Fotopoulos, H. v. Fotopoulos, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HEATHER A. FOTOPOULOS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES F. FOTOPOULOS
Appellant No. 354 EDA 2015
Appeal from the Order of December 31, 2014
In the Court of Common Pleas of Lehigh County
Civil Division at No.: 2010-FC-0234
BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 10, 2015
James F. Fotopoulos (“Husband”) appeals the December 31, 2014
memorandum and order that awarded Heather A. Fotopoulos (“Wife”)
attorney fees and costs from a prior appeal by Husband. We vacate that
order.
On February 20, 2013, the trial court conducted an abbreviated
custody hearing because Wife was planning to move from the shared marital
residence. The trial court and the parties wanted a custody order in place
when Wife moved. At the end of the day of testimony, the trial court
entered an interim custody order with the intention of conducting additional
hearings to permit the parties to complete the record so that the court could
produce a final custody order. See Notes of Testimony (“N.T.”), 2/20/2013,
at 284.
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Husband appealed the interim custody order. After receiving the
notice of appeal, the trial court entered an order for the court reporter to
produce a transcript by April 2, 2013. When the transcript was not filed by
April 2, Husband filed a petition with the trial court to hold the court reporter
in contempt. The trial court dismissed the petition without a hearing.
Husband appealed that order as well.
The two appeals were listed consecutively with this Court for oral
argument. After argument, on November 13, 2013, this Court quashed
Husband’s appeal of the interim custody order because it was not a final
appealable order. H.A.F. v. J.F.F., 773 EDA 2013, slip op. at 3 (Pa. Super.
Nov. 13, 2013). We also denied Wife’s request for counsel fees in
connection with that appeal. On November 22, 2013, this Court quashed
Husband’s appeal of the dismissal of his contempt petition. Again, we
determined that the order was not a final appealable order. H.A.F. v.
J.F.F., 1756 EDA 2013, slip op. at 5 (Pa. Super. Nov. 22, 2013).
On December 6, 2013, Wife filed a motion with this Court for costs and
damages. On December 12, 2013, we denied Wife’s motion without
prejudice to pursue the costs and fees in the trial court. On December 30,
2013, Wife sought counsel fees and costs from the trial court. On March 11,
2014, Wife filed a petition for counsel fees and costs associated with the
appeal of the order denying Husband’s petition for contempt. On August 13,
2014, the trial court heard argument on Wife’s petitions. On December 31,
2014, in a memorandum and order, the trial court awarded Wife counsel
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fees and costs associated with Husband’s appeal of the interim custody
order. The court awarded Wife $12,803.00 in connection with the appeal.
On January 27, 2015, Husband filed a notice of appeal. On January
29, 2015, the trial court ordered Husband to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February
18, 2015, Husband filed a concise statement. On March 19, 2015, the trial
court filed a statement pursuant to Pa.R.A.P. 1925(a), in which the court
adopted its December 31, 2014 memorandum.
Husband presents three issues for our review:
A. Did the court below err in awarding costs and counsel fees
under Pa.R.A.P. 2742-2744 based on its finding that
[Husband’s] appeal was frivolous, since only the appellate
court has the authority to determine that an appeal is
frivolous?
B. Did the court below abuse its discretion in awarding counsel
fees to [Wife] where there was no finding that [Husband]
engaged in conduct in the lower court which was dilatory,
obdurate or vexatious?
C. Did the court below err in not holding an evidentiary hearing
regarding the reasonableness of counsel fees, and abuse its
discretion in awarding an amount for time spent in a separate
appeal wherein the lower court denied the petition for fees?
Husband’s Brief at 5.
Husband argues that the trial court incorrectly awarded fees because
the appellate rules provide that only the appellate court may conclude that
an appeal is frivolous. Husband asserts that, because this Court denied
Wife’s petition, the trial court did not have the authority to award fees.
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Husband’s Brief at 8-9. Wife responds that the trial court was acting in
accordance with this Court’s order that permitted Wife to pursue costs and
fees in the trial court. Wife’s Brief at 5.
Rule 2744 provides that:
In addition to other costs allowable by general rule or Act of
Assembly, an appellate court may award as further costs
damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in
addition to legal interest,
if it determines that an appeal is frivolous or taken solely for
delay or that the conduct of the participant against whom costs
are to be imposed is dilatory, obdurate or vexatious. The
appellate court may remand the case to the trial court to
determine the amount of damages authorized by this rule.
Pa.R.A.P. 2744.
In a case in which the trial court awarded counsel fees for obdurate,
vexatious, and dilatory conduct pursuant to 42 Pa.C.S.A. § 2503(7) and fees
and costs incurred during an appeal of the trial court’s order pursuant to
Rule 2744, we stated:
The trial court is not the proper authority to determine whether
an appeal from its ruling is frivolous, taken solely for delay or
whether the appellant’s conduct is dilatory, obdurate or
vexatious with respect to that appeal. The appellate court is the
appropriate body to make such a ruling after an examination of
the facts in light of the arguments and briefs of the parties. It is
only where the appellate court makes such a finding that the
case may be remanded to the trial court upon order of the
appellate court for a calculation of fees. No such order was
entered by the Superior Court in the prior appeal, perhaps
because [the plaintiff] never sought such a ruling. Thus, it was
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improper for the trial court to award [the plaintiff] the costs of
its attorney fees incurred in the prior appeal.
Mellon Bank, N.A. v. Druzisky, 800 A.2d 955, 958 (Pa. Super. 2002). We
affirmed the trial court’s imposition of attorney’s fees pursuant to section
2503 for the conduct while the case was before the trial court. We vacated
the award of fees associated with the appeal for the reasons cited above.
Id.The trial court does not have authority to award costs and fees
pursuant to Rule 2744 unless this Court makes a finding that the appeal is
frivolous and remands to the trial court for calculation of the damages.
Here, we made no finding that Husband’s appeal was frivolous. Instead, this
Court denied Wife’s petition for costs and fees and permitted Wife to seek
relief in the trial court. This Court could not remand for consideration of
costs and fees in the trial court unless we found the appeal to be frivolous.
Because we did not make such a finding, it was error to permit Wife to
pursue those fees in the trial court. However, we cannot say that the denial
of Wife’s motion and the discretion exercised in declining to find Husband’s
appeal to be frivolous was “clearly erroneous” such that we would be
permitted to invoke an exception to the coordinate jurisdiction rule. Further,
because Wife is not precluded from seeking fees in the trial court for actions
in that court pursuant to section 2503, there was no manifest injustice. See
Zane v. Friends Hosp., 836 A.2d 25, 30 (Pa. 2003) (“[W]hile a judge must
in most circumstances defer to the prior decision of another judge of
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coordinate jurisdiction, he or she is not required to do so in the limited and
exceptional situation in which, inter alia, the prior judge’s order is clearly
erroneous and would result in a manifest injustice.”). Therefore, the trial
court simply did not have the authority to award costs and fees in
connection with the appeal. We must vacate the court’s order awarding fees
and costs pursuant to Rule 2744.
Husband next argues that there was no basis upon which the trial
court could have awarded fees pursuant to section 2503 because the trial
court did not make the necessary findings. Husband’s Brief at 9-11. Section
2503(7) states that the trial court may award counsel fees “as a sanction
against another participant for dilatory, obdurate or vexatious conduct
during the pendency of a matter.” 42 Pa.C.S.A. § 2503(7).
Although Wife sought counsel fees pursuant to this section in her
petitions, it is clear from the trial court’s order and opinion that the trial
court awarded fees solely upon the basis of Rule 2744. The trial court does
not mention section 2503 or make any finding that Husband’s conduct was
dilatory, obdurate or vexatious. Because this was not a basis for Wife’s
award, this issue is moot and we express no opinion as to whether the trial
court would have erred had it based its award upon section 2503(7).
Finally, Husband argues that the trial court erred by not holding an
evidentiary hearing regarding the reasonableness of the costs and fees
submitted by Wife. In light of our decision to vacate the order on other
grounds, this issue also is moot.
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Order vacated. Jurisdiction relinquished.
Judge Donohue joins the memorandum.
Judge Shogan notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2015
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