Chesapeake Design v. Wieder, C. ( 2015 )

J-A31043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHESAPEAKE DESIGN BUILD, LLC IN THE SUPERIOR COURT OF
D/B/A/ BAYWIND HOMES PENNSYLVANIA
Appellant
v.
CHERYL A. WIEDER
Appellee No. 1750 MDA 2013
Appeal from the Order entered August 29, 2013
In the Court of Common Pleas of Dauphin County
Civil Division at No: 2009-CV-10112
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 13, 2015
Appellant, Chesapeake Design Build, LLC, d/b/a Baywind Homes,
appeals from the August 29, 2013 order finding it in civil contempt as a
discovery sanction. Orders finding a litigant in civil contempt as a discovery
sanction are not appealable. Therefore, we quash this appeal for lack of
jurisdiction.
On April 26, 2013, the trial court found Appellant in civil contempt for
failing to provide adequate responses to discovery requests. On August 29,
2013, after finding that Appellant failed to purge itself, the trial court
assessed $10,121.04 in attorneys’ fees as a discovery sanction. Appellant
appealed to this Court, and Appellee, Cheryl A. Wieder, moved to quash the
appeal. The motions panel denied the motion without prejudice to renew it
before the merits panel, which Appellee now has done.
J-A31043-14
Orders imposing sanctions for discovery violations generally are
interlocutory and not appealable. See Stahl v. Redcay, 897 A.2d 478, 487
& n.2 (Pa. Super. 2006); Bruno v. Elitzky, 526 A.2d 781, 782-83 (Pa.
1987).
The general rule in this Commonwealth is that a “contempt order
imposing sanctions is final and appealable when entered . . . .”
Conversely, “until sanctions or imprisonment is imposed, an
order declaring a party in contempt is interlocutory.” However,
when sanctions are imposed for failure to comply with a
discovery order the order imposing sanctions is not reviewable
until final disposition of the underlying litigation. This is so
even though discovery sanctions are frequently imposed
following a citation for civil contempt in an attempt to
coerce compliance with the discovery order.
Fox v. Gabler, 547 A.2d 399, 404 (Pa. Super. 1988) (emphasis added);
see also Diamond v. Diamond, 715 A.2d 1190, 1193 (Pa. Super. 1998)
(noting that orders imposing discovery sanctions are not appealable until
entry of final judgment “even where the party refusing to provide discovery
is held in civil contempt in an effort to coerce compliance with a discovery
order”) (emphasis in original).1 This Court cannot reach the merits of an
appeal taken from a non-appealable order. In re Bridgeport Fire Litig.,
51 A.3d 224, 229 (Pa. Super. 2012).
In response, Appellant cites several cases concerning appeals from
civil contempt citations. Appellant’s Brief at 11 (citing Rhoades v. Pryce,
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1
Orders imposing sanctions for indirect criminal contempt are appealable
as collateral orders under Pa.R.A.P. 313. Diamond, 715 A.2d at 1194-95.
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874 A.2d 148 (Pa. Super. 2005) (en banc); Diamond v. Diamond, 792
A.2d 597 (Pa. Super. 2002); Lachat v. Hinchliffe, 769 A.2d 481 (Pa.
Super. 2001)). None of those cases, however, involved contempt entered as
a discovery sanction against a litigant under Pa.R.C.P. No. 4019 (providing
for discovery sanctions). See Rhoades, 874 A.2d at 149 (appellant found
in contempt of equitable distribution order entered in connection with final
divorce decree); Diamond, 792 A.2d at 599 (litigant’s attorney found in
contempt of order directing her to pay for accidental destruction of
documents); Lachat, 769 A.2d at 484-85 (litigants found in contempt of
final decree settling an equity action). We also note that our decision in
Markey v. Marino, 521 A.2d 942 (Pa. Super. 1987), is distinguishable. In
Markey, we addressed the merits of sanctions orders entered against the
litigants’ former attorney. Id. at 944-45. Moreover, Markey predates our
Supreme Court’s decision in Bruno, 526 A.2d at 782-83 (holding that
discovery sanctions orders are interlocutory), as well as more recent
pronouncements of this Court. See, e.g., Diamond, 715 A.2d at 1193;
Fox, 547 A.2d at 404.
In this case, the order appealed from awarded Appellee attorneys’ fees
as a discovery sanction under Rule 4019. The trial court’s civil contempt
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finding does not transform the order into a final order.2 Therefore, the order
is non-appealable.
Application to quash appeal granted. Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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2
In its docketing statement, Appellant contended the order was collateral. A
collateral order is (1) separable from the main cause of action; (2) where
the right involved is too important to be denied review; and (3) where
delaying review until final judgment will cause the claim to be irreparably
lost. See Pa.R.A.P. 313. Appellant has not stated how the order meets
these three requirements.
We would note, however, that Appellant’s right to challenge the contempt
finding as a discovery sanction would not be lost if timely and properly
appealed after a final order is entered in this case.
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