J-A25041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOANNE F. MAHONSKI, ET AL.,               :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 CAROLINE M. ENGEL, ET AL.                 :        No. 302 MDA 2019

               Appeal from the Order Entered January 18, 2019
              in the Court of Common Pleas of Lycoming County
                 Civil Division at No(s): CV-2018-0000938-EX

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 27, 2019

      Joanne F. Mahonski, et al. (collectively, “Plaintiffs”), appeal from the

Order sustaining the Preliminary Objections filed by Caroline M. Engel, et al.

(collectively, “Engel”), wherein Engel sought to uphold a prior award, by this

Court, of attorneys’ fees against Plaintiffs and in favor of Engel. We affirm the

Order, and vacate the underlying Judgment, in part.

      In August 2011, and August 2012, respectively, Plaintiffs (most of whom

are Engel’s numerous siblings) filed two separate Complaints against Engel.

Plaintiffs alleged, inter alia, breach of contract/quiet title, concerning a 1990
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family real estate transaction, and the mineral rights to a parcel of unimproved

land.1

         Following a muddled procedural history that is not relevant to this

appeal, in 2015, the trial court granted a Motion for summary judgment filed

by Engel, and dismissed several of Plaintiffs’ claims.      As to the remaining

claims, a jury later rendered a verdict in favor of Engel in May 2015. Plaintiffs

then filed a Post-trial Motion, asserting, for the first time, that the trial court

lacked subject matter jurisdiction to adjudicate the cases, for the failure to

join an indispensable party.2 The trial court denied the Post-trial Motion.

         Plaintiffs appealed, and filed a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal, which raised 87 separate

allegations of trial court error. In its responsive Rule 1925(a) Opinion, the

trial court recommended that this Court find that Plaintiffs waived all of their

issues, due to the “abusive” number of claims of error they raised in their

Concise Statement, which were “overly vague, redundant [and] prolix.” This

Court affirmed, agreeing with the trial court. Mahonski v. Engel, 145 A.3d


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1  Counsel for Plaintiffs, Leo F. Klementovich, Esquire (“Attorney
Klementovich”), has an interest in the property at issue.             Attorney
Klementovich also represents Plaintiffs in connection with the instant appeal.

2 Additionally, in November 2015, Attorney Klementovich filed a Praecipe with
the trial court Prothonotary (hereinafter, the “Praecipe to Discontinue”). He
requested discontinuance of the action insofar as it pertained to only one of
the plaintiffs, Diane K. Masters (“Masters”), as Administratrix of the Estate of
Robert C. Mahonski and as Executrix of the Estate of Eleanor B. Mahonski.
Engel did not object to this Praecipe.

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175 (Pa. Super. 2016) (hereinafter “Mahonski I”). Plaintiffs filed a Petition

for allowance of appeal, which the Pennsylvania Supreme Court denied.

Mahonski v. Engel, 145 A.3d 175 (Pa. 2017).

      Shortly thereafter, Plaintiffs filed a “Petition to Open or Vacate,” wherein

they again challenged the trial court’s subject matter jurisdiction. Following

the trial court’s denial of this Petition, Plaintiffs appealed. In response, Engel

filed a Petition for Counsel Fees (“Petition for Fees”), asserting that the appeal

was frivolous, and that Engel had incurred fees in the amount of $4,416.94,

for which Plaintiffs should be held responsible. The trial court requested that

this Court grant Engel’s Petition for Fees, opining that Plaintiffs’ claim was

frivolous and “at the pinnacle of absurdity.” Statement in Lieu of Opinion,

10/24/17, at 1 (unnumbered).

      In May 2018, this Court affirmed and (1) rejected Plaintiffs’ challenge to

subject matter jurisdiction; and (2) awarded Engel attorneys’ fees in the

amount of $4,416.94, pursuant to Pa.R.A.P. 2744 (providing that an award of

attorneys’ fees is permissible when an appellate court 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.”).    Mahonski v. Engel, 192 A.3d 269 (Pa. Super. 2018)

(unpublished Judgment Order) (hereinafter “Mahonski II”). Notably to the

instant appeal, neither the trial court nor this Court held a hearing concerning




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the Petition for Fees. On June 29, 2018, the trial court Prothonotary issued a

Notice of Entry of Judgment to Plaintiffs and Attorney Klementovich.

      Plaintiffs did not seek allowance of appeal with our Supreme Court in

Mahonski II. Rather, on July 17, 2018, they filed a Petition (“Petition to

Strike”) requesting that the trial court strike or vacate the award of attorneys’

fees to Engel, and enter an award of attorneys’ fees in favor of Plaintiffs.

Plaintiffs also challenged, on procedural due process grounds, the award of

attorneys’ fees to Engel, where no hearing had been conducted on the matter.

Engel filed Preliminary Objections in opposition to the Petition to Strike.

      By an Order entered on January 18, 2019, the trial court denied

Plaintiffs’ Petition to Strike.   The court opined in this Order that it lacked

jurisdiction to entertain Plaintiffs’ challenge, where they had not sought

reargument concerning Mahonski II, and/or allowance of appeal with the

Supreme Court. See Order, 1/18/19, at 2 (unnumbered) (stating that “[a]

lower court is without power to modify, alter, amend, set aside or in any

manner disturb or depart from [a] judgment of a reviewing court as to any

matter decided on appeal.” Blymiller v. Baccanti, 344 A.2d 680, [681] …

[(Pa. Super. 1975)]. Assuming arguendo that collateral relief was a viable

option[,] … Plaintiffs’ Petition [to Strike] … does not allege sufficient facts for

the [trial c]ourt to grant any form of relief.”). Plaintiffs timely filed a Notice

of Appeal, followed by a court-ordered Concise Statement of errors




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complained of on appeal.         The trial court then issued a Pa.R.A.P. 1925(a)

Opinion.

       On appeal, Plaintiffs present the following issues for our review:

       1. Whether the lower court erred in dismissing [Plaintiffs’]
          [P]etition [to Strike] without conducting a hearing on the
          merits[?]

       2. Whether the lower court erred in refusing to vacate the
          [J]udgments of [the] Superior Court against [Plaintiffs], which
          were entered in violation of their constitutional right to due
          process of law[?]

       3. Whether the lower court erred in granting [Engel’s]
          [P]reliminary [O]bjections[,] and denying [Plaintiffs’]
          [P]reliminary [O]bjections to said [P]reliminary [O]bjections,
          causing a false [J]udgment against … Masters … to remain on
          the docket of the Lycoming County Court of Common Pleas[?]

Brief for Plaintiffs at 5 (issues renumbered).

       We will address Plaintiffs’ first two issues together, as they are related.

Plaintiffs argue that this Court’s Judgment Order in Mahonski II, which

awarded attorneys’ fees to Engel, is invalid and unenforceable, as it was

entered in violation of Plaintiffs’ right to procedural due process and a hearing.

See id. at 18-25. In support, Plaintiffs rely on this Court’s decision in Kulp

v. Hrivnak, 765 A.2d 796 (Pa. Super. 2000), which applied the attorneys’

fees provision of the Judicial Code, 42 Pa.C.S.A. § 2503,3 and stated that “[i]n



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3Section 2503 authorizes an award of reasonable attorneys’ fees, in relevant
part, to “[a]ny participant who is awarded counsel fees as a sanction against
another party for dilatory, obdurate or vexatious conduct during the pendency
of a matter.” 42 Pa.C.S.A. § 2503(7).

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determining the propriety of an award of attorneys’ fees based upon a

litigant’s bad faith, and [where] the record is unclear as to facts surrounding

the litigant’s conduct, a hearing must be held to develop the record on the

bad faith issue.” Kulp, 765 A.2d at 799-800 (footnote omitted). Plaintiffs

urge that the Mahonski II panel improperly acted as a fact-finder in

determining that an award of fees was appropriate. Brief for Plaintiffs at 20.

Plaintiffs further contend that the panel failed to specify the precise basis upon

which an award of attorneys’ fees to Engel was warranted, e.g., bad faith by

Plaintiffs or frivolity, and improperly denied Plaintiffs an opportunity to

challenge any allegations that would arguably support an award of fees

against Plaintiffs. Id. at 24.

      In its Rule 1925(a) Opinion, the trial court rejected Plaintiffs’ claim, and

their reliance upon Kulp, supra, stating as follows:

      [The] Kulp [Court] … held that “[i]n determining the propriety of
      an award of attorneys’ fees based upon a litigant’s bad faith, and
      [where] the record is unclear as to facts surrounding the litigant’s
      conduct, a hearing must be held to develop the record on the bad
      faith issue.” [Kulp, 765 A.2d at 799-800 (footnote omitted).] …
      The [C]ourt in Kulp … went on to assert that “[the] facts
      necessary for [the] trial court to find dilatory conduct on the part
      of [litigants] were admitted and undisputed, [and] therefore[,] no
      evidentiary hearing was necessary[,”] before [the trial] court sua
      sponte awarded attorney[s’] fees against litigants based on their
      dilatory conduct.[] It is undisputed[, in the instant appeal,] that
      [Plaintiffs] had filed an appeal challenging the [O]rder denying
      their [P]etition to [O]pen or [V]acate[,] after the [Supreme
      Court’s] denial of their [P]etition for allowance of appeal [in
      Mahonski I]. Furthermore, it is undisputed that [Plaintiffs’]
      counsel, [Attorney] Klementovich [], asserted[, in the Post-trial
      Motion filed prior to Mahonski I,] that not all appropriate parties
      had been joined[,] six years after litigation commenced, and that

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       [the trial c]ourt lacked jurisdiction. Although disposition of claims
       for attorney[s’] fees based upon a litigant’s conduct generally
       requires an evidentiary hearing, no hearing is necessary where[,
       as here,] the facts are undisputed. In re Estate of Burger, 852
       A.2d 385[, 391 (Pa.] Super. 2004[) (citing Kulp, 765 A.2d at 800,
       for the proposition that no evidentiary hearing concerning
       attorneys’ fees is necessary where facts are undisputed)]…. Th[e
       trial c]ourt [in this case] opines that these facts amount to dilatory
       conduct, and that any contention that [Plaintiffs’] constitutional
       right to due process were violated [is] meritless.            … The
       [Mahonski II] Court affirmed [the trial c]ourt’s Order finding that
       [Plaintiffs’] appeal was frivolous and should be quashed; this
       [c]ourt is bound by the Superior Court’s [O]rder. [See Blymiller,
       supra].

Trial Court Opinion, 4/8/19, at 3-4, 5 (unnumbered) (paragraph breaks

omitted).     Our review discloses that the trial court’s sound rationale is

supported by the law and the record. Accordingly, we affirm on this basis as

to Plaintiffs’ first two issues. See id.4

       In their third and final issue, Plaintiffs claim that, at the time that the

Mahonski II Court ordered them to pay Engel attorneys’ fees, Masters had

already been discontinued as a party in the underlying litigation and did not

participate in the appeal; nevertheless, the caption of the Judgment listed

Masters as a party. See Brief for Plaintiffs at 15-18. According to Plaintiffs,


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4 The trial court correctly observed that no fact was in dispute. Prior to the
Mahonski II Court’s issuance of its Judgment Order, and award of attorneys’
fees to Engel, the trial court had found that Attorney Klementovich’s appeal
on behalf of Plaintiffs was frivolous and “at the pinnacle of absurdity,”
particularly where the Superior Court, in Mahonski I, had already rejected
the claim that Attorney Klementovich again raised in Mahonski II. See
Mahonski II, 192 A.3d 269 (unpublished Judgment Order at 1). Therefore,
no evidentiary hearing was necessary, see Kulp, supra, and Plaintiffs were
not deprived of due process.

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Engel “deliberately caused a false judgment to be entered against [Masters],”

which was a “malicious action … motivated by family vitriol related to the

underlying litigation[.]” Id. at 16. Additionally, Plaintiffs have filed with this

Court a separate Application for Relief, wherein they again object to the entry

of Judgment insofar as it pertains to Masters (hereinafter “Application Re:

Masters”), and request that we enter an award of attorneys’ fees against

Plaintiffs based upon their “vindictive” conduct against Masters.

        Engel does not challenge Plaintiffs’ Application Re: Masters, nor did she

previously object to the Praecipe to Discontinue.5         To the extent that the

Judgment entered pursuant to Mahonski II implicates Masters, we vacate it

as improvidently entered, as Masters’s claim had been discontinued well prior

to Plaintiffs’ appeal and the entry of Judgment. However, we deny Plaintiffs’

request in the Application Re: Masters for an award of attorneys’ fees against

Engel.

        Finally, Engel has also filed with this Court an Application for Relief

(hereinafter “Application for Fees”).          Therein, she requests an award of

attorneys’ fees, in the amount of $3,487.50, concerning her counsel’s work in

connection with the instant appeal, asserting that Plaintiffs filed this appeal in

bad faith. We deny the Application for Fees.




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5   The trial court also did not address this matter in its Rule 1925(a) Opinion.

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      Order affirmed; underlying Judgment against Masters vacated in

accordance with this Memorandum; Engel’s Application for Fees denied;

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/27/2019




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