Hall v. Lee
| Decision Date | 03 April 1981 |
| Citation | 285 Pa.Super. 542,428 A.2d 178 |
| Parties | Thomas HALL, and Janet Hall, Appellants, v. John Jackson LEE, Jr., and James F. Lombardo and Sons. |
| Court | Pennsylvania Superior Court |
Argued Sept. 9, 1980.
Allen L. Feingold, Philadelphia, for appellants.
Peter J. Hoffman, Philadelphia, for appellees.
Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
This is an appeal from the lower court's order denying appellants' motion for sanctions. Because the appeal is not properly before us, we are compelled to quash it.
The facts underlying this appeal may be summarized as follows. On December 8, 1978, appellants filed a complaint in trespass alleging that they had sustained injuries as a result of an automobile accident. On June 15, 1979 their counsel, Mr. Feingold, requested that defendants-appellees make available all documents subject to discovery under the rules of civil procedure. In response thereto, appellees forwarded certain documents that they maintained fulfilled their obligations. Mr. Feingold was not satisfied, however, and on August 13, 1979, he filed his first motion for sanctions contending that appellees should be compelled to produce further records. The lower court denied Mr. Feingold's motion for sanctions. On October 22, 1979, Mr. Feingold filed a second motion for sanctions alleging that appellees had perpetrated a fraud on the court by failing to forward documents that were subject to discovery. Mr. Feingold also requested five hundred dollars as attorney's fees for preparing his second motion for sanctions. The lower court denied Mr. Feingold's motion and directed him to pay appellees' counsel one hundred dollars as attorney's fees for preparing and filing an answer to the motion. This appeal followed.
Before we may consider the merits of this appeal, we must determine whether it is properly before us. Although the appellees did not raise this issue, the appealability of an order is a question of jurisdiction and may be raised sua sponte. Williams v Williams, 253 Pa.Super. 444, 385 A.2d 422 (1978); Polascik v. Baldwin, 245 Pa.Super. 1, 369 A.2d 263 (1976); 42 Pa.C.S. § 704(b)(2). Our court's appellate jurisdiction is generally limited to appeals from final orders of courts of common pleas. 42 Pa.C.S. § 742. A final order is generally one which terminates the litigation, disposes of the entire case, or effectively puts the litigant out of court. Adoption of G. M., 484 Pa. 24, 398 A.2d 642 (1979); In the Interest of C. A. M., 264 Pa.Super 300, 399 A.2d 786, (1979). "The reason for prohibiting appeals from interlocutory orders is 'to preclude piecemeal determinations and the consequent protraction of litigation.' " Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa 402, 406, 319 A.2d 677, 678 (1974); quoting from Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). Orders which do not dispose of the entire case may be deemed final and appealable, however, if postponement of appeal until after final judgment might result in the irreparable loss of the right asserted. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978), Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). [1]
Appellants argue that their second motion for sanctions was necessary to compel appellees to produce discoverable material. Sanctions for failure to adequately respond to requests for discovery are provided for in Pa.R.C.P. No. 4019(a). Goodrich-Amram states that:
Generally, the appealability of an order of the court under Rule 4019(a) will depend upon its finality. If the effect of the order is the equivalent of a final judgment, that is, if it disposes of the entire case upon its merits and leaves nothing for trial, it will be appealable.
Goodrich-Amram 2d § 4019(a):12.
It is manifestly clear that the order sub judice denying appellants' motion for sanctions did not dispose of the entire case upon its merits. The only question remaining therefore is whether the postponement of this appeal will result in the irreparable loss of other rights asserted.
Mr. Feingold's second motion for sanctions also requested five hundred dollars as attorney's fees for preparing the motion. The lower court's order denied that request and ordered Mr. Feingold to pay appellees' counsel one hundred dollars. The lower court stated in its opinion that:
... Mr. Feingold's second Motion for Sanctions, which was almost a repeat of ... (his first motion), was not only unwarranted but evidenced a disregard for the proper procedures as defined by our rules. He compounded his improper action by requesting that Defendants pay a counsel fee for compelling him to take it.
It was Defendants' counsel, acting in good faith and proceeding with due diligence in answering Mr. Feingold's second motion, who clearly deserved to be recompensed for the work performed in responding to such a spurious motion. Therefore, we awarded Defendants' counsel the sum of $100.00, as reasonable attorney fees for the preparation and filing of his answer.
We note that this is not the first instance in which Mr. Feingold has transcended the bounds of fair play by filing certain discovery motions that have proved not only a waste of opposition counsel's time, but has (sic) wasted valuable judicial time.
(Lower court opinion at 2-3).
Authority for appellants' request for counsel fees is found presumedly at Pa.R.C.P. No. 4019(g)(1) which provides that:
(g)(1) Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motions or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney's fees, incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
As a general rule, an appeal does not lie from an order refusing counsel fees, Rutherford v. Rutherford, 152 Pa.Super. 517 32 A.2d...
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