J. S470 18 /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 20 17

: Appellant :

Appeal from the Order Dated November 30, 2016, in t he 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 a ppeal 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. I n 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, 2016J. S470 18 /17

- 2

- before a discover y master to address [appellant’s] failure to respond to the Requests for Production. The Motion to Dismiss fu rther stated that on June 7, 2016 the Honorable Stephen Barrett enter ed an Order requiring [appellant] to comply wi th [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 h earing 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 tha t 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 modif y 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, a nd 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 Att orney 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 ] AfterJ. S470 18 /17

- 3

- 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 o r 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 rec ord 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, 2/1 7/17 at 1

- 3 ( record citations omitted; some brackets

in origin al).

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

appellant to show cause w ithin 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:J. S470 18 /17

- 4

- 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 ord er 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 con tempt order is appealable because it is a final order imposing sanctions”).

Correspondence in res ponse 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 ap peal to this merits p anel ; and

advised appellant that this panel may revisit the appeal ability 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/ 17/17J. S470 18 /17

- 5

-

show

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

. ) A ppellant

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

2016 order w as 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 limi ne to dismiss

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

see also n otes of testimony, 7/14/15
, passim

. ) Additionally, we note that

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

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

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

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

. ( See tria l 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. , 16 8 A.3d 256, 260

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

imposing d iscovery sanctions is not appealable until final judgment in the

underlying action. West v. Andersen , 626 A.2d 60 6, 608 (Pa.Super.

1993). Here, we have reviewed the volumi nous certified record in this case,J. S470 18 /17

- 6

-

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 orde r 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