J.A19040/14


                                  2015 PA Super 35

DINA 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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