Chesapeake Design Build, LLC v. Wieder, C.

• Court: Superior Court of Pennsylvania
• Decided: May 16, 2016
• Docket: 1345 MDA 2015
• Status: Unpublished

Opinion

J-A14005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHESAPEAKE DESIGN BUILD, LLC D/B/A IN THE SUPERIOR COURT OF BAYWIND HOMES PENNSYLVANIA

Appellant

CHERYL A. WIEDER

Appellee No. 1345 MDA 2015

Appeal from the Judgment Entered July 6, 2015 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2009-CV-10112-CV

BEFORE: BOWES, OTT AND PLATT,* JJ.

JUDGMENT ORDER BY BOWES, J.: FILED MAY 16, 2016

Chesapeake Design Build, LLC d/b/a Baywind Homes appeals from a

judgment entered on an award of sanctions that was imposed after the trial

court found that Appellant was in violation of discovery orders. We quash.

On April 26, 2013, the trial court found Appellant in civil contempt for

failing to provide adequate responses to discovery requests. On August 29,

2013, after finding that Appellant failed to purge itself, the trial court

assessed $10,121.04 in attorneys’ fees as a discovery sanction. Appellant

filed a prior appeal to this Court from the August 29, 2013 order, and we

quashed that appeal as interlocutory. Chesapeake Design v. Wieder, 118

A.3d 444 (Pa.Super. 2015) (unpublished memorandum). Therein, we

* Retired Senior Judge assigned to the Superior Court. J-A14005-16

observed: “Orders finding a litigant in civil contempt as a discovery sanction

are not appealable. Therefore, we quash this appeal for lack of jurisdiction.”

Id. (unpublished memorandum at 1) (citing Stahl v. Redcay, 897 A.2d

478, 487 & n.2 (Pa. Super. 2006); Bruno v. Elitzky, 526 A.2d 781, 782-83

(Pa. 1987). In contrast to other contempt orders imposing sanctions, “when

sanctions are imposed for failure to comply with a discovery order, the order

imposing sanctions is not reviewable until final disposition of the underlying

litigation. This is so even though discovery sanctions are frequently imposed

following a citation for civil contempt in an attempt to coerce compliance

with the discovery order.” Fox v. Gabler, 547 A.2d 399, 404 (Pa. Super.

1988); Accord Diamond v. Diamond, 715 A.2d 1190, 1193 (Pa. Super.

1998).

Following our quashal, judgment was entered against Appellant in the

amount of sanctions imposed in the August 29, 2013 order. Appellant filed

the present appeal from the judgment, and challenges the August 29, 2013

order finding it in civil contempt and imposing attorney’s fees.

Appellant maintains “a discovery order of the lower court which is

reduced to judgment is an appealable order. By reducing the sanction order

to judgment it became final and, thus, an appealable. order.” Appellant’s

brief at 12; see also id. at 25. Appellee Cheryl A. Weider and the trial court

refute that position and maintain that this appeal remains interlocutory.

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We agree that this appeal is also interlocutory. “Entry of judgment

cannot render appealable an otherwise unappealable order.” Christian v.

Pennsylvania Fin. Responsibility Assigned Claims Plan, 686 A.2d 1, 4

(Pa.Super. 1996) (quoting Hall v. Lee, 428 A.2d 178, 181 n.2 (Pa.Super.

1981); But see Jerry Pitell Co. v. Penn State Const., Inc., 419 A.2d

1299, 1300 n.2 (Pa.Super. 1980) (where party would lose ability to recover

attorney’s fees imposed as discovery sanction and where sanctions award

was reduced to judgment, appeal was proper).

As we have noted, “this Court will not provide interim supervision of

discovery proceedings conducted in connection with litigation pending in the

several trial courts. In the absence of unusual circumstances, we will not

review discovery or sanction orders prior to a final judgment in the main

action.” McManus v. Chubb Grp. of Ins. Companies, 493 A.2d 84, 87

(Pa.Super. 1985) (distinguishing Pitell). Herein, Appellant has not

suggested that it will not be able to recover from Appellee any amount that

it pays to her as a discovery sanction, and this case does not present

unusual circumstances where we should provide interim supervision of

discovery matters rather than examining the propriety of those proceedings

after this case has proceeded to final judgment.

We have previously ruled that Appellant cannot appeal from the

August 29, 2013 order as it is interlocutory. We conclude that entry of

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judgment on the sanctions imposed in the order does not render it

appealable.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/16/2016

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