J. S47018/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

V.E.B.                                   :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  v.                     :
                                         :
A.N.W.,                                  :          No. 126 EDA 2017
                                         :
                       Appellant         :


             Appeal from the Order Dated November 30, 2016,
           in the Court of Common Pleas of Montgomery County
                      Civil Division at No. 2009-23833


BEFORE: GANTMAN, P.J., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 22, 2018

     A.N.W. appeals from the November 30, 2016 order entered in the

Court of Common Pleas of Montgomery County that awarded attorney’s fees

to appellee, V.E.B. (“Mother”), in the amount of $10,000 as a discovery

sanction against appellant in the underlying support action. We quash.

     The trial court set forth the following:

                 This appeal is from an Order awarding
           [Mother’s] attorney’s fees from [appellant] for
           conduct involved in the resolution of issues arising
           from support of the parties’ minor child. The parties
           had entered into an agreed order of support in
           February 26, 2015.          In September of 2015,
           [appellant] filed a Petition to Modify the agreed upon
           order. On [sic] [Mother] filed a Motion to Dismiss
           the Petition, because inter alia, relevant responses
           to Requests for Production had not been provided by
           [appellant] despite an order having been entered to
           compel that discovery. [Appellant] and his counsel
           failed to appear at a hearing on March 30, 2016
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          before a discovery master to address [appellant’s]
          failure to respond to the Requests for Production.
          The Motion to Dismiss further stated that on June 7,
          2016 the Honorable Stephen Barrett entered an
          Order requiring [appellant] to comply with [Mother]’s
          request for [p]roduction within twenty days and
          noting that failure to do so could result in sanctions.

                On July 14, 2016, a hearing was held on the
          Exceptions and on the Motion to Dismiss the
          Exceptions, which included a request by [Mother] for
          attorney’s fees. The hearing was scheduled to begin
          at 9:30 a.m. Counsel whose appearance had been
          entered for [appellant], Mr. Abdul-Rahman, did not
          attend this hearing. [Appellant] informed the court
          that Mr. Abdul-Rahman would not be coming to the
          hearing, but Attorney Chisholm would attend on his
          behalf.   Mr. Chisholm was not present at 9:30.
          [Appellant]    then   informed   the   Court   that
          Mr. Chisholm was appearing at another hearing in
          Montgomery County. The Court waited until 9:43,
          and then opened court. Mr. Chisholm appeared at
          10:00 a.m.

                 At this hearing, Mr. Machles, counsel for
          [Mother], informed the court that a motion to modify
          custody was pending, which could affect the support
          ordered. Based upon this information, this court
          granted      the     Motion      to   Dismiss      the
          Exceptions.[Footnote 1] At this hearing [Mother]’s
          counsel also directed the court to the requested
          attorneys’ fees, and submitted an affidavit in support
          of these fees. In response, Attorney Chisholm noted
          that “as related to the fees, Attorney Abdul-Rahman
          is probably more in line to deal with the
          appropriateness of what happened.”            Attorney
          Chisholm requested that Attorney Abdul-Rahman be
          given a week to respond to the request. The Court
          then told Attorney Chisholm that this response was
          expected from Attorney Abdul-Rahman a week from
          that day, and Attorney Chisholm responded, “[h]e
          will send it to Your Honor . . . . Absolutely[.]” The
          response to the request for attorney’s fees was not
          timely received within one week.[Footnote 2] After


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                more than five months of waiting passed, on
                November 30, 2016, this Court granted [Mother]’s
                request for attorney’s fees, awarding an amount
                found reasonable, which was less than the amount
                requested.

                      [Footnote    1]     The   Order    entered
                      dismissing the exceptions provided that
                      the exceptions were dismissed without
                      prejudice for [sic] any party to seek relief
                      following a change in custody or any
                      other circumstances.

                      [Footnote 2] The undersigned had no
                      “ex parte”       communication      with
                      [Mother]’s counsel. After months passed
                      without the promised response from
                      Attorney Abdul-Rahman, Mr. Machles did
                      contact chambers to check on the status
                      of the motion. Court staff did eventually
                      contact Attorney Abdul-Rahman’s office
                      to check whether his response would be
                      sent, to no avail.

                       This award of attorney’s fees was appealed.
                Pursuant to Pa.R.A.P. 1925(b), this Court ordered
                [appellant] to file of record and to serve this Court a
                Concise Statement of Errors Complained of On
                Appeal no later than twenty one days after the date
                the 1925(b) Order was docketed. [Appellant] timely
                filed this statement and listed ten alleged errors.

Trial court opinion, 2/17/17 at 1-3 (record citations omitted; some brackets

in original).

      The record reflects that on February 17, 2017, this court ordered

appellant to show cause within ten days of the date of that order as to the

appealability of the November 30, 2016 order.           (Order of court, 2/17/17.)

In his timely response, appellant responded, in relevant part, as follows:



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                 As Senior Judge Tilson points out in his trial
           court Opinion, the award of attorney’s fees was due
           to the lower court’s finding [appellant] in contempt
           of a discovery order.        [See trial court opinion,
           2/17/17], at 3, 5[]. Thus, in this case, the award of
           attorney’s fees is final and appealable.          See
           Wolanin v. Hashagen, 829 A.2d 331, 332-33
           (Pa.Super. 2003) (“Rather, we conclude that, for a
           contempt order to be properly appealable, it is only
           necessary that the order impose sanctions on the
           alleged contemnor, and no further court order be
           required before the sanctions take effect”). See
           also Diamond v. Diamond, 792 A.2d 597, 600
           (Pa.Super. 2002) (“a contempt order is appealable
           because it is a final order imposing sanctions”).

Correspondence in response to 2/17/17 show-cause order, 2/27/17.

     The record reflects that this court discharged the show-cause order on

February 28, 2017; referred appellant’s appeal to this merits panel; and

advised appellant that this panel may revisit the appealability issue and,

therefore, that appellant should be prepared to address the issue. (Order of

court, 2/28/17.)   Because “[t]he appealability of an order goes directly to

the jurisdiction of the [c]ourt asked to review the order[,]” Takosky v.

Henning, 906 A.2d 1255, 1258 (Pa.Super. 2006), we must determine the

appealability of the November 30, 2016 order that appellant wishes to

appeal.

     In his response to this court’s show-cause order, as well as in his brief

to this court, appellant maintains that the November 30, 2016 order

awarding Mother attorney’s fees is appealable because it imposed sanctions

following a contempt finding. (See correspondence in response to 2/17/17



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show-cause order, 2/27/17; see also appellant’s brief, passim.) Appellant

stated that the proceeding that resulted in the trial court’s November 30,

2016 order was a contempt proceeding when the record demonstrates that it

was actually a hearing on Mother’s exceptions to appellant’s petition to

modify support or limit support in the underlying child-support action during

which Mother requested attorney’s fees due to appellant’s failure to comply

with discovery requests.     (See Mother’s “motion in limine to dismiss

petition to modify support or limit same with memorandum of law,” 7/11/16;

see also notes of testimony, 7/14/15, passim.) Additionally, we note that

the trial court’s opinion, with respect to its reasoning for entering the

November 30, 2016 order awarding attorney’s fees, as well as the record,

demonstrates that the trial court awarded Mother attorney’s fees as a

discovery sanction pursuant to Pa.R.Civ.P. 4019(a)(1)(viii). (See trial court

opinion, 2/17/17 at 5; see also Mother’s “motion in limine to dismiss

petition to modify support or limit same with memorandum of law,” 7/11/16;

notes of testimony, 7/14/15, passim.)

     It is well settled that a contempt order that imposes sanctions

constitutes a final, appealable order. N.A.M. v. M.P.W., 168 A.3d 256, 260

(Pa.Super. 2017) (citation omitted).    It is also well settled that an order

imposing discovery sanctions is not appealable until final judgment in the

underlying action.   West v. Andersen, 626 A.2d 606, 608 (Pa.Super.

1993). Here, we have reviewed the voluminous certified record in this case,



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and again, it reveals that the trial court entered the November 30, 2016

order awarding attorney’s fees as a discovery sanction against appellant.

Additionally, nothing in the certified record before us indicates that the trial

court entered final judgment in the underlying support action prior to entry

of that order.    Therefore, because no final judgment in the underlying

support action had been entered prior to the entry of the November 30,

2016 order that awarded attorney’s fees to Mother as a discovery sanction

against appellant, it is not a final, appealable order. See id.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/22/18




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