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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions