In Re: Estate of Grimm, S., Appeal of: Bernhard, R

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF SARA JANE GRIMM, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: REBECCA BERNHARD,
EXECUTRIX
No. 370 WDA 2015
Appeal from the Order January 30, 2015
In the Court of Common Pleas of Mercer County
Orphans' Court at No(s): 2011-153
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 15, 2015
Rebecca Bernhard, Executrix of the Estate of Sara Jane Grimm,
Deceased, brings this appeal from the order entered January 30, 2015, in
the Court of Common Pleas of Mercer County, that imposed a sanction of
$900.00 in attorney fees on Bernhard for responding to an interrogatory
propounded by appellee, William L. Grimm,1 with a frivolous objection. We
quash this appeal due to a lack of jurisdiction.2
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1
Grimm is the decedent’s stepson.
2
On April 13, 2015, this Court directed Bernhard to show cause why the
appeal should not be quashed. Bernhard responded by letter dated April 23,
2015. Thereafter, on April 27, 2015, this Court discharged the rule to show
cause and permitted the appeal to proceed, with the issue of jurisdiction
deferred to the merits panel. See Order, 4/27/2015.
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The orphans’ court summarized the background of this appeal, as
follows:
On September 16, 2014, [Grimm] served Interrogatories and
Requests for Production of Documents on [Bernhard].
[Bernhard’s] answers to the discovery requests contained
numerous objections. This prompted [Grimm] to file a “Motion to
Dismiss Petitioner’s Objections to Respondent’s Interrogatories
and Request for Production of Documents, Determine Sufficiency
of Answers, and Request for Sanctions.”
A hearing on the Motion to Dismiss occurred on December 1,
2014. As a result, this Court entered an order requiring
[Bernhard] to answer or comply with all discovery requests
within ten (10) days of the date of the order. Additionally, in the
event [Bernhard] again objected to any interrogatory or
discovery request, and that objection was later determined to be
frivolous in nature, [Bernhard] was advised that sanctions would
be imposed.
On December 11, 2014, [Bernhard] provided supplemental
answers to [Grimm’s] discovery requests, which again contained
numerous objections. This prompted [Grimm] to file a
“Supplemental Motion to Dismiss Petitioner’s Objections to
Respondent’s Interrogatories and Request for Production of
Documents, Determine Sufficiency of Answers, and Request for
Sanctions.” On January 30, 2015, a hearing on [Grimm’s]
Supplemental Motion to Dismiss occurred, and this Court found
that [Bernhard’s] objection to Interrogatory No. 11 was
frivolous. Accordingly, the above sanction [of $900 in attorney
fees] was imposed.
Pursuant to Pa.R.C.P. Rule 4019(g)(1), the order of December 1,
2014 was an “order compelling compliance” of a discovery
matter following an opportunity for a hearing on same.
[Grimm’s] “Supplemental Motion to Dismiss ... and Request for
Sanctions” was a “subsequent motion for sanctions” as set forth
under subparagraph (g)(1). The sanction imposed resulted
because [Bernhard] “failed to obey” the order of December 1,
2014 by responding to an interrogatory with an objection that
was determined to be frivolous in nature at the hearing held on
January 30, 2015.
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Orphans’ Court Pa.R.A.P. 1925(b) Opinion, 4/27/2015, at 1–2.
At the outset, we address the issue of appealablity.
As a general rule:
The appealability of an order directly implicates the jurisdiction
of the court asked to review the order. “[T]his Court has the
power to inquire at any time, sua sponte, whether an order is
appealable.” Pennsylvania law makes clear:
[A]n appeal may be taken from: (1) a final order or an
order certified as a final order (Pa.R.A.P. 341); (2) an
interlocutory order as of right (Pa.R.A.P. 311); (3) an
interlocutory order by permission (Pa.R.A.P. 312, 1311,
42 Pa.C.S.A. § 702(b)); or (4) a collateral order
(Pa.R.A.P. 313).
In re Moskowitz, 115 A.3d 372, 388–389 (Pa. Super. 2015) (citation and
internal citations omitted).
Under Pa.R.A.P. 341, the present order awarding attorney fees as a
discovery sanction is not a final order. See Pa.R.A.P. 341(b)(1) (defining
final order as “any order that disposes of all claims and of all parties”). See
also Angelicho v. Myers, 110 A.3d 1046 (Pa. Super. 2015) (default
judgment entered as discovery sanction was not final, appealable order; the
sanction order did not dispose of all claims against all parties); T.M. v.
Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008) (in general, discovery orders
are not final and are therefore unappealable); Robec, Inc. v. Poul, 681
A.2d 809 (Pa. Super. 1996) (generally, Superior Court will not provide
interim supervision of discovery proceedings conducted in connection with
pending litigation).
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Furthermore, the order does not fall within any of the categories
delineated in Pa.R.A.P. 342, which provides an appeal as of right from
certain orders of the orphans’ court.3
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3
Rule 342, titled, “Appealable Orphans’ Court Orders,” provides:
(a) General rule. An appeal may be taken as of right from the
following orders of the Orphans’ Court Division:
(1) An order confirming an account, or authorizing or
directing a distribution from an estate or trust;
(2) An order determining the validity of a will or trust;
(3) An order interpreting a will or a document that forms
the basis of a claim against an estate or trust;
(4) An order interpreting, modifying, reforming or
terminating a trust;
(5) An order determining the status of fiduciaries,
beneficiaries, or creditors in an estate, trust, or
guardianship;
(6) An order determining an interest in real or personal
property;
(7) An order issued after an inheritance tax appeal has
been taken to the Orphans' Court pursuant to either 72
P.S. § 9186(a)(3) or 72 P.S. § 9188, or after the orphans’
Court has made a determination of the issue protested
after the record has been removed from the Department
of Revenue pursuant to 72 P.S. § 9188(a); or
(8) An order otherwise appealable as provided by Chapter
3 of these rules.
Pa.R.A.P. 342(a).
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Pursuant to Rule 342(a)(8), an orphans’ court order not otherwise
immediately appealable under Rule 342 may still be immediately appealable
if it meets the criteria under another rule in Chapter 3 of these rules.
Regarding Rule 313, this Court has held: “[D]iscovery orders involving
privileged material are nevertheless appealable as collateral to the principal
action pursuant to Pa.R.A.P. 313 (‘Collateral Orders’).” T.M., supra, 950
A.2d at 1056. The present order, however, does not compel the production
of any privileged material, and no argument is made that the “right involved
is too important to be denied review and the question presented is such that
if review is postponed until final judgment in the case, the claim will be
irreparably lost.” See Pa.R.A.P. 313(b); T.M., supra.
Bernhard cites no legal authority in support of her position that this
Court has jurisdiction to review the underlying order, but points to an earlier
appeal by Grimm in this case as dispositive of the issue of appealability.
See Bernhard’s Brief at 12. See also In re Estate of Grimm, ___ A.3d
___ [1186 WDA 2014] [2015 Pa. Super. Unpub. LEXIS 1078] (Pa. Super.
April 23, 2015) (unpublished memorandum). Our review, however, finds
Grimm’s prior appeal of a contempt order to be distinguishable from the
present one, taken from the order awarding attorney fees as a discovery
sanction for a frivolous objection pursuant to Pa.R.C.P. No. 4019 (providing
for discovery sanctions).
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As discussed above, the present order is not appealable under any of
the relevant rules of appellate procedure. Accordingly, we quash this
appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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