Farrell, T. v. Farrell, A.

J-S23027-19
2019 Pa. Super. 267
THOMAS P. FARRELL, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMY FARRELL :
:
Appellant : No. 1424 WDA 2018
Appeal from the Order Entered September 13, 2018
In the Court of Common Pleas of Clearfield County Civil Division at
No(s): No. 2015-1381-CD
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*
OPINION BY NICHOLS, J.: FILED SEPTEMBER 3, 2019
Appellant LaVieta Lerch, Esq., counsel for Amy Farrell (Ms. Farrell),
appeals from the order of contempt directing Attorney Lerch to pay counsel
fees to Lea Ann Heltzel, Esq., counsel for Thomas P. Farrell, Jr. (Mr. Farrell).
Attorney Lerch claims that she was not in contempt of an order compelling
discovery because the order was directed to Ms. Farrell and not Attorney
Lerch. We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion.
This case was initiated by the filing of a divorce complaint on
behalf of [Mr. Farrell] on September 9, 2015. [Mr. Farrell] is
represented by [Attorney Heltzel. Ms. Farrell] proceeded pro se
until October 30, 2017[,] when Attorney . . . Lerch entered her
appearance on behalf of [Ms. Farrell. Ms. Farrell] filed a praecipe
for appointment of master on April 13 of 2018; thereafter, by
order of April 16, 2018, Curtis Irwin, Esquire, was appointed
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S23027-19
master in divorce. Pre-trial conference with the master was set
for May 14, 2018. The parties were to file the required pre-
master’s hearing documents within no more than 20 days from
April 16, 2018. Master’s hearing was scheduled for Friday,
September 14, 2018[,] by the Honorable Paul E. Cherry.
On August 2, 2018[,] Attorney Heltzel filed a motion to compel.
This motion indicates that on May 21, 2018[,] she had made an
informal request for production of documents from Attorney
Lerch. Having heard and received nothing, follow-up
correspondence was mailed on July 9, 2018. Still no response was
made.
Trial Ct. Op., 1/18/19, at 1 (some capitalization omitted).
On August 3, 2018, the trial court issued the below order:
And now, this 3rd day of August, 2018 . . . it is ordered and
decreed that the Defendant shall within twenty (20) days . . .
produce all documents sought by way of Plaintiff’s request for
production of documents.
Order, 8/3/18 (some capitalization omitted).
The parties do not dispute that Ms. Farrell, acting pro se, typed her
answers to Mr. Farrell’s requests for production of documents, attached a few
documents, and sent them to Attorney Heltzel around August 13, 2018. Ex.
D to Mr. Farrell’s Mot. to Compel, 9/10/18; see N.T., 9/13/18, at 9. Ms.
Farrell’s pro se responses included multiple answers in which she expressed
an unwillingness to disclose the requested information or documents. Ex. D
to Mr. Farrell’s Mot. to Compel, 9/10/18, at ¶ 1 (“forgive me on my reluctance
to share complete information on such documentation”), ¶ 15 (“Sorry but I
will not disclose this information it [sic] does not have any bearing on the
court proceedings and is absolutely no one’s business”). Several of her
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responses were “N/A” and others included personal attacks and other
allegations against Mr. Farrell. See, e.g., id. at ¶ 13 (claiming Mr. Farrell had
“attacked me in my home multiple times”), ¶ 15 (alleging Mr. Farrell
committed insurance fraud), ¶ 16 (asserting Mr. Farrell had “public drunken
rants”).
Following receipt of Ms. Farrell’s pro se discovery responses, the
following occurred:
On Monday, September 10, 2018[, Attorney Heltzel] filed a motion
to compel, sanctions and attorney’s fees[1] as well as a second
pleading, being a motion for continuance. As Judge Paul E. Cherry
was on vacation that week, [Mr. Farrell’s] motions were given to
[President Judge Fredric J. Ammerman] for disposition.
Trial Ct. Op. at 2 (some capitalization omitted).
The trial court denied the motion for continuance and scheduled a
hearing on Mr. Farrell’s motion to compel, sanctions, and attorney’s fees for
September 13, 2018. Ms. Farrell filed an answer and also filed a motion to
compel and for attorney’s fees of $1,500, each prepared by Attorney Lerch.
The trial court also scheduled the hearing on Ms. Farrell’s counseled motion
for September 13, 2018. As noted above, the master’s hearing was scheduled
for the next day, September 14, 2018.
____________________________________________
1 Attached to Mr. Farrell’s motion to compel as an exhibit was the above-
referenced Ms. Farrell’s pro se typewritten responses to Mr. Farrell’s requests
for production of documents. Ex. D to Mr. Farrell’s Mot. to Compel, 9/10/18.
Neither Ms. Farrell nor Attorney Lerch signed the pro se responses.
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At the September 13, 2018 hearing, the trial court addressed Mr.
Farrell’s motion to compel first. Attorney Heltzel indicated that she received
additional documents that morning but that Ms. Farrell’s response was still
inadequate. N.T., 9/13/18, at 3. Attorney Heltzel identified the documents
she still needed. Id.
The trial court then inquired about Exhibit D that was attached to Mr.
Farrell’s motion to compel. Id. at 4. The following exchange occurred:
THE COURT: [E]xhibit D . . . is one page, and it has numbered
paragraphs, and it appears to me that this was written specifically
by [Ms. Farrell] and not by [Attorney Lerch]; is that correct?
ATTORNEY LERCH: That’s correct. Those were the answers to the
list of—24 [requests for production of documents] that [Attorney
Heltzel] was requesting, which were provided—
THE COURT: So you just gave it to your client and asked her to
write a response?
ATTORNEY LERCH: She wanted to write a response.
THE COURT: I consider this response to be extremely
unprofessional, and I really can’t believe that this is how you
would respond to [Attorney Heltzel’s] request. Is this how you
practice law? This is unacceptable.
Now, the next thing we have is we have [Ms. Farrell’s counseled]
motion to compel and for attorney’s fees.
* * *
THE COURT: . . . [The above motion] was filed yesterday.
ATTORNEY HELTZEL: And [Ms. Farrell’s counseled motion to
compel] was the first request that I had gotten [from Attorney
Lerch] for any documentation, was yesterday . . . with regard to
that.
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THE COURT: Did you make prior requests for discovery?
ATTORNEY LERCH: Not formal requests, no, nothing other than
what was provided . . . in [Attorney Heltzel’s] pre-trial statement,
but the documentation that was to back that up was not provided
to me.
So these weren’t surprise requests. All these requests were things
that were noted in either [Attorney Heltzel’s] pre-trial [statement]
or the documentation that had been provided before.
THE COURT: What did you receive from Attorney Lerch requesting
information previously? Anything?
ATTORNEY HELTZEL: No, Your Honor.
THE COURT: No letters?
ATTORNEY HELTZEL: I don’t think so, no.
* * *
THE COURT: Well, clearly, the record reflects that there were no
formal legal documents filed for requesting any type of discovery
by Attorney Lerch to [Mr. Farrell].
ATTORNEY LERCH: That’s correct.
Id. at 4-5. Attorney Lerch and Attorney Heltzel reiterated that they did not
receive any informal discovery requests memorialized in writing. Id. at 6.
The trial court then questioned why Ms. Farrell and Attorney Lerch
waited until September 12, 2018—one day before the hearing scheduled for
Mr. Farrell’s motion and two days before the master’s hearing—to file a motion
to compel. Id. at 8.
THE COURT: . . . It escapes me how [Ms. Farrell’s counseled]
motion [to compel] could be filed September the 12th, which was
yesterday, for a master’s hearing, which is scheduled tomorrow,
on a case that’s three years old and you don’t have all this
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information that apparently you never bothered to ask for before
you filed this motion two days before the master’s hearing.
If you don’t have this information, how can you possibly
intelligently discuss these issues with your client? How can you
possibly intelligently determine where this case is headed, what
she might be entitled to and try to have any meaningful
settlement discussions with Ms. Heltzel escapes me, it’s beyond
me, in a case that’s almost three years old.
So as far as I’m concerned, the only reason that [Attorney Lerch]
filed this counseled motion is because [she] was worried about the
motion that Ms. Heltzel filed for the half-rear response that she
got on her request for production of documents, so this was filed
basically to try to equalize the one that she filed. So I’m a real
unhappy guy—
* * *
ATTORNEY LERCH:—if I can explain, first of all, the answers that
were provided, maybe they are unconventional to the [trial c]ourt,
but they were the answers and they were provided to counsel and
they were also provided in a timely manner in accordance with
Judge Cherry’s [August 3, 2018] order. Actually, I think it was
before the 20 days was up, but I can’t recall that exactly, so I
don’t know that for sure.
But, substantially, everything was given. And if there wasn’t, there
was an explanation for that. I never received any indication that
it wasn’t acceptable. I had no communication from counsel.
Id. at 8-9.
After a further exchange between the trial court and Attorney Lerch, the
trial court issued the following order:
AND NOW, this 13th day of September, 2018, this being the date
set for argument on [Ms. Farrell’s] motion to compel and for
attorney’s fees, it is the ORDER of this court that for the reasons
as discussed during the hearing, as are a matter of record, it is
the ORDER of this court that [Ms. Farrell’s] motion to compel and
for attorney’s fees be and are hereby DISMISSED.
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This also being the date for presentation of the [Mr. Farrell’s]
motion to compel, sanctions and attorney’s fees. It is the ORDER
of this court that the said motion be GRANTED to the extent that
the court believing that [Ms. Farrell’s] counsel, Lavita Lerch,
Esquire, is in contempt of the order of the Honorable Judge Paul
Cherry of August 3, 201[8], and shall pay attorney’s fees to [Mr.
Farrell’s] attorney, Lea Ann Heltzel, in the amount of fifteen
hundred ($1500.00) dollars within no more than thirty (30) days
from this date.
In addition, [Ms. Farrell] shall not be permitted by the master to
present any documentation in this case that hasn’t been
previously provided to [Mr. Farrell’s] counsel.
Order, 9/13/18, at 1.2
On September 19, 2018, Attorney Lerch filed a motion for
reconsideration, challenging the trial court’s order finding her in contempt of
the trial court’s August 3, 2018 order directing that Ms. Farrell produce all
responsive documents within twenty days. Attorney Lerch’s Mot. for Recons.,
9/19/18, at 1. Attorney Lerch contended that there was no factual basis that
she was in contempt but did not challenge the amount of counsel fees
awarded.
Attorney Lerch filed a timely notice of appeal on October 2, 2018, and
timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
____________________________________________
2 We acknowledge that at the hearing, the court orally ordered that “Defendant
is in contempt.” N.T., 9/13/18, at 11. Because no party has raised that
discrepancy, and because the court and the parties have relied on the written
order as set forth above, we decline to address the discrepancy.
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On October 9, 2018, the trial court held a hearing on Attorney Lerch’s
motion for reconsideration. At the hearing, Attorney Lerch argued that she
could not be held in contempt because she was not subject to any court order.
N.T. Recons., 10/9/18, at 2-3. Attorney Lerch reasoned that Judge Cherry’s
August 3, 2018 order to compel was directed to “the parties and not on
counsel.”3 Id. at 2. On October 10, 2018, the trial court denied Attorney
Lerch’s motion for reconsideration and sua sponte reduced the counsel fees
awarded to Attorney Hetzel from $1,500 to $900. Order, 10/10/18; see also
N.T. Recons. at 8. Attorney Lerch also filed a motion to stay the order pending
the appeal, which the trial court granted.
Attorney Lerch raises the following issues:
1. Did the [trial court] abuse its discretion and err as a matter of
law in finding that [Attorney Lerch] is personally in contempt when
there are no facts supporting such a finding.
2. Did the [trial court] abuse its discretion and err as a matter of
law in finding that [Attorney Lerch] is personally in contempt when
no order existed requiring counsel to comply with any such order.
Attorney Lerch’s Brief at 4 (some capitalization omitted).
We summarize Attorney Lerch’s arguments in support of both of her
issues together. She contends that she cannot be held personally in contempt
because the trial court’s August 3, 2018 order did not require her to comply.
Id. at 11. Attorney Lerch maintains there was no evidence that the order also
____________________________________________
3 At the hearing, Attorney Lerch did not contest the amount of counsel fees.
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applied to counsel. Id. at 12. It follows, Attorney Lerch reasons, that there
could be no evidence that she disregarded the court’s order. Id.
Regardless, Attorney Lerch argues that the record did not establish any
such violation because Attorney Hetzel did not identify the documents she did
not receive. Id. at 13. Attorney Lerch asserts that it is “common sense” that
the requested documents were in the possession and control of Ms. Farrell and
there was no evidence that Attorney Lerch had any such documents requested
by Attorney Hetzel’s motion to compel. Id. Attorney Lerch claims it “is hard
to conceive how a party’s counsel can be personally responsible for obtaining
documents from his or her client.” Id. at 14.
We review an order imposing sanctions for a violation of a discovery rule
for an abuse of discretion. Rohm & Has Co. v. Lin, 992 A.2d 132, 141-42
(Pa. Super. 2010); Luszczynski v. Bradley, 729 A.2d 83, 87 (Pa. Super.
1999). Pennsylvania Rule of Civil Procedure 4019 addresses sanctions for
discovery violations:
(a)(1) The court may, on motion, make an appropriate order if
* * *
(viii) a party or person otherwise fails to make discovery or to
obey an order of court respecting discovery.
* * *
(c) The court, when acting under subdivision (a) of this rule, may
make
* * *
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(4) an order imposing punishment for contempt . . .
(5) such order with regard to the failure to make discovery as
is just.
Pa.R.C.P. 4019(a)(1)(viii), (c)(4)-(5). Rule 4019(g)(1) states “the court on a
subsequent motion for sanctions may, if the motion is granted, require the
party or deponent whose conduct necessitated the motions or the party or
attorney advising such conduct or both of them to pay to the moving party
the reasonable expenses, including attorney’s fees . . . .” Pa.R.C.P.
4019(g)(1) & note.
Initially, with respect to Attorney Lerch’s argument that she cannot be
held in contempt because the trial court’s August 3, 2018 order did not
specifically name her, she did not cite any pertinent authorities. Therefore,
Attorney Lerch has waived that argument on appeal. See In re Whitley, 50
A.3d 203, 209-10 (Pa. Super. 2012) (holding, “[f]ailure to cite relevant legal
authority constitutes waiver of the claim on appeal” (citation omitted)).
Regardless, on the merits, the trial court acted within its authority to
sanction counsel under Rule 4019 for engaging in conduct that required the
moving party to file a motion for sanctions. See Pa.R.C.P. 4019(g)(1). Here,
the conduct would include permitting Ms. Farrell’s discovery responses that
Ms. Farrell prepared herself to be served on opposing counsel—responses that
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did not comply with the trial court’s August 3, 2018 order.4 See id.5 As noted
above, Ms. Farrell refused to provide some of the requested information and
responded “N/A” to others requests with no explanation. See Ex. D to Mr.
Farrell’s Mot. to Compel, 9/10/18, at ¶¶ 1, 15.
With respect to Attorney Lerch’s argument that counsel can never be
personally responsible for obtaining documents from her client, we disagree.
Attorney Lerch’s decision to serve Ms. Farrell’s pro se, unresponsive discovery
responses that attacked Mr. Farrell and refused to provide documents is a
basis upon which the trial court may sanction counsel. See generally
Pa.R.C.P. 4019(g)(1). Accordingly, Attorney Lerch has not established the
trial court abused its discretion in sanctioning her. See Lin, 992 A.2d at 141-
42.
Order affirmed.
____________________________________________
4 We note the Rules of Professional Conduct include an obligation to provide
competent representation to a client. 204 Pa. Code Rule 1.1. Given Ms.
Farrell’s non-responsiveness, personal attacks, and refusal to provide
documents, see Ex. D to Mr. Farrell’s Mot. to Compel, 9/10/18, at ¶¶ 1, 13,
15, 16, Attorney Lerch’s rationale for serving Ms. Farrell’s pro se responses is
unclear.
5 Cf. Gliwa v. U.S. Steel Corp., 3 A.2d 778, 779 (Pa. 1938) (holding that
“[w]hen a lawyer has appeared in court for a client . . . , he alone can act in
the matter, the client, until he discharges his attorney and notifies the other
side of his having done so, can take no action whatever. Any other rule would
be subversive of all orderliness in the conduct of litigation . . . . Apparently
no Pennsylvania case lays down this salutary rule, the reason doubtless being
that in the customs among lawyers it has been recognized time out of mind”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2019
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