Lowe, D. v. Lowe, D.

J.A19040/14
2015 PA Super 35DINA LOWE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD LOWE, :
:
Appellant : No. 1834 WDA 2013
Appeal from the Order October 30, 2013
In the Court of Common Pleas of Allegheny County
Civil Division No(s).: FD07-005261-008
BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED FEBRUARY 17, 2015
In this child custody matter, Appellant, Donald Lowe (“Husband”),
appeals from the order entered in the Allegheny County Court of Common
Pleas directing him to pay $500 in counsel fees to pro se Appellee, Dina
Lowe (“Wife”).1 We hold that under Pennsylvania Rules of Civil Procedure
1023.1, 1023.3, and 1023.4: (1) a court may sua sponte impose sanctions
against a party only if it, inter alia, first directs that party to show cause why
sanctions are not merited; and (2) in the absence of any motion for
sanctions, a court that imposes sanctions on its own initiative may only
impose a penalty to be paid into court or directives of a nonmonetary
*
Former Justice specially assigned to the Superior Court.
1
Wife did not file a brief in this appeal.
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nature, and may not award payment to the other party. We vacate and
remand for further proceedings.
The trial court summarized:
The underlying case between these parties commenced
in October 2007, with the filing of a complaint in support
by [Wife]. Since 2012, Wife has proceeded pro se.
Husband is represented by local attorney Max Feldman[,
Esq.2] On September 19, 2013, the Divorce Decree was
entered but the parties have continued with custody
litigation.
Feldman, on behalf of Husband, served Wife with a
motion which would be presented on October 30, 2013 to
request continuance of an upcoming hearing.[3] Attorney
Feldman was also to appear before me to contest another
motion that same day, scheduled by [another attorney].
At some point that morning, [A]ttorney Feldman called my
chambers and told a staff member that [the other
attorney] informed him he was unable to come to court
and therefore, Feldman was “pulling” both motions.
At the end of Motions Court[ ], my tipstaff noticed Wife
in the courtroom. Wife stated that she did not have notice
of [Husband’s] motion being “pulled”, that she had driven
from her home in another county to contest the motion
and, to do so, she had to miss a day’s work. She further
stated that this was not the first time she had been
inconvenienced by [A]ttorney Feldman, and missed work
previously, only to have motions “pulled”. She stated she
feared losing her job due to missed work. I found Wife
credible.
2
Attorney Feldman continues to represent Husband in this appeal.
3
Although the trial court opinion does not elaborate on this motion, we note
the certified record and trial docket reflect that on September 20, 2013,
Husband filed a motion for shared custody of the parties’ child. The record
also includes an order, filed the same day, scheduling a hearing for
November 14th. The next filing in the record, however, is the instant,
October 31st order directing Husband to pay attorneys’ fees to Wife.
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Trial Ct. Op., 1/14/14, at 2-3.
On the same day, the trial court entered the order that is the subject
of this appeal. The order directed Husband to pay “[c]ounsel fees of $500
w/in 10 days [to Wife] for failure to properly notify her of the pulled
motions.” Order, 10/31/13. The order also stated, “Future continuances or
requests to pull motions should be handled by actual service to” Wife. Id.“Attorney Feldman filed a ‘Motion for Reconsideration’ to be presented
November 6, 2013[.]” Trial Ct. Op. at 3. The court stated that Attorney
Feldman, however, did not appear for the hearing and “[i]nstead, he sent
another attorney to present it, despite the fact that he was in the building
and, in fact, looked into my courtroom from the hallway.” Id. The court
found Attorney Feldman’s failure to appear “precluded [it] from questioning
him regarding Wife’s claims [and] judging his credibility,” and thus denied
the motion for reconsideration. Id. This timely appeal followed.
In its opinion, the trial court stated the following. It found Wife
credible when she stated she incurred costs by missing work and that the
October 30, 2013, hearing “was not an isolated incident.” Trial Ct. Op. at 6.
The court “also found [A]ttorney Feldman’s position highly suspect, as he
failed to come into court to defend his actions.” Id. It thus intended to
“impose[ ] a sanction on Husband’s counsel, not Husband,” “deter any
further such behavior,” and, “although actual counsel fees were not
incurred,” “to compensate Wife for the distress[,] inconvenience and costs
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caused by [Attorney Feldman’s] disregard of her time and circumstance.”
Id. at 4, 5, 6. The court acknowledged that attorneys’ fees are customarily
“awarded to a party as compensation for actual counsel fees incurred as a
result of the other party’s dilatory or vexatious conduct.” Id. at 4. It then
reasoned, “Had I, instead, simply sanctioned [A]ttorney Feldman and not
used the words ‘attorney fees’, Wife’s pro se status would not be an issue,
only the appropriateness of the sanction itself.” Id. Thus, the court
concluded, “[t]he problem is one of semantics, not discretion.” Id. at 6.
On appeal, Husband avers the trial court erred in awarding attorneys’
fees to Wife. In support, he argues that attorneys’ fees under 42 Pa.C.S. §
2503(7) may not be awarded to a pro se litigant, and that the court’s
characterization of its order as an “unfortunate choice of words” was an
improper attempt to modify the order. Husband’s Brief at 7, 9. Husband
further maintains he did not engage in any outrageous behavior or fail to
comply with court orders. Furthermore, Husband avers that “a claim under
42 Pa.C.S. § 2503(7) generally requires an evidentiary hearing, except
where the facts are undisputed,” and that if this Court “determines that the
existing record is not . . . clear and undisputed, then the matter should be
remanded . . . for an evidentiary hearing.” Id. at 13-14.
We consider the statute governing attorneys’ fees. Sub-section
2503(7) of the Judicial Code provides: “The following participants shall be
entitled to a reasonable counsel fee as part of the taxable costs of the
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matter: . . . (7) Any participant who is awarded counsel fees as a sanction
against another participant for dilatory, obdurate or vexatious conduct
during the pendency of a matter.” 42 Pa.C.S. § 2503(7). Our
Commonwealth Court has stated, “[A]n award for counsel fees under Section
2503 is meant to compensate the innocent litigant for costs caused by the
actions of the opposing party. Therefore, we held Section 2503 does not
authorize ‘an award of a pro se equivalent of counsel fees to a pro se
litigant.’”4 Maurice A. Nernberg & Assocs. v. Coyne, 920 A.2d 967, 972
(Pa. Cmwlth. 2007) (citations omitted).
The Pennsylvania Rules of Civil Procedure govern sanctions. We first
consider Rule 1023.1(c), which provides in pertinent part that the “signing,
filing, submitting or later advocating [of] a document, the attorney or pro se
party certifies that, to the best of [his] knowledge, information, and belief”
that the document “is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase in the cost
of litigation.” Pa.R.C.P. 1023.1(c). Subsection (d) of that rule provides,
If, after notice and a reasonable opportunity to
respond, the court determines that subdivision (c) has
been violated, the court may, subject to the conditions
stated in Rules 1023.2 through 1023.4, impose an
appropriate sanction upon any attorneys, law firms and
4
“Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
Charlie v. Erie Ins. Exch., 100 A.3d 244, 253 n.9 (Pa. Super. 2014)
(citation omitted).
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parties that have violated subdivision (c) or are
responsible for the violation.
Pa.R.C.P. 1023.1(d) (emphasis added).
Rule 1023.2, in turn, governs motions for sanctions for conduct alleged
to violate Rule 1023.1(c). Pa.R.C.P. 1023.2. Rule 1023.3 allows the court
to sua sponte broach the issue of sanctions as follows: “On its own
initiative, the court may enter an order describing the specific conduct that
appears to violate Rule 1023.1(c) and directing an attorney, law firm or
party to show cause why it has not violated Rule 1023.1(c) with respect
thereto.” Pa.R.C.P. 1023.3 (emphasis added). Finally, Rule 1023.4, entitled
“Sanctions” sets forth the following:
(a)(1) A sanction imposed for violation of Rule 1023.1
shall be limited to that which is sufficient to deter
repetition of such conduct or comparable conduct by
others similarly situated.
(2) Subject to the limitations in subdivision (b), the
sanction may consist of, or include,
(i) directives of a nonmonetary nature, including the
striking of the offensive litigation document or portion
of the litigation document,
(ii) an order to pay a penalty into court, or,
(iii) if imposed on motion and warranted for
effective deterrence, an order directing payment to the
movant of some or all of the reasonable attorneys’ fees
and other expenses incurred as a direct result of the
violation.
* * *
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[(b)](2) Monetary sanctions may not be awarded on the
court’s initiative unless the court issues its order to show
cause before a voluntary dismissal or settlement of the
claims made by or against the party which is, or whose
attorneys are, to be sanctioned.
(c) When imposing sanctions, the court shall describe
the conduct determined to be a violation of Rule 1023.1
and explain the basis for the sanction imposed.
Pa.R.C.P. 1023.4(a)(1)-(2), (b)(2), (c) (emphases added).
After considering the trial court’s reasons for directing Attorney
Feldman to pay Wife $500, we accept the court’s statement that its labeling
the payment as “attorneys’ fees” was a mis-characterization.5 See Trial Ct.
Op. at 3, 6. We further note the following. The record contains no motion
for sanctions filed by Wife and the trial court did not indicate she made an
oral motion.6 Although the court could sua sponte “enter an order
describing the specific conduct that appears to violate Rule 1023.1(c),” it
was required to direct Attorney Feldman to show cause why he did not
5
We reject Husband’s contention that the trial court improperly attempted
to amend its order and that it “is stuck with its order and may not escape
review of the order by calling essential language of the order mere
‘semantics.’” See Husband’s Brief at 9. “[A] trial court’s Rule 1925(a)
opinion ‘is intended as an aid to the reviewing appellate court and cannot
alter a previously entered verdict.’” Youst v. Keck’s Food Serv., 94 A.3d
1057, 1075 n.14 (Pa. Super. 2014) (citation omitted). A trial court is not
bound to argue only favorably in support of its rulings and may, as in the
instant case, acknowledge when it has made an error but nevertheless
explain its rationale or other pertinent information.
6
“Proceedings in Motions Court are not conducted on the record,” Trial Ct.
Op. at 3 n.1, and thus there is no transcript for this Court to review to
determine if Wife made an oral motion.
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violate that rule. See Pa.R.C.P. 1023.3, 1023.4(b)(2). Furthermore, had
the court issued the rule to show cause, without any motion by Wife it could
only direct Attorney Feldman “to pay a penalty into court” or issue
“directives of a nonmonetary nature.” See Pa.R.C.P. 1023.4(a)(2)(i)-(ii).
Pursuant to the plain language of Rule 1023.4(a)(2)(iii), the court could only
direct payment to Wife if she had filed a motion. See Pa.R.C.P.
1023.4(a)(2)(iii).
In light of the foregoing, we remand for the court to enter an order,
pursuant to Rule 1023.3, “describing the specific conduct that appears to
violate Rule 1023.1(c) and directing [Attorney Feldman] to show cause why
[he] has not violated” that rule. See Pa.R.C.P. 1023.3. Wife may file a
motion for sanctions pursuant to Rule 1023.2. See Pa.R.C.P. 1023.2. If
Wife does not file a motion, the court may only impose the sanctions
provided at Rule 1023.4(a)(2)(i) and (ii). If Wife files a proper7 motion for
sanctions, the court may proceed under Rule 1023.4(a)(2)(iii).
Finally, the court may again note in any order that Attorney Feldman is
to provide “actual service” to Wife of any “[f]uture continuances or requests
to pull motions.” See Order, 10/31/13. We reject Husband’s claim on
appeal that “[t]he only way to notify a pro se litigant of a change in
presenting a motion, something that happens on a regular basis and is easily
7
Rule 1023.2 sets forth the procedures under which a motion for sanctions
must be filed. Pa.R.C.P. 1023.2.
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coordinated between attorneys with offices and staff, was to call her on her
cell phone.” See Husband’s Brief at 5. We remind Attorney Feldman of Rule
of Civil Procedure 1915.3-1:
(a) Withdrawal of Pleading. A custody pleading
cannot be withdrawn after the issuance of a scheduling
order or notice of conference regarding claims made in the
pleading except
(1) by leave of court after notice to the non-moving
party, or
(2) by written agreement of the parties.
See Pa.R.C.P. 1915.3-1(a)(1)-(2).
Order vacated. Case remanded for proceedings consistent with this
opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
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