Chesapeake Design Build, LLC v. Wieder, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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A.3d 444 (Pa.Super. 2015) (unpublished memorandum).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 (unpublished memorandum at 1) (citing Stahl v. Redcay, 897 A.2d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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