United States: Attorneys’ Fees As Sanctions; It Takes An Attorney And A Hearing

Lowe v. Lowe 2015 Pa. Super. 35

On September 20, 2013 a Father files a Motion (sic) to Modify a Custody Order.  A hearing is scheduled that same day in Allegheny County on November 14.  Mother is pro se.  Father is represented.  The attorney for Father advised Mother that he was filing to adjourn the November hearing and would appear on October 30 to submit that request.  Father's counsel does not appear at the October 30 preceding but simply phones the Court to tell them he was "pulling" his motion.  The Mother sat through the list that day and informed the Court at the end that she was waiting for Father's attorney to present his motion.  As we might suspect she had taken time off to appear and Father's attorney appears to have not advised her that he was abandoning his motion for continuance.

The trial judge was angered by this perceived act of rudeness and issued an order compelling Father to pay $500 in counsel fees to Mother within ten days.  Note:  Mother was pro se, so we start with a problem.  The problem is the Commonwealth Court's ruling in Maurice A. Nernberg & Associates v. Coyne, 920 A.2d 967, 972 (2007) where that Court held that a remedy under Section 2503(7) of Title 42 for dilatory, obdurate or vexatious conduct does not include attorneys awards where attorney's fees were not incurred.

The Superior Court next examines Pa. R.C.P. 1023.1(c).  This allows award of an "appropriate sanction" where an attorney or pro se party prosecutes or defends a petition, motion or pleading without a sound factual or legal basis.  The sanction may be imposed on parties or counsel but only after notice and opportunity to respond.  Note that the Court has the authority to undertake this proceeding on its own initiative. Pa. R.C.P. 1023.4.  But as a due process protection the Court must specify the conduct it deems offensive.  The sanctions are specified at Pa. R.C.P. 1024.  It includes striking all or that portion of the legal filing that was found spurious.  The Court may invoke a penalty payable to the Court.  And it may award legal fees directly related to the offensive conduct.

The trial court opinion offered that it had erred in terming the award "attorney's fees", as no attorney time had been expended by the pro se Mother.  But as the appellate panel notes, Mother made no written or oral motion for any award.  The Trial Court could have issued its own rule to show cause but the remedies at hand were sparse.  There was no pleading to strike (except perhaps the underlying motion to modify the custody).  There were no attorney's fees incurred. So, we are left with a "penalty" payable to the Court.  And, based on the Superior Court ruling it appears they may be asking the Trial Court to explore Rule 1023.4(a) (2)(iii) and its cryptic reference to "other expenses incurred as a direct result of the violation."

Is this an invitation for pro se Mother to present her lost wage and parking fee claims?  Not clear from the opinion but the case was remanded to permit either Mother or the Court to proceed under the direction of the rules.

The procedural history of this case underscores the problems inherent in the practice of many counties to handle matters through what is often called "business court." Typically many counties set aside part of one day per week for all motions or petitions to be presented.  Most require that the opponent be afforded 72 hours or more of notice that the motion will be "presented".  The basic utility of this worked in olden days because few litigants were pro se and in many counties most of the bar was either present or close by when business court was held. The hope was that by forcing an appearance, the lawyers would be rendered more "reasonable" and that many settlements would be made just outside the courtroom because the matter was about to be heard in some way.  But the alleged practice in this case highlights today's new avalanche of pro se litigants.  Mother in this case took time off from work or may have paid for day care for the sole purpose of traveling to downtown Pittsburgh for what would likely have been a 1-3 minute "proceeding" to resolve a contested request for a continuance.  The request was never filed because Prothonotaries are typically instructed not to accept papers until a judge has entered a "rule to show cause" in the business court.  So when the opinion discusses the motion having been "pulled", the truth is that it was never filed, a rampant problem that the appellate courts should address.  In this case, the appellate decision "reminds" Father's attorney that a custody pleading cannot be withdrawn without leave of court or written consent of the parties.  Pa. R.C.P. 1915.3-1.  But Father's attorney wasn't attempting to withdraw his pleading; he was simply reneging on his representation that he was filing for a continuance.  Yes, there is some utility to be had in holding "business court."  But, there is no "business" until a pleading, petition or motion is filed on the docket.  Ironically, the appellate court has remanded a case to the trial court to take up sanctions under Rule 1023 for a motion that was never filed.  See the opinion at footnote 3 and figure that one out.

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