J-A04041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.T.E.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

D.S.E.

                         Appellant                 No. 1107 MDA 2017


                 Appeal from the Order Entered June 13, 2017
              In the Court of Common Pleas of Schuylkill County
                   Domestic Relations at No(s): 2016-50628
                           PACSES NO. 241115910

D.S.E.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

C.T.E.

                         Appellee                  No. 1107 MDA 2017


                  Appeal from the Order Dated June 13, 2017
              In the Court of Common Pleas of Schuylkill County
                   Domestic Relations at No(s): 2016-50682
                            PACSES NO. 699115940


BEFORE: STABILE, J., NICHOLS, J., AND RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                          FILED MARCH 27, 2018

     Appellant, D.S.E. (“Father”), appeals from the order dated June 13,

2017, entered in an action for support of the parties’ four minor children.

Appellee, C.T.E. (“Mother”), has also filed a motion to quash the appeal.

After careful review, we affirm the trial court’s entry of a sanction against


*Retired Senior Judge Assigned to the Superior Court
J-A04041-18



Father in the form of establishing his income at $4,388.00 per month, but

we remand this case to the trial court and vacate the orders of January 6,

2017, March 2, 2017, and June 13, 2017, for the limited purpose of allowing

the trial court to clarify whether Father’s specified income was gross or net

and to allow any necessary recalculation of the child support award as a

result of that clarification. Mother’s motion to quash is denied.

      On May 4, 2016, Mother filed a complaint for child support against

Father. On May 25, 2016, Father filed a complaint for alimony pendente lite.

      On August 2, 2016, Mother served Father with her first set of

interrogatories and her first request for production of documents. Pursuant

to Pa.R.C.P. 4006 and 4009.12, Father was required to answer these

requests within thirty days.   Having received no response, on October 19,

2016, Mother filed a motion to compel discovery.        On October 21, 2016,

Father answered the interrogatories but produced only a fraction of the

items in Mother’s request for production of documents.       On November 16,

2016, the trial court entered an order requiring Father to answer Mother’s

discovery requests within twenty days or be subject to sanctions. Mother’s

counsel contacted Father’s counsel about the missing documents on

November 3 and 17, 2016. On November 23, 2016, Mother’s counsel sent

an e-mail to Father’s counsel itemizing missing documents. On December 7,

2016, Father filed objections to Mother’s request for production of

documents.




                                     -2-
J-A04041-18



      On December 15, 2016, Mother filed a motion for sanctions for

Father’s failure to respond to discovery.    Father never responded to this

motion.   On January 6, 2017, the trial court entered an order imposing

sanctions, including a sanction establishing Father’s income at $4,388 per

month.

      On March 2, 2017, the trial court dismissed Father’s complaint for

alimony pendent lite and ordered Father to pay $1,232 per month in

support. This child support obligation was based upon the monthly income

ordered for Father of $4,388 as a sanction in the January 6th order.

      Thereafter, Father filed exceptions to the support order, and, on

June 13, 2017, the trial court entered an order overruling Father’s

exceptions.   In that order, the trial court explained that its reasons for

entering the sanctions on January 6, 2017, were:

      because of [Father’s] dilatory conduct in failing to timely provide
      the requested discovery regarding his income and expenses and
      in light of his failure to timely respond to counsel’s repeated
      requests for said information after we had entered an Order
      dated November 16, 2016 directing him to produce the
      requested discovery without objection within twenty days, which
      he ignored, other than to file a dilatory Answer and Objections,
      and also in failing to respond to a further Motion for Sanctions
      establishing his income at $4,388.00 per month; by failing to
      respond to said Motion, [Father] waived any argument he may
      have otherwise [had] as to whether that income was gross
      business receipts, a monthly gross income figure or a monthly
      net income figure.

Trial Ct. Order, 6/13/17, at 1-2.




                                     -3-
J-A04041-18



      On July 10, 2017, Father simultaneously filed a notice of appeal and

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

(“1925(b) Statement”). On July 19, 2017, the trial court entered an order

that its order of June 13, 2017, would serve as its opinion pursuant to

Pa.R.A.P. 1925(a).

      By order of August 2, 2017, this Court directed Father to show cause

as to why this appeal should not be quashed as having been taken from an

order that is interlocutory and not appealable.       See Pa.R.A.P. 341(a) (“an

appeal may be taken as of right from any final order of a government unit or

trial court”). Father filed a timely response, arguing why the subject order is

final and appealable, as follows:

      With the entry of [the trial court]’s Order of June 13, 2017, the
      Interim Support Order became a Final Support Order, and a Final
      Order as it relates to the Judge’s prior Sanctions Orders, and
      with the entry of the Order of June 13, 2017 the instant support
      matter became final, since it disposed of all claims of all of the
      parties, and there are no claims pending before the Court of
      Common Pleas of Schuylkill County.

Father’s Answer to Order of Aug. 2, 2017, 8/10/17, at 2.          Thereafter, this

Court discharged the show cause order and referred the appealability issue

to this merits panel.

      Pursuant to Pa.R.A.P. 341(b)(1), “[a] final order is any order that

disposes of all claims and of all parties.” Since the June 13 order disposes of

all claims and all parties, Father is correct that it is a final, appealable order.

      On August 23, 2017, Mother filed with this Court what she labelled to

be a “motion to quash appeal.” More accurately, Mother is not requesting

                                       -4-
J-A04041-18



that the entire appeal be quashed but that any issues raised in Father’s brief

that were not raised in his Statement not be considered by this Court.

Based upon our review of Father’s 1925(b) Statement and of the statement

of questions involved in Father’s Brief pursuant to Pa.R.A.P. 2116, we find no

issues raised in Father’s Brief that were not also preserved in his 1925(b)

Statement.1

       Father now raises four issues for our review:

       I.    Did the [trial] court err and abuse its discretion by entering
       an order sanctioning [Father] for allegedly[2] failing to fully and
       completely respond to [Mother]’s discovery requests, without
       providing [Father] with the opportunity to argue the merits of
       the motion for sanctions, and without requiring that [Mother]
       follow the strict procedure, dealing with motions practice in
       Schuykill County.

       II.   Did the [trial] court err and abuse its discretion by
       imposing the severe sanction of attributing an inflated earning
       capacity to [Father], as a sanction for [Father]’s alleged failure
       to file full and complete answers to [Mother]’s discovery
       requests, and did the [trial] court impose the sanction without
       evaluating the factors which this [C]ourt has indicated must be
       evaluated before sanction may be imposed, including whether
       the violation of the discovery rules was willful, whether the
       alleged failure to respond was in bad faith, whether [Mother] had
       been prejudiced as a result of [Father]’s alleged failure to fully
       and completely respond to the discovery requests, the number
       of prior violations of the discovery rules, whether the alleged
____________________________________________


1 Moreover, since any issues not included in a statement of matters
complained of on appeal are deemed waived pursuant to Pa.R.A.P.
1925(b)(4)(vii), we would not consider any such issues, in any case.
2 Throughout his brief to this Court, Father “respectfully submits that he did
fully and completely answer [Mother]’s discovery requests[.]” Father’s Brief
at 21; see also id. at 9-10, 14.



                                           -5-
J-A04041-18


     failure to respond could be cured, the nature and severity of the
     discovery violation, and the importance of the precluded
     evidence in light of the failure to comply?

     III. Did the [trial] court err and abuse its discretion by sua
     sponte imposing sanctions by its sanctions order of January 6,
     2017, although the [trial] court had previously directed, by its
     order of December 28, 2016, that the support paperwork be
     returned to the domestic relations office, in light of [Father]’s
     answers and objections filed in response to [Mother]’s discovery
     requests?

     IV.   Did the [trial] court err and abus[e] its discretion by
     imposing, as a sanction, an earning capacity of $4,388.00 on
     [Father], without indicating whether this was [Father]’s gross or
     net income, which the support hearing officer indicated he was
     obliged to accept, without permitting [Father] to offer any
     evidence whatsoever to establish his income and expenses.

Father’s Brief at 5-6 (suggested answers omitted).

     Our standard of review is as follows:

     Generally, imposition of sanctions for a party’s failure to comply
     with discovery is subject to the discretion of the trial court, as is
     the severity of the sanctions imposed.           The trial court’s
     discretion, however, is not unfettered.        When a discovery
     sanction is imposed, the sanction must be appropriate when
     compared to the violation of the discovery rules.           Because
     dismissal is the most severe sanction, it should be imposed only
     in extreme circumstances, and a trial court is required to balance
     the equities carefully and dismiss only where the violation of the
     discovery rules is willful and the opposing party has been
     prejudiced.

Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d

916, 926 (Pa. Super. 2011) (internal brackets, citations, and quotation

marks omitted).

     In the current action, Father contends that:

     the [trial] court erred and abused its discretion by entering an
     order sanctioning [him] for allegedly failing to fully and


                                     -6-
J-A04041-18


       completely respond to [Mother]’s discovery requests, without
       providing [him] with the opportunity to argue the merits of the
       motion for sanctions, and without requiring that [Mother] follow
       the strict procedures under the Schuylkill County Rules of Civil
       Procedure, dealing with motions practice in Schuylkill County.

                                   *     *    *
       The [trial] court erred and abused its discretion by imposing the
       severe sanction of attributing an inflated earning capacity to
       [Father], as a sanction for [Father]’s alleged failure to file full
       and complete answers to [Mother]’s discovery requests, without
       carefully evaluating the factors which this Court has clearly
       indicated must be evaluated before sanctions may be imposed,
       including whether the violation of the discovery rules was willful,
       whether the alleged failure to respond was in bad faith, whether
       [Mother] had been prejudiced as a result of [Father]’s alleged
       failure to fully and completely respond to the discovery requests,
       the number of prior violations of the discovery rules, whether the
       alleged failure to respond could be cured, the nature and
       severity of the discovery violation, and the importance of the
       precluded evidence in light of the failure to comply. . . .

       [I]t is also clear that the [trial court is] essentially “throwing him
       out of Court”, without taking into consideration the factors which
       have been repeatedly enunciated by this Court, when the [trial
       c]ourts are determining a sanction, warrant this Court’s
       reversing the [trial c]ourt’s Order of January 6, 2017 imposing
       sanctions, and remanding the instant matter to the Court of
       Common Pleas of Schuylkill County for a new Support Hearing.

Father’s Brief at 18, 21-22.3

       Mother answers:



____________________________________________


3 We combine our analysis of Father’s first and second issues raised on
appeal, because both concern whether the trial court erred and abused its
discretion in granting Mother’s motion for discovery sanctions and imposing
a sanction of a specific monthly income without first allowing a hearing on
either the motion for sanctions or the underlying child support claim. See
Father’s Brief at 18-25.



                                           -7-
J-A04041-18


       The trial court properly entered an order imposing sanctions on
       [Father] for his repeated and willful failure to cooperate with
       discovery and with an order compelling him to provide evidence
       of his income and expenses without a hearing when [Father] also
       failed to answer the motion for sanctions or request a hearing
       pursuant to the Pennsylvania Rules of Civil Procedure and the
       Schuylkill County local rules, thereby waiving his objections.

Mother’s Brief at 18.

       According to Pa.R.C.P. 208.3(b):

       A court, by local rule, numbered Local Rule 208.3(b), may
       impose requirements with respect to motions listed in the rule
       for the filing of a response, a brief or both. Where a response is
       required, any party opposing a motion governed by Local Rule
       208.3(b) shall file the response within twenty days after service
       of the motion, unless the time for filing the response is modified
       by court order or enlarged by local rule.

The applicable local rule, here, states:

       Every motion not certified as uncontested shall be accompanied
       by a memorandum containing a concise statement of the legal
       contentions and authorities relied upon in support of the motion
       and an affidavit of service upon the party against whom relief is
       sought, or to his attorney.

       Any party opposing the motion shall file and serve such answer
       or other response that may be appropriate, a memorandum in
       opposition, and an affidavit of service upon the other party
       within twenty (20) days after service of the originating motion
       and supporting brief, unless the Pennsylvania Rules of Civil
       Procedure mandate a period of time different than twenty (20)
       days. In the absence of a timely response, the motion
       may be treated as uncontested. The Court may require or
       permit further briefing, if appropriate.

Schuylkill Cty. R.C.P. 208.3(b) (emphasis added).4
____________________________________________


4 It is undisputed that this local rule of civil procedure applies to Mother’s
motion for sanctions, as both parties cite to it. Father’s Brief at 19; Mother’s
Brief at 18-20, 22-23.



                                           -8-
J-A04041-18



     Here, Father never filed an answer to Mother’s motion for sanctions.

By his own admission, he did not follow the local rules of civil procedure,

Father’s Brief at 19. Hence, the trial court properly treated Mother’s motion

as uncontested. See Schuylkill Cty. R.C.P. 208.3(b). Since the motion was

deemed uncontested, there was no reason for the trial court to schedule a

hearing on the motion or to evaluate any factors prior to imposing sanctions.

     Father also contends that the trial court should not have considered

Mother’s motion for sanctions, because it was not accompanied by the

memorandum required by Schuylkill Cty. R.C.P. 208.3(b). Father’s Brief at

19. He argues:

     [A]lthough the Schuylkill County Local Rule did provide that a
     Motion had to be responded to, since the Court of Common Pleas
     of Schuylkill County ignored the Rule dealing with the
     requirements of a movant who files a motion, which includes the
     filing of a brief, and Cove Centre, Inc.[ v. Westhafer Constr.,
     965 A.2d 259 (Pa. Super. 2009),] makes it clear that Pa. R.C.P.
     208.3 and Pa. R.C.P. 4019 effectively mandate oral argument
     whenever a discovery motion is neither uncontested nor facial
     meritless, [Father] respectfully submits that the [trial] court
     erred and abused its discretion by imposing the severe sanction
     of attributing an income to him for support guideline purposes,
     without allowing him to present testimony on his true earning
     capacity.

Id. at 20-21.

     However, since Father never responded to Mother’s motion for

sanctions, he never raised this claim before the trial court.    “Issues not

raised in the lower court are waived and cannot be raised for the first time




                                    -9-
J-A04041-18



on appeal.”      Pa.R.A.P. 302(a).       Consequently, this challenge is waived.5

Accordingly, Father’s first and second issues are meritless.

       Additionally, Father alleges that the trial court abused its discretion by

imposing sanctions “sua sponte.”               Nevertheless, the trial court did not

impose sanctions sua sponte. Mother motioned for sanctions, and the trial

court’s imposition of sanctions against Father was in direct response to

Mother’s motion. Father’s third issue is therefore meritless.

       Finally, Father argues that the trial court “erred and abused its

discretion by imposing a sanction which provided that, for purposes of the

support action, [Father]’s income was established at $4,388.00, without

indicating whether this was his gross or net income[.]” Father’s Brief at 27.

Father is correct that the trial court should have specified in its sanctions


____________________________________________


5 Assuming this issue were not waived, Father still misapplies Cove Centre,
Inc. v. Westhafer Constr., 965 A.2d 259 (Pa. Super. 2009). While Cove
Centre held that “both Rule 208.3 and Pa.R.C.P. 4019 effectively mandate
oral argument whenever a discovery motion is neither uncontested nor
facially meritless,” id. at 263, Father disregards the fact Mother’s motion for
sanctions was deemed uncontested by operation of Schuylkill Cty. R.C.P.
208.3(b), due to Father’s failure to file a timely response.

Moreover, the procedural history in Cove Centre can be distinguished from
the current action in a number of ways. In Cove Centre, there was no prior
order compelling discovery, the motion for discovery sanctions was granted
three days after it was filed, and there was no record as to whether the
motion for discovery sanctions was ever served upon the sanctioned party.
965 A.2d at 264. By contrast, here, there was an earlier order compelling
discovery and a basis upon which to conclude that the sanctioned party was
aware of the motion and had ample opportunity to respond.




                                          - 10 -
J-A04041-18



order whether Father’s stated income of $4,388 was gross or net income,

because Pa.R.C.P. 1910.16-2 requires that “the amount of support to be

awarded is based upon the parties’ monthly net income.” Hence, we remand

this case to the trial court and vacate the orders of January 6, 2017, March

2, 2017, and June 13, 2017, for the limited purpose of allowing the trial

court to clarify whether the income specified for Father in the January 2017

discovery sanction order was gross or net and to allow any necessary

recalculation of the child support award as a result of that clarification.

      Motion to quash denied. Order affirmed in part and vacated in part.

Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




                                     - 11 -
