Brizzi, K. v. Haines, Jr., R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KAREN L. BRIZZI, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RICHARD J. HAINES, JR.,
Appellee No. 306 MDA 2014
Appeal from the Order Entered February 6, 2014
in the Court of Common Pleas of Lancaster County
Civil Division at No.: CI-12-11384
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 18, 2014
Appellant, Karen L. Brizzi (Wife), appeals pro se from the February 6,
2014 order finding her in contempt of a July 16, 2013 order for not paying
property taxes on the residence located in Denver, Pennsylvania. We affirm.
The trial court summarized the procedural history of this case in
pertinent part as follows:
On August 13, 2012, [Wife] filed a complaint in divorce.
On March 1, 2013, [Richard J. Haines, Jr. (Husband)] filed a
petition for enforcement of pre-nuptial agreement and eviction of
[Wife] from [Husband’s] home. . . . [A] hearing took place on
July 15, 2013, and the [c]ourt entered an order on July 16, 2013
denying [Husband’s] petition.
On September 6, 2013, [Husband] filed a petition for
contempt and enforcement of the July 16, 2013 order. . . . After
[a] hearing, the [c]ourt issued an order on September 25, 2013
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*
Retired Senior Judge assigned to the Superior Court.
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granting [Husband’s] petition. On September 27, 2013, the
[c]ourt denied the parties divorce without prejudice due to lack
of proper service. On November 1, 2013, the parties divorce
was granted.
On December 5, 2013, [Husband] filed a second petition
for contempt and enforcement of the [c]ourt’s July 16, 2013 and
September 25, 2013 orders. . . . [T]he [c]ourt scheduled a
hearing for January 27, 2014. On January 27, 2014, attorney
for [Wife] withdrew his appearance and [Wife] entered her
appearance to represent herself pro se. The hearing was
attended by [Wife] without counsel and [Husband’s] counsel and
[Husband] via telephone.
(Trial Court Opinion, 4/22/14, at 2).
On February 6, 2014, the court granted in part and denied in part
Husband’s December 5, 2013 petition for contempt. Wife timely appealed
on February 19, 2014.1
Wife raises the following question for our review:
How can [Wife] be held in contempt where the court has failed
to meet the [s]tandard of [c]ontempt, by failing to make [its]
requirements clear or making them a requirement in the original
order, or providing that [Wife] did not show the intention to
comply[?]
(Wife’s Brief, at 5) (emphasis omitted).
Preliminarily, we note that, while Wife presents a single issue in her
statement of the question involved, the argument section of her brief
essentially argues that the trial court erred in three ways: (1) permitting
the January 27, 2014 hearing to proceed when Husband was not physically
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1
Pursuant to the trial court’s March 3, 2014 order, Wife filed a Rule 1925(b)
statement on March 17, 2014. The court entered its Rule 1925(a) opinion
on April 22, 2014. See Pa.R.A.P. 1925.
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present; (2) entering the February 6, 2014 order finding Wife in contempt of
the July 16, 2013 order for failing to pay property taxes when the order did
not direct her to pay the taxes; and (3) entering the September 25, 2013
order finding Wife in contempt of the July 16, 2013 order for not allowing
Husband access to the garage to remove his personal belongings. (See
Wife’s Brief, at 5, 10-16).
Wife’s brief fails to comply with Pennsylvania Rules of Appellate
Procedure 2116(a) and 2119(a). Rule 2116(a) states in relevant part: “ . . .
No question will be considered unless it is stated in the statements of
questions involved or is fairly suggested thereby. Each question shall be
followed by an answer stating simply whether the court or government unit
agreed, disagreed, did not answer, or did not address the question. . . .”
Pa.R.A.P. 2116(a). Rule 2119(a) states: “The argument shall be divided
into as many parts as there are questions to be argued; and shall have at
the head of each part—in distinctive type or in type distinctively displayed—
the particular point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a).
However, because we are able to discern the crux of Wife’s argument
on appeal, we decline to find waiver. See Pa.R.A.P. 2101 (authorizing
quashal or dismissal where substantial briefing defects); see also
Commonwealth v. Levy, 83 A.2d 457, 461 n.2 (Pa. Super. 2013)
(declining to find waiver where omissions do not impede review). Therefore,
because Wife’s issues are discernible from her argument, and the trial court
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addressed all three of them, we will address Wife’s claims on appeal as three
issues.
“Until sanctions are actually imposed by the trial court, an order
declaring a party to be in contempt is interlocutory and not appealable.”
Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001) (citation
omitted).
Here, the court’s September 25, 2013 order includes a directive to
Wife to “reimburse Husband $350.00 for costs incurred from the August 10,
2013 attempt to retrieve personal property . . . [and] $500.00 of Husband’s
reasonable attorney fees . . . .” (Order, 9/25/13, at 2). Similarly, the
court’s February 6, 2014 order directs Wife to “reimburse Husband $360.00
for a portion of Husband’s reasonable attorney fees . . . .” (Order, 2/6/14,
at 3).
Therefore, we conclude that the terms of the court’s September 25,
2013 and February 6, 2014 orders explicitly impose sanctions and are final
and appealable orders. See Lachat, supra at 488 (concluding that
contempt order that includes directive to make remedial payment for costs
and/or attorney fees is final and appealable order for Pa.R.A.P. 341
purposes).
Our standard of review is well-settled: “[w]hen considering an appeal
from an [o]rder holding a party in contempt for failure to comply with a
court [o]rder, our scope of review is narrow: we will reverse only upon a
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showing the court abused its discretion.” Habjan v. Habjan, 73 A.3d 630,
637 (Pa. Super. 2013) (citations and quotation marks omitted).
Further, we note this Court “must place great reliance upon the
discretion of the trial judge.” Id. (citations omitted).
Wife first argues that the trial court erred in permitting the January 27,
2014 hearing on Husband’s petition for contempt to proceed where he was
present by telephone. (See Wife’s Brief, at 10). This issue is waived.
“Issues not included in the [Rule 1925(b) statement] and/or not raised
in accordance with the provisions of this paragraph (b)(4) are waived.”
Pa.R.A.P. 1925 (b)(4)(vii).
Here, Wife’s claim that it was improper to proceed with the hearing in
the absence of Husband’s physical presence is not included in her Rule
1925(b) statement. (See Wife’s Concise Statement of Errors, 3/17/14, at
1..2-2..2 (sic)). Accordingly, Wife’s first issue is waived. See Pa.R.A.P.
1925 (b)(4)(vii).
In her second issue, wife argues that the trial court erred in entering
its February 6, 2014 order finding her in contempt of its July 16, 2013 order
for failing to pay property taxes on the residence located in Denver,
Pennsylvania. (See Wife’s Brief, at 10). We disagree.
[I]n proceedings for civil contempt of court, the general rule is
that the burden of proof rests with the complaining party to
demonstrate, by [a] preponderance of the evidence that the
defendant is in noncompliance with a court order. However, a
mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil contempt. . . .
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To sustain a finding of civil contempt, the complainant
must prove certain distinct elements: (1) that the contemnor
had notice of the specific order or decree which he is alleged to
have disobeyed; (2) that the act constituting the contemnor’s
violation was volitional; and (3) that the contemnor acted with
wrongful intent.
Habjan, supra at 637 (citation omitted).
Here, Wife claims that the July 16, 2013 order does not direct her to
pay the property taxes and argues that she has no interest in the property.
(See Wife’s Brief, at 10; see also N.T. Hearing, 1/27/14, at 21-22).
However, the record reflects that Wife admitted to not paying the taxes,
(see N.T. Hearing, 1/27/14, at 21), even though the July 16, 2013 order
states that “Wife through counsel agrees to pay the taxes on the property.”
(Order, 7/16/13, at 2 n.1). Moreover, the court found that:
[b]ecause [Wife] agreed to pay the property taxes of the
[p]roperty and memorialized her agreement on the record and
that agreement was incorporated into the [c]ourt’s July 16, 2013
[o]rder in footnote one, [Wife] is in contempt of the July 16,
2013 [o]rder. . . . Furthermore, [Wife] did not provide a reason
as to why she could not pay the property taxes on the
[p]roperty[.] . . .
(Trial Ct. Op., at 8-9).
Therefore, we conclude that the court properly entered its February 6,
2014 order finding Wife in contempt of the July 16, 2013 order for failing to
pay the property taxes as expressly agreed through counsel. See Habjan,
supra at 637. Accordingly, Wife’s second issue does not merit relief.
In her final issue, Wife argues that the trial court erred in entering its
September 25, 2013 order finding her in contempt of its July 16, 2013 order
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for not allowing Husband access to the garage to remove his personal
belongings. (See Wife’s Brief, at 10). The court lacks jurisdiction over this
issue.
In the notice of appeal, Wife references only the February 6, 2014
order, not the September 25, 2013 order. (See Wife’s Notice of Appeal,
2/19/14, at unnumbered page 1). Therefore, Wife has not appealed the
September 25, 2013 order and it is not properly before us.
The court in its February 6, 2014 order stated “that Wife is not in
contempt of the September 25, 2013 [o]rder” and issued new deadlines for
the removal of Husband’s personal property. (Order 2/06/14, at 2). Thus,
the portion of the February 6, 2014 order that references the removal of
Husband’s personal property is interlocutory because the court did not find
Wife in contempt or impose sanctions on Wife. See Lachat, supra at 488.
However, Wife argues that she is appealing the September 25, 2013
order finding her in contempt of the July 16, 2013 order for not allowing
Husband access to the garage to remove his personal belongings. (See
Wife’s Brief, at 2, 6, 8, 10-16).
Moreover, an appeal “[e]xcept as otherwise prescribed by this rule . . .
shall be filed within 30 days after the entry of the order from which the
appeal is taken.” Pa.R.A.P. 903(a). This thirty day appeal period is to be
strictly construed and “[t]his Court has no jurisdiction to excuse a failure to
file a timely notice.” In re Greist, 636 A.2d 193, 195 (Pa. Super. 1994)
(citations omitted).
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Here, Wife filed her notice of appeal on February 19, 2014,
accordingly, even if the notice named the September 25, 2013 order, it
would have been untimely. Therefore, we would lack jurisdiction for this
reason as well.
Wife admits that her appeal is untimely, but baldly states that:
My original appeal was filed on Tuesday October 15th 2013,
within the 30 day period, and was receipted as such, along with
the receipt for the money order to pay for the appeal however
the documents were lost by the prothonotary’s office, which they
freely admit, but by the time this was brought to my attention
on Wednesday October 30th the 30 day appeal window had
closed[.]
(Wife’s Brief, at 6). However, Wife has not provided any documentation to
prove this claim; thus, this bald statement does not excuse her untimely
notice of appeal. See In re Greist, supra at 195.
For all of the above reasons and based on our review of the record, we
conclude that Wife has not properly appealed the September 25, 2013 order.
See Pa.R.A.P. 903(a); see also In re Greist, supra at 195. Accordingly,
Wife’s third issue is not properly before this court and we lack jurisdiction to
consider the merits.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 11/18/2014
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