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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WADE, GOLDSTEIN, LANDAU, AND            :    IN THE SUPERIOR COURT OF
ABRUZZO, P.C.                           :          PENNSYLVANIA
                                        :
                   v.                   :
                                        :
TIMOTHY CLARK AND                       :
CORINNE CLARK,                          :         No. 1639 EDA 2018
                                        :
                        Appellants      :


               Appeal from the Judgment Entered July 26, 2018,
               in the Court of Common Pleas of Chester County
                        Civil Division at No. 2013-06330


BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED OCTOBER 16, 2019

     Timothy Clark (“Mr. Clark”) and Corrine Clark (“Ms. Clark”) appeal from

the July 26, 2018 judgment entered in the Court of Common Pleas of Chester

County.   As discussed herein, Ms. Clark has no appeal before this court.

Additionally, Wade, Goldstein, Landau & Abruzzo, P.C. (“Wade”), has filed a

“motion for dismissal of appeal pursuant to a per curiam order filed

October 30, 2018,” based on substantial defects in Mr. Clark’s brief. We deny

Wade’s motion for dismissal and affirm the judgment.

     The underlying case reflects a lengthy litigation between all the parties

involved in the issues surrounding this transaction. Wade was successful in

the underlying action.    The record reflects that on July 3, 2013, Wade

commenced the underlying action against Mr. Clark; Matthew Arrison, Esq.;
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Great White Marketing, Inc. (“Great White”); John Ralston Woodruff, Esq.;

and The Woodruff Law Firm (John Ralston Woodruff, Esq., and The Woodruff

Law Firm collectively referred to as “Woodruff”) by praecipe to issue writ of

summons. In the praecipe, Wade identified the primary claim as “malicious

prosecution.”    (Wade’s praecipe to issue writ of summons, 7/3/13.)

Thereafter, the proceedings were terminated with respect to Attorney Arrison.

With leave of court, Wade filed a complaint, an amended complaint, and a

second amended complaint. The second amended complaint contained four

claims, including wrongful use of civil proceedings and abuse of process that

allegedly stemmed from lawsuits filed by Woodruff on behalf of Mr. Clark and

Great White, which was an entity owned by Mr. Clark, against Wade. The

second amended complaint also included a count alleging fraudulent

conveyance against Mr. Clark, Great White, Ms. Clark, and Woodruff.        A

protracted litigation ensued.

      On March 4, 2015, a default judgment was entered against Woodruff.

The litigation continued as against Mr. Clark, Ms. Clark, and Great White. On

April 12, 2017, Woodruff filed a petition to strike/open default judgment,

which the trial court subsequently denied.      (Order of court, 6/14/17.)

Woodruff then filed a motion for reconsideration. The trial court entered an

order denying the motion for reconsideration on July 21, 2017. On July 25,

2017, however, the trial court entered an order stating that “in view of the

Motion of [Woodruff] for Reconsideration of [Woodruff’s] Petition to



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Strike/Open Default Judgment and/or for Indemnity or Contribution, it is

hereby ordered that [the trial c]ourt’s Second Final Administrative Conference

Order dated June 15, 2017, is amended[.]”            (Order of court, 7/25/17

(electronically signed).) The order then goes on to amend the conference

schedule with respect to filing deadlines for submission of final expert reports.

On August 2, 2017, Mr. Clark filed an answer to the “motion of John Woodruff

to indemnify/contribution.” (Mr. Clark’s “answer by [Mr. Clark] to motion of

John   Woodruff    to   indemnify/contribution,”   8/2/17    (full   capitalization

omitted).) The record reflects that the indemnification/contribution litigation

between Mr. Clark and Woodruff ensued.

       On February 27, 2018, with leave of court, Wade filed a praecipe to

partially discontinue, without prejudice, with respect to Mr. Clark, Ms. Clark,

and Great White.1 On March 12, 2018, Mr. Clark filed a “petition for sanctions

and to tax fees as costs sur rule 2503(7) and (9).”         On March 19, 2018,

Ms. Clark filed a petition “for an award of counsel fees pursuant to

42 Pa.C.S.[A.] § 2503(7), (9).” On April 25, 2018, the trial court entered an

order denying Mr. Clark’s petition for sanctions and to tax fees as costs

pursuant to 42 Pa.C.S.A. § 2503(7) and (9). Also on April 25, 2018, the trial




1In Wade’s brief to this court, it explained that it decided to forego recovery
against Mr. Clark, Ms. Clark, and Great White because Attorney Woodruff
appeared capable of satisfying the judgment entered against him. (Wade’s
brief at 15.)


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court entered an order denying Ms. Clark’s petition for an award of counsel

fees pursuant to 42 Pa.C.S.A. § 2503(7) and (9).

      The record reflects that on June 13, 2018, Mr. Clark and Ms. Clark filed

one notice of appeal from “the Order of April 25, 2018 denying without a

Hearing Petition for Sanctions and to Tax as Fees and Costs rendered by the

[trial court].” (Notice of appeal, 6/13/18.)2 Attached to that notice of appeal

is the trial court’s April 25, 2018 order denying Mr. Clark’s petition for

sanctions. Therefore, because the trial court entered a separate order denying

Ms. Clark’s petition for counsel fees and Ms. Clark did not appeal from that

order, Ms. Clark has no appeal before this court.

      The record further reflects that the trial court ordered Mr. Clark to file a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b).    Mr. Clark timely filed a Rule 1925(b) statement which

contained 18 claims of error. (Mr. Clark’s “statement of matters complained

of sur Rule 1925(b),” 6/21/18 (full capitalization omitted).) The trial court

filed a Rule 1925(a) opinion that briefly addressed “the issue that is woven




2 The record reflects that a second notice of appeal was filed on June 19, 2018,
which stated that “Timothy Clark and Corrine Clark hereby appeals [sic] from
the Order of April 25, 2018 denying without Hearing Petition for Sanctions and
to Tax as Fees as Costs rendered by the Honorable Mark Tunnel.” (Notice of
appeal, 6/19/18 (full capitalization omitted).) No order was attached to the
June 19, 2018 notice of appeal. We note, however, that because Ms. Clark
filed a petition “for award of counsel fees pursuant to 42 Pa.C.S.[A.]
§ 2503(7), (9)” and the trial court entered a separate order specifically
denying Ms. Clark’s petition, it is clear that the notice of appeal filed on
June 19, 2018 is not from the order denying Ms. Clark’s petition.


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throughout the [c]oncise [s]tatement” and incorporated the reasons for

dismissal as set forth in the order that dismissed Mr. Clark’s petition for

sanctions. (Trial court opinion, 7/3/18 at 1-2.)

        On June 20, 2018, this court entered an order directing Mr. Clark to

show cause as to why the appeal should not be quashed for want of a final

order. (Per curiam order of court, 6/20/18.) Mr. Clark did not respond. On

July 19, 2018, this court entered an order noting that a “[r]eview of this matter

indicates that no judgment has been entered on the trial court docket as

required by Pa.R.A.P. 301.” (Per curiam order, 7/19/18.) In accordance

with this court’s policy, the order then directed Mr. Clark to praecipe the trial

court prothonotary to enter judgment. (Id.) The order further stated that

upon compliance, the notice of appeal previously filed would be treated as

filed after entry of judgment. (Id.) Mr. Clark complied by providing this court

with an updated docket sheet showing that judgment was entered on July 26,

2018.

        On October 9, 2018, Wade filed an application to dismiss Mr. Clark’s

appeal alleging, among other things, that Mr. Clark failed to file a timely brief

and that Mr. Clark attempts to improperly broaden the scope of the appeal.

(Wade’s motion for dismissal of appeal, 10/9/18.) On October 30, 2018, this

court denied Wade’s application to dismiss without prejudice to raise the issue

before the merits panel.      (Per curiam order of court, 10/30/18.)          On

January 22, 2019, Wade filed a motion for dismissal of appeal pursuant to that



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per curiam order.     (Wade’s “motion for dismissal of appeal pursuant to

per curiam order filed October 30, 2018” (full capitalization omitted).) In its

motion for dismissal, Wade requests that we dismiss the appeal for Mr. Clark’s

various violations of the Pennsylvania Rules of Appellate Procedure.

      Mr. Clark raises the following issues for our review:

            1.    Did the Court deny due process by denying the
                  Petition for Sanctions for Fees under
                  42 Pa. C.S.[A.]    2503    summarily    without
                  permitting [Mr. Clark] to make a Record focused
                  upon the issue of the Petition where the Court
                  had prohibited any adverse deposition for the
                  previous three years, and the opportunity to
                  submit Briefs or make oral argument after the
                  Court withdrew Rule to Show Cause mandating
                  deposition ex parte[?]

            2.    Did the Court commit abuse of discretion by
                  manifest unreasonableness by resolving all
                  issues against [Mr. Clark and Ms. Clark], not
                  analyzing the position of each [Mr. Clark and Ms.
                  Clark] separately, without permitting either one
                  to make a record upon their separate claims for
                  abuse in litigation from 2014 forward including
                  (1) not discontinuing the action in July 31, 2015
                  when the total value of both judgments upon a
                  legal bill of about $13,000 was $$54,785.20
                  [sic] upon happenstance (2) utter failure to
                  provide reasoned grounds to initiate and
                  continue the suit against [Ms.] Clark for conduct
                  of her husband already reduced to judgment in
                  2013 (2) suing [Mr.] Clark in 2013 for contract
                  damages, and fraud damages both of which
                  were denied at trial in 2013 in the prior case and
                  continuing the suit for tort damages without
                  prevailing    wholly    on    the    prior   claim
                  (3) prolonging of the case for twenty-two
                  months by filing false claims including that the
                  case was “settled” unilaterally in 2016 for the
                  purpose to avoid near impending trial (4) illicitly


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                   placing [Mr. Clarks’] lawyers on “witness” list in
                   2015 to slow down the proceedings and
                   (5) falsely claiming [Mr. Clark’s] lawyer should
                   be disqualified by conflict not until late 2017
                   again at the cusp of trial rather than
                   immediately in 2015 when it raised the issue
                   casually within its Conference Memorandum by
                   listing both lawyers as witnesses to avoid
                   trial[?]

Mr. Clark’s brief at 7 (emphasis in original).

      At the outset, we note that even though Mr. Clark’s counseled brief is

largely incomprehensible and attempts to improperly broaden the scope of the

appeal outside of the order appealed from, we decline Wade’s request to

dismiss on those bases. Instead, we will dispose of the issue that Mr. Clark

raises before this court and that he raised with the trial court, which is that

the trial court abused its discretion in denying Mr. Clark’s motion for sanctions

in the form of attorney’s fees because the trial court prohibited him from

making a record to support the award.

      In addressing a trial court’s order awarding or denying counsel fees, our

review is limited solely to determining whether the trial court abused its

discretion. Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996). “An abuse

of discretion occurs where the trial court ‘reaches a conclusion that overrides

or misapplies the law, or where the judgment exercised is manifestly

unreasonable, or is the result of partiality, prejudice, bias, or ill will.’” Brady

v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015).




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        Here, Mr. Clark requested counsel fees “for sanctions against [Wade]”

under 42 Pa.C.S.A. 2503(7) and (9)3 “for its dilatory, obdurate or vexatious

conduct during the pendency of a matter and for its arbitrary, vexatious and

bad faith conduct in commencing the matter.”         (Mr. Clark’s “petition for

sanctions and tax fees as costs sur Rule 2503(7) and (9),” 3/12/18 at 1

(emphasis omitted).) In denying Mr. Clark’s request, the trial court explained

that:

             [t]he court finds no need for the creation of an
             additional record or a hearing in order to evaluate the
             legal claims presented in this petition. First, the
             present petition more properly reads as a motion than
             a petition. The “petition” recounts the procedural
             history of this case, as well as the parties’ prior
             dispute. Both of which, however, are already of
             record before the court. The petition simply restates
             the history of this case and concludes that based upon
             the record the court should find vexatious conduct
             (and the like) on the part of the [Wade]. Yet, the
             allegations in [Mr. Clark’s] petition are in sum a
             re-assertion of the claims and disputes that occurred
             prior to the filing of the instant case and are not a
             proper basis for an award of fees. Furthermore, as
             the court has noted in past orders, it has been
             assigned this case for five (5) years in pre-trial
             administration and is quite familiar with the
             allegations and claims.       The court has resolved
             numerous motions and petitions filed by the parties
             challenging one another’s conduct and it has
             personally observed the parties’ and their counsel’s
             conduct during pre-trial conferences.         Thus, in
             answering the question whether [Wade’s] conduct

3Section 2503(7) permits an award of counsel fees as a sanction “for dilatory,
obdurate or vexatious conduct during the pendency of a matter.” 42 Pa.C.S.A.
§ 2503(7). Section 2503(9) permits an award of counsel fees where “the
conduct of another party in commencing the matter or otherwise was
arbitrary, vexatious or in bad faith.” Id. at § 2503(9).


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            during the litigation was suit [sic] was “dilatory,
            obdurate or vexatious” or whether the action was filed
            without “reason,” the court concludes the answer is
            that it was not.

            Although [Wade’s] claim may not have been a strong
            one in [Mr. Clark’s] view, the record does not support
            an award of attorneys’ fees. An award of counsel fees
            is intended as a sanction against those who seek to
            use legal avenues to harass other parties, or attempt
            to obtain a benefit to which they would not otherwise
            be legally entitled. The court finds that such was not
            the case here.

Order of court, 4/25/18 at 2 n.1. In its Rule 1925(a) opinion, the trial court

further explained that:

            [a]s the court noted in its appealed from Order, [Mr.
            Clark] raised issues that involved facts that were of
            record – filings made, assertions contained therein,
            disposition of prior cases and so on. Although in cases
            where facts may be unclear or disputed an evidentiary
            hearing may be required, in this case the facts and
            challenged conduct was [sic] of record before the
            court. Thus, the court concluded that no additional
            evidentiary hearing was necessary.

Trial court opinion, 7/3/18 at 1-2 (citation omitted).

      We have reviewed the extensive record in this case and discern no abuse

of discretion.

      Judgment affirmed. Motion for dismissal of appeal pursuant to

per curiam order filed October 30, 2018 denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/16/19




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