J-A06013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THE TINSMAN GROUP, INC.                :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 TRI-STATE GARDEN SUPPLY, INC.          :
 D/B/A GARDENSCAPE                      :
                                        :    No. 1087 MDA 2018
                   Appellant            :

                Appeal from the Order Dated June 6, 2018
           In the Court of Common Pleas of Cumberland County
                   Civil Division at No(s): 2015-03146


BEFORE:    OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY OTT, J.:                        FILED SEPTEMBER 24, 2019

     Tri-State Garden Supply, Inc., d/b/a Gardenscape (“Tri-State Garden”)

appeals from the order entered on June 6, 2018, in the Cumberland County

Court of Common Pleas, which denied its petition to open a default judgment

entered against it and in favor of The Tinsman Group, Inc. (“Tinsman”). On

appeal, Tri-State Garden argues the trial court erred in failing to determine

that Tinsman’s counsel committed a fraud upon it and the court by

misrepresenting applicable case law at the default judgment hearing, which

caused the court to award specific damages in the amount of $183,983.83,

without having to prove such damages at a separate hearing. See Tri-State

Garden’s Brief at 1. Moreover, Tri-State Garden contends Tinsman’s counsel

acted fraudulently by failing to abide by Pennsylvania Rule of Professional

Conduct 3.3, which required Tinsman’s counsel to inform the court of material
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06013-19



facts that would have required the court to deny entry of said damages

because Tinsman had not plead specific damages in its complaint. Id. Based

on the following, we quash the appeal.

      The facts and procedural history as follows: On June 8, 2015, Tinsman

filed a breach of contract complaint, alleging Tri-State Garden “was in the

business of producing, transporting and distributing various garden products,

that [Tinsman] had served [Tri-State Garden] as an independent sales

representative, and that     [Tri-State   Garden]   had failed to    fully pay

commissions due to [Tinsman] for procuring sales of [Tri-State Garden’s]

products.” Trial Court Opinion, 8/14/2018, at 2.

      Subsequently, on April 18, 2017, Tinsman filed a motion to compel

discovery responses and for sanctions. One day later, the court entered an

order, requiring Tri-State Garden to file answer to interrogatories and requests

for production of documents within 20 days of said order. The court stated:

“Failure to comply with the time period set forth in this Order may result in

the imposition of sanctions including the preclusion of evidence and the

imposition of attorney fees.” Order of Court, 4/19/2017. On May 15, 2017,

Tinsman filed a motion for sanctions with entry of default judgment against

Tri-State Garden pursuant to Pa.R.C.P. 4019, alleging Tri-State Garden had

not responded to the order within the required time period. See Motion for

Sanctions with Entry of Default Judgment against Defendant Pursuant to

Pa.R.C.P. 4019, 5/15/2017, at ¶ 11. On May 22, 2017, the court entered an


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J-A06013-19



order, scheduling a hearing on August 2, 2017, to address Tinsman’s motion

for sanctions and to determine what “sanctions shall be imposed.” Order of

Court, 5/22/2017.

       On August 1, 2017, Tri-State Garden filed a motion for continuance,

stating: (1) it had “not been able to locate all of the materials in their office

to properly respond to said Interrogatories” because it had been involved in a

large commercial litigation matter in another county that had required all of

its attention; and (2) its counsel had planned a family vacation which fell

during the time of the hearing. Motion for Continuance, 8/1/2017, at ¶¶ 4-5,

7.1 The following day, the trial court denied Tri-State Garden’s motion for a



____________________________________________


1  With respect to the date of the motion for continuance, the court noted the
following: “As indicated in an earlier opinion in this case, ‘the Motion for
Continuance was received at the Prothonotary’s office on the morning of July
31, 2017, but was not entered on the record until approximately 4:00 P.M. on
August 01, 2017, due to a procedural defect in [Tri-State Garden]’s Motion.’”
Trial Court Opinion, 8/14/2018, at 3 n.9, quoting Opinion and Order of Court,
at 6 n.2, dated September 28, 2017 (Ebert, J.).

     Moreover, in Tinsman’s response in opposition to Tri-State Garden’s
motion for continuance, it alleged, in relevant part:

       11. Undersigned counsel received no responses to the discovery
       requests, or any information from [Tri-State Garden]’s counsel,
       until July 27, 2017, when [Tri-State Garden] served upon
       undersigned counsel a courtesy copy of a Motion to Continue the
       August 2, 2017 hearing.      A copy of [counsel for Tri-State
       Garden’s] July 26, 2017 correspondence is attached and marked
       as Exhibit “A.”




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J-A06013-19



continuance and a hearing on Tinsman’s motion for sanctions proceeded as

scheduled.

             At this hearing, the court questioned [Tinsman]’s counsel as
       to the recovery amount being sought by [Tinsman], and
       [Tinsman]’s counsel responded that [its] records indicated
       approximately $73,837.34 in unpaid commissions and that
       Pennsylvania’s Sales Representative Act authorized double
       damages, reasonable costs and attorney’s fees where the
       nonpayment was willful. [Tinsman]’s counsel further noted that
       [Tinsman] was requesting additional attorney’s fees in connection
       with [Tinsman]’s motion to compel discovery, motion for
       sanctions, and appearance at the hearing then being held, in the
       amount of $1,470.00, as well as mileage expenses of [Tinsman]’s
       representative at the hearing, in the amount of $205.00. In
       addition, [Tinsman]’s counsel secured the admission into evidence
       of an exhibit relating to her firm’s attorney's fees, and requested
       that [Tri-State Garden]’s counterclaim in the case be dismissed.
       At the conclusion of the hearing, Judge Ebert asked [Tinsman]’s
       counsel to prepare a proposed order “that you think covers all of
       these various topics.”

Trial Court Opinion, 8/14/2018, at 3-4 (footnotes omitted).




____________________________________________


       12. [Tri-State Garden]’s counsel served said Motion via facsimile
       at 6:30 p.m. on July 26, 2017, and informed counsel that he would
       be on vacation starting July 27, 2017.

       13.  [Tri-State Garden]’s counsel did not seek undersigned
       counsel’s concurrence prior to filing said Motion.

Response in Opposition to Defendant’s Motion for Continuance, 8/2/2017, at
¶¶ 11-13.




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J-A06013-19



       Thereafter, the court entered an order,2 which: (1) granted Tinsman’s

motion for sanctions with entry of default judgment; (2) awarded judgment

in favor of Tinsman and against Tri-State Garden in the amount of

$183,753.78;3 (3) entered judgment in favor of Tinsman and against Tri-State

Garden on Tri-State Garden’s counterclaim; and (4) ordered Tri-State Garden

to pay Tinsman the amount of $230.05, representing cost of mileage for

Tinsman’s representative to appear at the hearing pursuant to Pa.R.C.P.

4019(g)(1). See Order of Court, 8/3/2017, at unnumbered 1-2.

       On August 11, 2017, Tri-State Garden filed a motion for reconsideration

and vacation of the court’s August 3, 2017, order. Tinsman filed a response

in opposition to Tri-State Garden’s motion on August 15, 2017. The trial court

did not rule upon Tri-State Garden’s motion within 30 days of the entry of the

order. Subsequently, on September 29, 2017, the court entered an order and

corresponding       opinion,      denying      Tri-State   Garden’s   motion   for

reconsideration/vacation.4 Tri-State Garden then filed a notice of appeal with


____________________________________________


2 We note the order was dated August 2, 2017, but docketed the following
day. We will use the later date in our analysis.

3 See Order of Court, 8/3/2017 (breaking down award of unpaid commissions,
prejudgment interest, exemplary damages, and attorney’s fees).

4  The order was dated one day earlier. In its opinion, the court analyzed the
five factors, set forth in Rohm and Hass Co. v. Lin, 992 A.2d 132, 142 (Pa.
Super, 2010), that must be considered when a discovery sanction is imposed
and concluded:



                                           -5-
J-A06013-19



this Court on October 30, 2017, which was docketed at No. 1686 MDA 2017.5

On February 2, 2018, Tinsman filed a motion to quash Tri-State Garden’s

appeal as untimely,


____________________________________________




       In this case, the entry of a default judgment in favor of [Tinsman]
       on all counts was clearly appropriate. The threat of sanctions
       contained in this court’s Order compelling discovery was
       insufficient to motivate [Tri-State Garden] to take any responsive
       action in this case. This court’s determination that sanctions were
       appropriate, and this court’s Order scheduling a hearing to
       determine what those sanctions would be, were insufficient to
       motivate [Tri-State Garden] to take any responsive action.
       Instead, [Tri-State Garden] simply asked for a continuance of that
       sanctions hearing at the last minute due to a preplanned vacation
       despite having notice of the sanctions hearing for months. Only
       the entry of a default judgment finally, and belatedly, impressed
       upon [Tri-State Garden] the understanding that this court’s
       Orders are not suggestions and that hearing dates are not
       optional.

Opinion and Order of Court, 9/29/2017, at 8-9.

5  Tri-State Garden’s concise statement was summarized by the trial court as
follows:

       In the appeal, in a statement of errors complained of on appeal,
       [Tri-State Garden] argued, inter alia, that [Tinsman]’s counsel
       had been aware that [Tri-State Garden] would be requesting a
       continuance of the August 2, 2017, hearing, that the court erred
       in “simply taking allegations proffered by [Tinsman]’s counsel as
       to the amounts of alleged commissions and the right of [Tinsman]
       to be awarded the aggregate amount without providing proof
       thereof after a trial of the issues of the case,” that “the calculation
       of damages formulated by [Tinsman]’s counsel was never pled nor
       produced or claimed until apparently for the first time on August
       2, 2017,” and that, “[a]dditionally, the award of Attorney’s fees
       without the ability of [Tri-State Garden] to contest the



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J-A06013-19



       conceding that [Tri-State Garden]’s appeal from the order entered
       on September 29, 2017, was timely, [but] contend[ing] that this
       order was a nullity in a jurisdictional sense and that the 30-day
       appeal period from the properly appealable judgment entered on
       August 3, 2017, had expired without being tolled and without an
       appeal having been taken.

Trial Court Opinion, at 8/14/2018, at 6 (footnotes omitted). A panel of this

court granted Tinsman’s motion on March 26, 2018, and quashed Tri-State

Garden’s appeal on May 8, 2018.6

       While its appeal was pending, Tri-State Garden filed a petition to open

default judgment on April 6, 2018. Tri-State Garden assailed the sanctions

imposed by the court and alleged the following, in pertinent part:

       19. Alternatively, [Tri-State Garden] herein asserts that counsel
       for [Tinsman] effected a fraud upon [Tri-State Garden], as a
       party, and a fraud upon the Court by counsel’s actions on August
       2, 2017 during the hearing of August 2 and whatever ex parte
       action was undertaken by [Tinsman]’s counsel following the
       adjournment of the hearing on August 2, 2017 at 9:25 a.m., which
       necessarily included the presentation to the Court of the Proposed
       Order which the Court thereupon signed.


____________________________________________


       reasonableness of the same was also entered in error by this
       Honorable Court.” [Tri-State Garden] further contended on its
       appeal that “[t]he Trial Court erred in simply accepting the
       damages in the aggregate, and in the specifics presented by
       [Tinsman]’s Counsel without requiring [Tinsman] to prove
       damages at trial.”

Trial Court Opinion, at 8/14/2018, at 5 (footnotes omitted).

6   The record does not reflect that Tri-State Garden filed a petition for
allowance of appeal in the Pennsylvania Supreme Court. See Trial Court
Opinion, at 8/14/2018, at 6.



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J-A06013-19



       20. Counsel for [Tinsman] effected a fraud on the Court, as well
       as a fraud on [Tri-State Garden] as follows:

          a. In representing to the Court at the hearing on August 2,
          2017 that damages in the amount of $73,837.34 were due
          and payable to [Tinsman] by [Tri-State Garden], when
          during the course of litigation no such information,
          calculation or demand had been made for a specific amount
          of damages (Commissions Due); and

          b. In representing to the Court that the awarded damages
          for the alleged unpaid commissions and doubling of the
          commissions as punitive damages under the Pennsylvania
          Sales Representative Act[7] were improper when counsel
          knew, or should have known, that Respondent had alleged
          only general damages in excess of $50,000.00 and not
          specific damages, and as required by relevant and pertinent
          case law as set forth in the Superior Court cases [Mother’s
          Restaurant, Inc. v. Krystlekiewicz, 861 A.2d 327 (Pa.
          Super. 2004) and King v. Fayette Aviation, 323 A.2d 286
          (Pa. Super. 1974)].

          c. Presenting or transmitting to the Honorable Judge a
          “Proposed Order” without service of said Proposed Order on
          counsel for [Tri-State Garden] as required by Pa.R.C.P. No.
          440(a)(1) so as to permit [Tri-State Garden]’s counsel to
          forward an objection to the Court of the content of said
          proposed Order; and

          d. Counsel for [Tinsman] violated Rules of Professional
          Conduct, Rule 3.3. Candor Toward the Tribunal, Subsection
          (d) which is as follows: “(d) In an ex parte proceeding, a
          lawyer shall inform the tribunal of all material facts known
          to the lawyer that will enable the tribunal to make an
          informed decision, whether or not the facts are adverse”;
          specifically by failing to inform [the trial court] of the
          principles of law set forth in the Krystlekiewicz and King


____________________________________________


7   43 P.S. §§ 1471-1478 (Commissioned Sales Representatives).




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J-A06013-19



          cases, supra, which holdings required that a trial be held
          on the issue of damages.

Petition to Open Default Judgment, 4/6/2018, at ¶¶ 19-20.8 A rule was issued

upon Tinsman to show cause why the relief requested should not be granted,

and Tinsman filed a response9 in opposition to Tri-State Garden’s petition on

May 16, 2018.

       The court conducted a hearing on Tri-State Garden’s petition to open on

June 5, 2018. The court noted: “Unfortunately, [Tri-State Garden] has failed

to pay for the notes of testimony from this proceeding to be transcribed;

however, neither the evidence nor the argument at the proceeding led the

court to conclude that [Tinsman]’s counsel committed a fraud upon [the trial


____________________________________________


8 During this time, the presiding judge retired and a new judge was reassigned
the matter.

9   As noted by the trial court:

       The response included an attachment in the form of an August 2,
       2017, letter from [Tinsman]’s counsel to [Tri-State Garden]’s
       counsel, enclosing “a copy of [her] correspondence of August 2,
       2017 to [the trial court] regarding the above-captioned matter,
       together with a Proposed Order and supporting documents, which
       was requested of [her] at the [August 2] hearing.” The response
       also sought attorney’s fees on behalf of [Tinsman], stating that
       “[t]he Petition to Open Default Judgment is a transparent attempt
       to circumvent the appellate court’s decision to quash [Tri-State
       Garden]’s untimely appeal, and [Tinsman] has spent considerable
       time and resources defending against [Tri-State Garden’s]
       attempts to avoid responsibility for judgment entered against it.

Trial Court Opinion, 8/14/2018, at 7-8 (footnotes omitted).



                                           -9-
J-A06013-19



court] or [Tri-State Garden].” Trial Court Opinion, 8/14/2018, at 8. The next

day, the court entered an order denying Tri-State Garden’s petition to open

default judgment.10 Order of Court, 6/6/2018. This appeal followed.11

       In its sole issue on appeal, Tri-State Garden contends the court abused

its discretion and/or erred as a matter of law by denying its petition to open

default judgment. See Tri-State Garden’s Brief at xvi. Specifically, Tri-State

Garden states the court erred in granting default judgment in favor of Tinsman

in the amount of $183,983.83 as a penalty for a discovery violation without

the court holding a separate hearing on the issue of damages. Id. at 1. Tri-

State Garden argues the court “erred in simply accepting the damages in the

aggregate, and in the specifics presented by [Tinsman]’s Counsel without

requiring [Tinsman] to prove said damages” at a hearing. Id. at 7. Tri-State

Garden alleges:

             The Petition to Open Default Judgment sets forth the
       averments in Paragraphs 19 and 20 that Counsel for the Appellee
       effected a fraud upon the Petitioner as a party and a fraud upon
       the [trial court] by counsel’s actions on August 2, 2017 in
       representing to the [c]ourt that the [c]ourt should award damages
       to [Tinsman] in a sum calculated by [Tinsman] to be $73,837.34

____________________________________________



10   The court also denied Tinsman’s request for attorney’s fees.

11  On July 3, 2018, the trial court ordered Tri-State Garden to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Tri-State Garden filed a concise statement on July 13, 2018. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 14, 2018.




                                          - 10 -
J-A06013-19



       and doubled as allegedly authorized by the Pennsylvania Sales
       Representative Act.

Id. at 11 (reproduced record citations omitted).12 Moreover, Tri-State Garden

claims Pennsylvania Rule of Professional Conduct 3.3 (candor toward the

tribunal) was violated when Tinsman’s counsel: (1) “failed to inform [the trial

court] that her client’s Amended Complaint had failed to aver damages in a

‘sum certain’ and/or that the proposed Order could seek damages in a ‘sum

certain;’”13 and (2) “refused to call to the [trial court’s] attention on August 2,

2017 the content of the letter she had received on July 26, 2017” from Tri-

State Garden’s counsel regarding its motion for a continuance.14

       Before we may dispose of the substantive merits of Tri-State Garden’s

appeal, we must address the procedural posture of this case. As noted above,

Tri-State previously filed an untimely appeal from the September 29, 2017,

order, denying its motion for reconsideration/vacation with respect to the

August 3, 2017, order and default judgment. That appeal was subsequently

quashed. Tri-State Garden is now appealing from the June 6, 2018, order

denying its petition to open the same default judgment.           The underlying

judgment, entered on August 3, 2017, granted Tinsman’s motion for

____________________________________________


12 Tri-State Garden states it was not provided a copy of the proposed order,
requested by the court for Tinsman’s counsel to draft, prior to the court signing
the document. See Tri-State Garden’s Brief at 11.

13   Id. at 14.

14   Id.

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J-A06013-19



sanctions, which was filed because Tri-State Garden failed to comply with the

court’s April 19, 2017, order compelling discovery responses on Tri-State

Garden’s part.   Accordingly, this was a judgment entered as a discovery

sanction.

      Pennsylvania Rule of Civil Procedure 4019 governs sanctions and

provides, in relevant part:

      (a) (1) The court may, on motion, make an appropriate order if

            (i) a party fails to serve answers, sufficient answers
            or objections to written interrogatories under Rule
            4005;

                                      …

            (vii) a party, in response to a request for production
            or inspection made under Rule 4009, fails to respond
            that inspection will be permitted as requested or fails
            to permit inspection as requested;

            (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

                                      …

         (2) an order refusing to allow the disobedient party to
         support or oppose designated claims or defenses, or
         prohibiting such party from introducing in evidence
         designated documents, things or testimony, or from
         introducing evidence of physical or mental condition;

         (3) an order striking out pleadings or parts thereof, or
         staying further proceedings until the order is obeyed, or

                                    - 12 -
J-A06013-19



         entering a judgment of non pros or by default against the
         disobedient party or party advising the disobedience;

                                       …

      (g)

         (1) Except as otherwise provided in these rules, if following
         the refusal, objection or failure of a party or person to
         comply with any provision of this chapter, the court, after
         opportunity for hearing, enters an order compelling
         compliance and the order is not obeyed, 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, incurred
         in obtaining the order of compliance and the order for
         sanctions, unless the court finds that the opposition to the
         motion was substantially justified or that other
         circumstances make an award of expenses unjust.

Pa. R.C.P. 4019.

      With respect to default judgments entered on the basis of discovery

sanctions, the trial court properly noted, “it is well settled that a petition to

open judgment is not a permissible vehicle to challenge an appealable

monetary judgment entered as a discovery sanction.” Trial Court Opinion,

8/14/2018, at 8, citing Livolsi v. Crosby, 495 A.2d 1384 (Pa. Super. 1985).

      In Livolsi, which is similar to the present matter, the plaintiffs filed a

writ of summons in trespass and assumpsit against the defendant.

Subsequently, they filed a motion to produce documents on the defendant,

which she failed to comply with and did not object to the motion. The plaintiffs

then filed a motion for sanctions, to which, once again, the defendant did not


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J-A06013-19



respond. The trial court entered an order pursuant to Rule 4019(c), directing

the defendant to produce documents. The defendant again did not comply.

The court then conducted a hearing on the motion, to which the defendant did

not appear for the proceeding. The court entered a final judgment against the

defendant. The defendant did not file a direct appeal but did file a petition to

open and/or strike the judgment. The court denied the petition to open and/or

strike the judgment. On appeal, a panel of this Court quashed the matter,

concluding:

            This Court has recently ruled that a judgment which is
      entered by the trial court pursuant to Pa.R.C.P. 4019(c)(3) as a
      sanction is not properly challenged by means of a petition to open.
      Miller Oral Surgery, Inc. v. Donald D. Dinello, D.M.D., 342
      Pa.Super. 577, 581, 493 A.2d 741, 743 (1985). There, the
      Superior Court found that:

         “a sanction order entering judgment pursuant to Pa.R.C.P.
         4019(c)(3) is not subject to a petition to open. There is no
         authority in the rules for such a petition, and orderly practice
         suggests that there should be none.”

      In that case, the appeal was found to be interlocutory since the
      judgment entered was for liability, damages to be determined at
      a later date.

      In the instant case, the trial court entered judgment in a dollar
      amount so that the judgment was final. Consequently, the appeal
      time began to run from the date of the entry of the judgment and,
      since no appeal was taken within 30 days from that date, the
      instant appeal is not properly before us.

      As was said in Miller Oral Surgery, Inc.

         “a sanction order entering judgment pursuant to Pa.R.C.P.
         4019(c)(3) is not subject to a petition to open. There is no
         authority in the rules for such a petition, and orderly practice
         suggests that there should be none.” In this respect, default

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J-A06013-19



          judgment entered pursuant to Pa.R.C.P. 4019(c)(3) is
          comparable to a judgment entered after hearing. A party
          may request the court to reconsider a sanction order
          entering a judgment, of course, but neither reconsideration
          nor refusal to reconsider will transform an interlocutory
          order into one that is final and appealable.”

       Here, the order entered was not interlocutory since it
       encompasses both liability and damages. However, the reasoning
       remains the same, where, as here, the action was taken pursuant
       to Pa.R.C.P. 4019(c) the order is not subject to attack by a petition
       to open and/or strike a judgment.

       Where, as here, a trial court has entered a sanction order for both
       liability and damages, the judgment then being final, the
       appropriate method for review would be an appeal within the time
       prescribed by Pa.R.App.P. 903.          The attempt to raise an
       appealable issue by filing a petition to open the judgment will not
       be allowed.

Livolsi, 495 A.2d at 1385.15

       Turning to the present matter, in accordance with Livolsi, Tri-State

Garden previously complied with precedence by filing an appeal; however,

that appeal was deemed untimely by this Court and was quashed. Tri-State

Garden now attempts to circumvent that decision by filing a petition to open

the judgment.      Such an attempt, to raise an appealable issue by filing a




____________________________________________


15 See also Simpson v. Allstate Ins. Co., 504 A.2d 335 (Pa. Super. 1986)
(en banc); Edney v. Se. Pa. Transp. Auth., 514 A.2d 194 (Pa. Super. 1986).



                                          - 15 -
J-A06013-19



petition to open judgment based on discovery sanctions, is prohibited.16 See

id. Accordingly, we are compelled to quash this appeal.17

       In a related matter, in its appellee’s brief, Tinsman requested that this

Court award it reasonable costs, attorney’s fees, and delay damages pursuant

to Pa.R.A.P. 2744.18      See Tinsman’s Brief at 12-14. Based on the unique

____________________________________________


16  See Trial Court Opinion, 8/14/2018, at 9-10 (“In the present case, upon
consideration of the history recited above and the evidence and argument
presented at the hearing on June 5, 2018, the court was not persuaded that
the advocacy of [Tinsman’s] counsel on behalf of her client in any way
constituted a fraud upon either [the trial court] or [Tri-State Garden]. The
court was, on the contrary, constrained to conclude, as contended by
[Tinsman], that [Tri-State Garden]’s petition to open represented an
impermissible ‘attempt to circumvent the appellate court’s decision to quash
[Tri-State Garden]’s untimely appeal.’ In this context, [Tri-State Garden]’s
petition was incompatible with the proscription against utilizing a petition to
open to challenge an appealable monetary judgment entered as a discovery
sanction, the doctrine of res judicata, and the doctrine of the law of the
case.”).

17 Based on our disposition, we need not address the merits of Tri-State
Garden’s argument further.

18   Rule 2744 states:

       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



                                          - 16 -
J-A06013-19



procedural nuance of this appeal, it is not apparent to us that Tri-State

Garden’s “appeal is frivolous or taken solely for delay” or that its conduct is

“dilatory, obdurate or vexatious.”         Pa.R.A.P. 2744.   Accordingly, we deny

Tinsman’s request for reasonable costs, attorney’s fees, and delay damages.

       Appeal quashed.       Tinsman’s request for reasonable costs, attorney’s

fees, and delay damages denied.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/24/2019




____________________________________________


       may remand the case to the trial court to determine the amount
       of damages authorized by this rule.

Pa.R.A.P. 2744.

                                          - 17 -
