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.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.