V.E.B. v. A.N.W. ( 2018 )

J. S47018/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
V.E.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
A.N.W., : No. 126 EDA 2017
:
Appellant :
Appeal from the Order Dated November 30, 2016,
in the Court of Common Pleas of Montgomery County
Civil Division at No. 2009-23833
BEFORE: GANTMAN, P.J., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2018
A.N.W. appeals from the November 30, 2016 order entered in the
Court of Common Pleas of Montgomery County that awarded attorney’s fees
to appellee, V.E.B. (“Mother”), in the amount of $10,000 as a discovery
sanction against appellant in the underlying support action. We quash.
The trial court set forth the following:
This appeal is from an Order awarding
[Mother’s] attorney’s fees from [appellant] for
conduct involved in the resolution of issues arising
from support of the parties’ minor child. The parties
had entered into an agreed order of support in
February 26, 2015. In September of 2015,
[appellant] filed a Petition to Modify the agreed upon
order. On [sic] [Mother] filed a Motion to Dismiss
the Petition, because inter alia, relevant responses
to Requests for Production had not been provided by
[appellant] despite an order having been entered to
compel that discovery. [Appellant] and his counsel
failed to appear at a hearing on March 30, 2016
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before a discovery master to address [appellant’s]
failure to respond to the Requests for Production.
The Motion to Dismiss further stated that on June 7,
2016 the Honorable Stephen Barrett entered an
Order requiring [appellant] to comply with [Mother]’s
request for [p]roduction within twenty days and
noting that failure to do so could result in sanctions.
On July 14, 2016, a hearing was held on the
Exceptions and on the Motion to Dismiss the
Exceptions, which included a request by [Mother] for
attorney’s fees. The hearing was scheduled to begin
at 9:30 a.m. Counsel whose appearance had been
entered for [appellant], Mr. Abdul-Rahman, did not
attend this hearing. [Appellant] informed the court
that Mr. Abdul-Rahman would not be coming to the
hearing, but Attorney Chisholm would attend on his
behalf. Mr. Chisholm was not present at 9:30.
[Appellant] then informed the Court that
Mr. Chisholm was appearing at another hearing in
Montgomery County. The Court waited until 9:43,
and then opened court. Mr. Chisholm appeared at
10:00 a.m.
At this hearing, Mr. Machles, counsel for
[Mother], informed the court that a motion to modify
custody was pending, which could affect the support
ordered. Based upon this information, this court
granted the Motion to Dismiss the
Exceptions.[Footnote 1] At this hearing [Mother]’s
counsel also directed the court to the requested
attorneys’ fees, and submitted an affidavit in support
of these fees. In response, Attorney Chisholm noted
that “as related to the fees, Attorney Abdul-Rahman
is probably more in line to deal with the
appropriateness of what happened.” Attorney
Chisholm requested that Attorney Abdul-Rahman be
given a week to respond to the request. The Court
then told Attorney Chisholm that this response was
expected from Attorney Abdul-Rahman a week from
that day, and Attorney Chisholm responded, “[h]e
will send it to Your Honor . . . . Absolutely[.]” The
response to the request for attorney’s fees was not
timely received within one week.[Footnote 2] After
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more than five months of waiting passed, on
November 30, 2016, this Court granted [Mother]’s
request for attorney’s fees, awarding an amount
found reasonable, which was less than the amount
requested.
[Footnote 1] The Order entered
dismissing the exceptions provided that
the exceptions were dismissed without
prejudice for [sic] any party to seek relief
following a change in custody or any
other circumstances.
[Footnote 2] The undersigned had no
“ex parte” communication with
[Mother]’s counsel. After months passed
without the promised response from
Attorney Abdul-Rahman, Mr. Machles did
contact chambers to check on the status
of the motion. Court staff did eventually
contact Attorney Abdul-Rahman’s office
to check whether his response would be
sent, to no avail.
This award of attorney’s fees was appealed.
Pursuant to Pa.R.A.P. 1925(b), this Court ordered
[appellant] to file of record and to serve this Court a
Concise Statement of Errors Complained of On
Appeal no later than twenty one days after the date
the 1925(b) Order was docketed. [Appellant] timely
filed this statement and listed ten alleged errors.
Trial court opinion, 2/17/17 at 1-3 (record citations omitted; some brackets
in original).
The record reflects that on February 17, 2017, this court ordered
appellant to show cause within ten days of the date of that order as to the
appealability of the November 30, 2016 order. (Order of court, 2/17/17.)
In his timely response, appellant responded, in relevant part, as follows:
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As Senior Judge Tilson points out in his trial
court Opinion, the award of attorney’s fees was due
to the lower court’s finding [appellant] in contempt
of a discovery order. [See trial court opinion,
2/17/17], at 3, 5[]. Thus, in this case, the award of
attorney’s fees is final and appealable. See
Wolanin v. Hashagen, 829 A.2d 331, 332-33
(Pa.Super. 2003) (“Rather, we conclude that, for a
contempt order to be properly appealable, it is only
necessary that the order impose sanctions on the
alleged contemnor, and no further court order be
required before the sanctions take effect”). See
also Diamond v. Diamond, 792 A.2d 597, 600
(Pa.Super. 2002) (“a contempt order is appealable
because it is a final order imposing sanctions”).
Correspondence in response to 2/17/17 show-cause order, 2/27/17.
The record reflects that this court discharged the show-cause order on
February 28, 2017; referred appellant’s appeal to this merits panel; and
advised appellant that this panel may revisit the appealability issue and,
therefore, that appellant should be prepared to address the issue. (Order of
court, 2/28/17.) Because “[t]he appealability of an order goes directly to
the jurisdiction of the [c]ourt asked to review the order[,]” Takosky v.
Henning, 906 A.2d 1255, 1258 (Pa.Super. 2006), we must determine the
appealability of the November 30, 2016 order that appellant wishes to
appeal.
In his response to this court’s show-cause order, as well as in his brief
to this court, appellant maintains that the November 30, 2016 order
awarding Mother attorney’s fees is appealable because it imposed sanctions
following a contempt finding. (See correspondence in response to 2/17/17
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show-cause order, 2/27/17; see also appellant’s brief, passim.) Appellant
stated that the proceeding that resulted in the trial court’s November 30,
2016 order was a contempt proceeding when the record demonstrates that it
was actually a hearing on Mother’s exceptions to appellant’s petition to
modify support or limit support in the underlying child-support action during
which Mother requested attorney’s fees due to appellant’s failure to comply
with discovery requests. (See Mother’s “motion in limine to dismiss
petition to modify support or limit same with memorandum of law,” 7/11/16;
see also notes of testimony, 7/14/15, passim.) Additionally, we note that
the trial court’s opinion, with respect to its reasoning for entering the
November 30, 2016 order awarding attorney’s fees, as well as the record,
demonstrates that the trial court awarded Mother attorney’s fees as a
discovery sanction pursuant to Pa.R.Civ.P. 4019(a)(1)(viii). (See trial court
opinion, 2/17/17 at 5; see also Mother’s “motion in limine to dismiss
petition to modify support or limit same with memorandum of law,” 7/11/16;
notes of testimony, 7/14/15, passim.)
It is well settled that a contempt order that imposes sanctions
constitutes a final, appealable order. N.A.M. v. M.P.W., 168 A.3d 256, 260
(Pa.Super. 2017) (citation omitted). It is also well settled that an order
imposing discovery sanctions is not appealable until final judgment in the
underlying action. West v. Andersen, 626 A.2d 606, 608 (Pa.Super.
1993). Here, we have reviewed the voluminous certified record in this case,
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and again, it reveals that the trial court entered the November 30, 2016
order awarding attorney’s fees as a discovery sanction against appellant.
Additionally, nothing in the certified record before us indicates that the trial
court entered final judgment in the underlying support action prior to entry
of that order. Therefore, because no final judgment in the underlying
support action had been entered prior to the entry of the November 30,
2016 order that awarded attorney’s fees to Mother as a discovery sanction
against appellant, it is not a final, appealable order. See id.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/18
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