Delbianco, K. v. Garbowsky, E.

• Court: Superior Court of Pennsylvania
• Decided: May 3, 2022
• Docket: 585 WDA 2021
• Status: Unpublished

Opinion

J-S11004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAREN J. DELBIANCO : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EUGENE G. GARBOWSKY : : Appellant : No. 585 WDA 2021

Appeal from the Order Dated April 9, 2021 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 16-009506-005

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED: May 3, 2022

Eugene Garbowsky (“Father”) appeals from the Allegheny County Court

of Common Pleas’ order dismissing his petition for modification of child support

as a result of his failure to comply with discovery orders. We affirm.

Father and Karen Delbianco (“Mother”) entered into a divorce

settlement agreement in 2017. Under that agreement, Father is to pay $1400

in child support per month for his and Mother’s child, S.G. On February 11,

2020, Father filed a petition to modify the amount of child support, claiming

an alleged reduction in income from a karate studio he owned and operated.

A support modification conference was held on July 13, 2020. Father

failed to produce documentation substantiating his allegation of a reduction in

income, and the case was declared complex. The court ordered Father to

schedule a complex support hearing within ten days, or risk dismissal of his J-S11004-22

modification petition. While Father did not timely comply with that order, he

did eventually comply and a complex support hearing was scheduled for

November 18, 2020.

Mother served Father with discovery requests that were due by October

29, 2020. Father failed to provide the requested discovery, and accordingly,

the court continued the hearing until April 12, 2021. Father did eventually

provide answers to Mother’s first set of interrogatories and requests for

production of documents but “those [a]nswers were wholly insufficient.” Trial

Court Opinion, 9/16/21, at 2.

Mother filed a motion to compel discovery, averring that Father’s

answers to the first set of interrogatories were “beyond grossly deficient” and

that Father had failed to produce documents outlined in the discovery chart

which itemized Mother’s discovery requests. In an order dated March 8, 2021,

the trial court granted Mother’s motion.1

The March 8, 2021 order specifically directed Father to provide full and

complete responses to Mother’s discovery requests, including “all missing

items on the discovery chart,” by March 15, 2021. Trial Court Order, 3/8/21,

single page. The order also explicitly provided Father with notice that his

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1Neither Mother’s motion to compel discovery nor the trial court’s order dated March 8, 2021 appear to have been included in the certified record sent to this Court. However, Father provided both the motion to compel as well as the order dated March 8, 2021 in the reproduced record sent to this Court and there is no dispute as to their content.

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failure to strictly comply with the order could result in dismissal of his

modification petition, retroactive to the date of its filing, as well as the award

of counsel fees to Mother in the amount of $750. The order also contained a

paragraph acknowledging Father’s averment that he had supplemented his

answers and provided documents to Mother as of March 5, 2021. However,

the court found Father had failed to “itemize his response to address the

individual deficiencies alleged in [Mother]’s motion to compel.” Id.

Following the issuance of this order, Father still did not provide full and

complete discovery. Although he filed an amended answer to Mother’s first set

of interrogatories and first request for production of documents, that

amendment continued to object to a large portion of Mother’s discovery

requests. Mother therefore filed a second motion to compel discovery. Father

filed a reply to Mother’s motion, in which he again averred that he had

provided responses and documents to Mother via email on March 3, 2021, and

then via mail on March 5, 2021.2

In response to Mother’s motion, the court entered an order dated April

9, 2021. In that order, the court specifically found Father had failed to provide

full and complete discovery as directed by the court’s order dated March 8,

2Again, neither Mother’s second motion to compel discovery nor Father’s reply to that motion appear to have been included in the certified record sent to this Court. However, Father provided both the second motion to compel discovery as well as his reply to that motion in the reproduced record sent to this Court and there is no dispute as to their content.

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2021. The court therefore dismissed Father’s petition for modification of

support, retroactive to its filing, canceled the complex support hearing, and

ordered Father to pay $750 for Mother’s counsel fees.

Father filed a notice of appeal. In his court-directed 1925(b) statement

of errors complained of on appeal, Father raised 11 errors he alleged the court

made in issuing its April 9, 2021 order dismissing his petition for modification

and doing so without holding a hearing. In its 1925(a) opinion, the trial court

called those 11 claims “specious.” Trial Court Opinion, 9/16/21, at 2. It then

concluded that it had not abused its discretion in dismissing Father’s

modification petition for his noncompliance with the discovery requests and

orders. In support, the court explained Father had shown a “lack of

responsiveness throughout this litigation” and that any discovery responses

Father had provided were wholly insufficient. Id. at 2. For example, the court

noted that in the purported “Income Statement” portion of Father’s pretrial

statement, the only figure Father supplied was “1,000.” See id.

The court also pointed out that its March 8, 2021 order compelling

discovery explicitly warned Father that if he did not provide full and complete

discovery, as ordered, it could result in dismissal of his petition for

modification. The court also defended its decision to dismiss the petition

without first holding the complex support hearing:

Father failed abjectly, for over a full year, to provide any financial information upon which Mother could reasonably assess or rebut Father’s claims of reduced income. Having failed to comply with the court’s Orders compelling complete interrogatory answers,

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Father presumably intended to either ‘wing it’ at the Hearing with respect to satisfying his burden of proof, or intended to ‘spring’ upon both [Mother] and the Hearing Master some hitherto undisclosed form of documentary evidence substantiating his claims. This would have been extremely prejudicial to Mother and to the Hearing Master, and a waste of the administrative resources of this court. By repeatedly failing to comply in any meaningful way with pretrial discovery requests and Orders, Father’s own inactivity and noncompliance obviated the need for a hearing.

Id. at 3.

In his brief to this Court, Father once again lists the same 11 alleged

errors with the April 9, 2021 order that he raised in his 1925(b) statement.

“For judicial economy purposes,” he then divides those 11 issues into three

categories which he identifies as: 1) issues “related to the trial court’s abuse

of discretion on matters of discovery,” 2) issues “related to “the trial court’s

judgment being exercised as manifestly unreasonable,” and 3) the “trial

court’s lack of an evidentiary hearing.” Appellant’s Brief at 11.

In his first category of issues, Father essentially argues the trial court

erred by dismissing his modification petition as a sanction for his discovery

violations. This argument has no merit.

The decision of whether to sanction a party for the failure to comply with

a discovery order, and the severity of that sanction, are both subject to the

discretion of the trial court. See Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa.

Super. 2005). This Court will only disturb such a sanction where it is shown

that the trial court abused its discretion. See id. While a trial court may order

the dismissal of an action as a consequence for discovery violations, it may

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only do so where the violations of the discovery rules are willful and the

opposing party has been prejudiced. See Rohm and Haas Co. v. Lin, 992

A.2d 132, 142 (Pa. Super. 2010).

Here, Father asserts that dismissal of his modification petition was

improper because Mother was not prejudiced by any discovery violations and

in fact, Father had not committed any discovery violations. Father avers he

provided the requested discovery documents when he supplemented his

answers and forwarded a list of documents to Mother’s counsel a few days

prior to the court’s entry of its motion-to-compel order dated March 8, 2021.

The trial court, however, soundly rejected this argument:

As the [court] noted in [its March 8, 2021] Order, Father’s assertions that, as of March 5, 2021, he had ‘supplemented’ his answers and that Mother was in possession of all documents requested were not accompanied by any itemized response to the deficiencies noted by Mother’s counsel. No such itemized full and complete response has been provided to date.

Trial Court Opinion, 9/16/21, at 3.

Father does not dispute the trial court’s finding or allege he provided an

itemized response. Instead, in support of his argument, Father points to a

single page in the reproduced record. That page is an email Father’s counsel

sent to Mother’s counsel on March 3, 2021, which lists certain documents in

the subject line which are said to be attached to the email. Father does not

elaborate on what those documents were, or how they related to the discovery

chart, much less how they fulfilled or completed his discovery obligations. As

such, Father has not shown the trial court abused its discretion by finding he

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had repeatedly failed to give full and complete discovery responses, and that

his modification petition should be dismissed on that basis.

In his second category of issues, to which Father assigns three of his

claims, Father asserts the trial court’s ruling was manifestly unreasonable. In

support, he offers the following:

[T]he judgment exercised was manifestly unreasonable, as the Trial court ordered the Motion to Modify terminated retroactive to February 12, 2020, rather than November 12, 2020. [Father] argues that [Mother] was provided an opportunity to cross examine Father on the record before [the special master]. All parties had full knowledge of all income on that date during the hearing, which was conducted on the record. Consequently, [Mother] cannot argue that she was prejudiced.

Appellant’s Brief at 16.

As Father’s argument is not only unclear but woefully undeveloped, we

find that the three claims enveloped in Father’s second category of alleged

errors are waived. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

2009) (stating that “where an appellate brief fails to provide any discussion of

a claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived). Even if we

were to overlook waiver, we see no reason to conclude, under the

circumstances present here, that the court’s ruling was manifestly

unreasonable.

In his third and final category, Father includes several claims challenging

the court’s failure to hold a hearing prior to dismissing his modification petition

and imposing attorney fees. However, in his argument section, Father only

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discusses attorney fees. In doing so, he cites generally to Rules of Civil

Procedure that do not appear to apply to this case. He then claims the trial

court erred in awarding counsel fees as there is no record to support such an

award. However, he then states that where “the record is officially developed,

the Appellate Court may substitute its judgment for the trial court and decide

the case on the merits,” and urges this Court to do so here. Appellant’s Brief

at 17-18 (citation omitted). All in all, Father’s argument is misaligned with his

claims, underdeveloped and internally inconsistent. We therefore find that the

claims comprising his third category are waived. See Johnson, 985 A.2d at

924. Even if the claims were not waived, we see no abuse of discretion in the

trial court’s decision not to hold a hearing, as set forth in the court’s

explanation above. See also Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super.

1998) (stating that “neither notice nor a hearing is a necessary prerequisite

to the imposition of sanctions” for discovery violations). No relief is due.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/3/2022

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