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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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