issue “may be revisited by the panel assigned to decide the merits of [the]
case.” Id. We now quash this appeal.
Although no party raises the issue of jurisdiction, “we may nevertheless
raise the issue [] sua sponte.” Commonwealth v. Blystone, 119 A.3d 306,
311 (Pa. 2015) (footnote and citation omitted). “As a general rule, this Court
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has jurisdiction only over appeals taken from final orders.” Angelichio v.
Myers, 110 A.3d 1046, 1048 (Pa. Super. 2015) (citation omitted). “An order
of contempt is final and appealable when the order contains a present finding
of contempt and imposes sanctions.” In re K.K., 957 A.2d 298, 303 (Pa.
Super. 2008); Takosky v. Henning, 906 A.2d 1255, 1258 (Pa. Super. 2006)
(“[i]t is well settled that unless sanctions or imprisonment is imposed, an
[o]rder declaring a party to be in contempt is held to be interlocutory and not
appealable”).
In this case, the trial court’s August 20, 2021 order “contain[ed] a
present finding of contempt.” See Trial Court Order, 8/20/21, at 1. However,
the August 20, 2021 order did not “impose[] sanctions” against Maternal
Grandmother, as the amount in question was undetermined. To be sure, the
subject order contemplated further proceedings where the trial court would
evaluate, calculate, and impose monetary sanctions against Maternal
Grandmother. See id. at ¶¶ 1-5. In following, since the August 20, 2021
order did not “impose[] sanctions” against Maternal Grandmother, the order
is not final and appealable.2 We must, therefore, quash this appeal.
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2 While interlocutory orders are appealable in certain circumstances, none of
those circumstances apply to the case at bar. Our Supreme Court has
explained:
in addition to an appeal from final orders of the Court of Common
Pleas, our rules provide the Superior Court with jurisdiction in the
following situations: interlocutory appeals that may be taken as of
right, Pa.R.A.P. 311; interlocutory appeals that may be taken by
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Appeal quashed.
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permission, Pa.R.A.P. [312]; appeals that may be taken from a
collateral order, Pa.R.A.P. 313; and appeals that may be taken
from certain distribution orders by the Orphans' Court Division,
Pa.R.A.P. 342.
Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (2012) (quotation marks
omitted).
Here, the challenged order is not defined as appealable as of right (per
Pa.R.A.P. 311), Maternal Grandmother did not ask for or receive permission
to appeal the interlocutory order (per Pa.R.A.P. 312), the appeal is not from
a distribution order (per Pa.R.A.P. 342), and Maternal Grandmother has not
provided this Court with any argument as to whether – or how – the order
could satisfy the collateral order doctrine (per Pa.R.A.P. 313).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2022
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