J. A10032/17 & J. A10034/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
RICHARD MICKMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ELAINE MICKMAN, : No. 1426 EDA 2016
:
Appellant :
Appeal from the Decree, March 31, 2016,
in the Court of Common Pleas of Montgomery County
Civil Division at No. 03-06252
RICHARD MICKMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ELAINE MICKMAN, : No. 2097 EDA 2016
:
Appellant :
Appeal from the Order, June 9, 2016,
in the Court of Common Pleas of Montgomery County
Civil Division at No. 2003-06252
BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2017
Elaine Mickman appeals from the decree of March 31, 2016, and from
the order entered June 9, 2016, in these consolidated appeals. After careful
review, we affirm.
J. A10032/17 & J. A10034/17
At No. 1426 EDA 2016, the trial court has aptly summarized the
tortured history of this case as follows:
On June 21, 2011 the Honorable Arthur R.
Tilson entered a divorce decree and equitable
distribution order in this matter. On June 29, 2011,
Judge Tilson entered an amended divorce decree and
equitable distribution order. On July 1, 2011,
Defendant/Appellant/Elaine Mickman (hereinafter
“Defendant”) filed a Notice of Appeal to the Superior
Court of Pennsylvania of the June 29, 2011 amended
decree and order. On October 18, 2012, the
June 29, 2011 amended divorce decree and
equitable distribution order was affirmed by the
Superior Court of Pennsylvania.[1]
On June 25, 2014, Defendant filed a pro se
Emergency Motion to Re-Open Divorce Decree to
Vacate/Strike/Modify Divorce Decree Order Based on
23 Pa.C.S.A. [§] 3332 Procured Under Fraud. On
July 7 and July 11, 2014, counsel for Defendant,
Shannon K. McDonald, Esquire filed Amended
Petitions to Open/Vacate Divorce Decree Pursuant to
23 Pa.C.S.A. [§] 3332 (Procedure [sic] Under Fraud).
On November 17, 2014, the court heard argument
on Defendant’s July 7 and 11, 2014 amended
petitions which alleged substantially the same facts
as Defendant’s pro se June 25, 2014 emergency
motion and also refer to “Payment Direct, Inc.” and
“Beacon Financial Inc.” On January 12, 2015, the
court denied Defendant’s petitions of July 7 and 11,
2014. No appeal was taken of the court’s January
12, 2015 order.
On July 10, 2015 Defendant filed pro se a New
Petition to Open/Vacate Divorce Decree Pursuant to
23 Pa.C.S.A. [§] 3332 for Extrinsic Fraud. On
October 8, 2015 the court held a hearing on
Defendant’s petition. Following hearing on
October 8, 2015, the court denied Defendant’s
1
Mickman v. Mickman, 62 A.3d 45 (Pa.Super. 2012) (unpublished
memorandum), dismissed, 91 A.3d 1236 (Pa. 2014).
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July 10, 2015 petition. On October 13, 2015,
Defendant filed a Notice of Appeal to the Superior
Court of Pennsylvania of the October 8, 2015 order
and a Petition and Affidavit for Leave to Proceed
In Forma Pauperis. The in forma pauperis petition
was denied by the court on October 19, 2015, and
Defendant did not thereafter pay the required filing
fees for the October 13, 2015 Notice of Appeal.
Therefore, Defendant did not perfect her appeal to
the Superior Court of Pennsylvania.
On October 30, 2015, Defendant filed pro se
an Amended New Petition to Open/Vacate Divorce
Decree Pursuant to 23 Pa.C.S.A. [§] 3332 for
Extrinsic Fraud.
On November 4, 2015, Appellee/Plaintiff/
Richard Mickman (hereinafter “Plaintiff”) filed
Preliminary Objections to Defendant’s October 30,
2015 amended new petition.
On March 24, 2016, the court heard argument
on Defendant’s amended new petition and Plaintiff’s
preliminary objections. Plaintiff was represented by
Jack A. Rounick, Esquire, and Defendant represented
herself pro se. At the March 24, 2016 argument,
Mr. Rounick stated that each of Defendant’s petitions
to open or vacate the divorce decree in this matter
has “alleged the same facts, all of which were
previously presented to the court prior to the court
dismissing each of the petitions.” N.T. March 24,
2016 at 3. Mr. Rounick cited the legal doctrine of
res judicata, stating “... in this case, there’s been a
final determination from the date of the divorce to
the petitions filed thereafter, and there’s no basis
under the law for granting the petition filed by
[Defendant][.]” N.T. at 3.
Trial court opinion, 7/7/16 at 1-3 (emphasis in original; footnote omitted).
Defendant argued that the divorce decree was
procured by extrinsic fraud, and that “there’s
absolutely no res judicata here ... because this
is [sic] new and additional documents.” N.T. at 7-8.
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Defendant also stated that “none of my petitions to
open and vacate the divorce for extrinsic fraud were
identical[”] ... and that she was “never afforded a full
and fair hearing to present evidence.” N.T. at 8.
On March 31, 2016, the court issued an order
sustaining Plaintiff’s preliminary objections and
dismissing Defendant’s October 30, 2015 amended
new petition. On April 27, 2016, Defendant filed a
Notice of Appeal to the Superior Court of
Pennsylvania. On May 11, 2016, the trial court
ordered the Defendant to file her Concise Statement
of Errors Complained of on Appeal [pursuant to
Pa.R.A.P. 1925(b)] within twenty one days of the
date of the order. On June 1, 2016 Defendant filed a
Concise Statement of Errors Complained of on
Appeal[.]
Trial court opinion, 7/7/16 at 4 (emphasis in original).
Appellant has raised the following issues for this court’s review:
1. The Court erred in dismissing Appellant’s
“timely” filed Petition to Open her Divorce for
Extrinsic Fraud without a Due Process hearing
to present “Newly” discovered evidence,
testimony, witnesses, and genuine material
facts and issues collateral to the divorce trial
which identify Appellee’s divorce “planning” to
keep Appellant and the court ignorant and
prevent a fair hearing.
2. The Court erred in dismissing Appellant’s
Petition to Open her Divorce for Extrinsic Fraud
by relying on Appellee’s Preliminary
Objection’s [sic] misrepresentations and
unsupported allegation of Res judicata,
regardless that Appellant filed a
Reconsideration with an attached Exhibit as
material evidence that directly contradicted
and refuted Appellee’s Preliminary Objections.
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3. The Court erred and abused its discretion by
sanctioning Appellant when there was no
frivolous, vexacious [sic], or dilatory conduct.
Appellant’s brief at 6.
When reviewing an order sustaining preliminary
objections, our standard of review is de novo and
our scope of review is plenary. Huss v. Weaver,
134 A.3d 449, 453 (Pa.Super. 2016) (en banc)
(citation omitted). “On an appeal from an order
sustaining preliminary objections, we accept as true
all well-pleaded material facts set forth in the
[plaintiff’s] complaint and all reasonable inferences
which may be drawn from those facts.” Estate of
Gentry v. Diamond Rock Hill Realty, LLC, 111
A.3d 194, 198 (Pa.Super. 2015) (internal alteration
and citation omitted). “Preliminary objections which
seek the dismissal of a cause of action should be
sustained only in cases in which it is clear and free
from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief.”
Feingold v. Hendrzak, 15 A.3d 937, 941
(Pa.Super. 2011) (citation omitted).
Grimm v. Grimm, 149 A.3d 77, 87 (Pa.Super. 2016), appeal denied, 2017
WL 1159583 (Pa. 2017).
The High Court has recognized that “res judicata and
collateral estoppel relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial
resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication.” Allen v.
McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66
L.Ed.2d 308 (1980). These two doctrines
“preclud[e] parties from contesting matters that they
have had a full and fair opportunity to litigate.”
Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct.
2161, 171 L.Ed.2d 155 (2008) (internal quotation
marks and citations omitted). “Under res judicata, a
final judgment on the merits of an action precludes
the parties or their privies from relitigating issues
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that were or could have been raised in that action
. . . .” Allen, 449 U.S. at 94, 101 S.Ct. 411.
In re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012).
In addition, Section 3333 of the Divorce Code provides:
§ 3333. Res judicata and estoppel
The validity of a divorce or annulment decree
granted by a court having jurisdiction over the
subject matter may not be questioned by a party
who was subject to the personal jurisdiction of the
court except by direct appeal provided or prescribed
by law. A party who sought and obtained a decree,
financed or agreed to its procurement, or accepted a
property settlement, alimony pendente lite or
alimony pursuant to the terms of the decree, or who
remarries after the decree, or is guilty of laches, is
barred from making a collateral attack upon the
validity of the decree unless, by clear and convincing
evidence, it is established that fraud by the other
party prevented the making of a timely appeal from
the divorce or annulment decree.
23 Pa.C.S.A. § 3333.
As the trial court astutely observed,
As detailed above, Defendant has had the
opportunity to pursue her allegations of extrinsic
fraud as raised in previous petitions, both pro se and
counseled. The court has denied Defendant’s claims
as to any alleged extrinsic fraud on two prior
occasions before the court ruled on the Defendant’s
most recent petition. On both those previous
occasions, Defendant was afforded the opportunity
for a hearing or argument on her petitions, once with
counsel, and once pro se.
Defendant is collaterally estopped from
continually re-litigating the same issues, her claims
of extrinsic fraud and her right to a “due process
hearing,” simply because she adds a new exhibit to a
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previously filed petition. In her October 30, 2015
amended new petition, Defendant raises the same
claims as previously raised in the earlier petitions,
even attaching the same exhibits from prior
petitions. Defendant’s argument at the March 24,
2016 listing simply reiterated what Defendant, or her
counsel, has stated at prior listings. Furthermore,
Defendant continually alleges she has uncovered
“new documentation” which would permit her to
open or vacate the divorce decree, however,
Defendant’s “new documentation” is either repetitive
of prior information, or is not persuasive or relevant
to her claims that Plaintiff has “unclean hands” and
“intentionally Placed Fraud Upon the Court, and
intentionally concealed business ownership and
income to the Court and to Petitioner.” Nor did
Defendant elaborate on her “new documentation” at
the March 24, 2016 listing to a degree which would
lead the court to find that the “new documentation”
was either relevant or persuasive to her allegations
of fraud.
Defendant previously litigated the issue of her
allegations of extrinsic fraud committed by Plaintiff in
relation to opening or vacating the divorce decree on
two prior occasions before this court. This court
dismissed Defendant’s allegations of extrinsic fraud
on those two prior occasions. Furthermore,
Defendant either did not file and/or perfect an appeal
of the court’s previous decisions. Therefore, those
decisions are finally determined.
Trial court opinion, 7/7/16 at 8-9 (emphasis in original; punctuation
corrected). We agree and determine that the trial court did not err in
dismissing appellant’s claims on the basis of claim preclusion and
res judicata. Appellant’s claims that appellee engaged in a scheme to hide
assets during the parties’ 2011 divorce trial, including deliberate
concealment of his business interests using third parties, have been
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previously litigated. Appellant is collaterally estopped from repeatedly
re-litigating the same issues.
Furthermore, although appellant couches her claims in terms of
extrinsic fraud, she is really alleging intrinsic fraud. The Divorce Code,
Section 3332 provides:
§ 3332. Opening or vacating decrees
A motion to open a decree of divorce or annulment
may be made only within the period limited by
42 Pa.C.S. § 5505 (relating to modification of orders)
and not thereafter. The motion may lie where it is
alleged that the decree was procured by intrinsic
fraud or that there is new evidence relating to the
cause of action which will sustain the attack upon its
validity. A motion to vacate a decree or strike a
judgment alleged to be void because of extrinsic
fraud, lack of jurisdiction over the subject matter or
a fatal defect apparent upon the face of the record
must be made within five years after entry of the
final decree. Intrinsic fraud relates to a matter
adjudicated by the judgment, including perjury and
false testimony, whereas extrinsic fraud relates to
matters collateral to the judgment which have the
consequence of precluding a fair hearing or
presentation of one side of the case.
23 Pa.C.S.A. § 3332.
In accordance with § [3332], the only basis for
vacating a decree within 30 days is intrinsic fraud.
Beyond the 30 day limitation period a party must
show extrinsic fraud, lack of jurisdiction over the
subject matter or a fatal defect apparent from the
record. In McEvoy v. Quaker City Cab, 267 Pa.
527, 110 A. 366 (1920), our Supreme Court first
distinguished intrinsic fraud from extrinsic fraud.
By the expression ‘extrinsic or collateral
fraud’ is meant some act or conduct of
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the prevailing party which has prevented
a fair submission of the controversy.
Among these are the keeping of the
defeated party away from court by false
promise or compromise, or fraudulently
keeping him in ignorance of the action.
Another instance is where an attorney
without authority pretends to represent a
party and corruptly connives at his
defeat, or where an attorney has been
regularly employed and corruptly sells
out his client’s interest. The fraud in
such case is extrinsic or collateral to the
question determined by the court. The
reason for the rule is that there must be
an end to litigation; and, where a party
has had his day in court and knows what
the issues are, he must be prepared to
meet and expose perjury then and there:
Pico v. Cohn, 91 Cal. 129 [25 P. 970
(1891)]. Where the alleged perjury
relates to a question upon which there
was a conflict, and it was necessary for
the court to determine the truth or falsity
of the testimony, the fraud is intrinsic
and is concluded by the judgment, unless
there be a showing that the jurisdiction
of the court has been imposed up, or
that by some fraudulent act of the
prevailing party the other has been
deprived of an opportunity for a fair trial.
Bleakley v. Barclay, 75 Kansas 462 [89
P. 906 (1907)].
Fenstermaker v. Fenstermaker, 348 Pa.Super.
237, 243, 502 A.2d 185, 188 (1985) quoting
McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536,
110 A. 366, 368 (1920).
Justice v. Justice, 612 A.2d 1354, 1358-1359 (Pa.Super. 1992), appeal
denied, 621 A.2d 581 (Pa. 1993). “Thus, the Divorce Code makes clear
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that beyond 30 days, a decree cannot be vacated absent fraud which is
collateral to the proceedings.” Id. at 1359.
Here, the issue of appellee’s alleged fraudulent misrepresentations
concerning his assets and business interests has been thoroughly litigated
and appellant has had her day in court. The trial court stated,
Defendant was represented by counsel at the 2010
divorce and equitable distribution hearings, and also
utilized the services and testimony of Mr. Dennis
Bieler as an expert financial witness with respect to
valuation issues, accounting issues and income.
Defendant has not articulated or proved to the court
any reason or explanation as to why her alleged
“newly discovered evidence” was not available to
either her, her expert witness, or her attorney at the
time of the 2010 equitable distribution hearings.
Trial court opinion, 7/7/16 at 2-3 n.1. In the November 16, 2011 trial court
opinion, the trial court noted, “This Court entertained significant expert
testimony regarding [appellee]’s assets, business interests and income
during the protracted hearing.” (Trial court opinion, 11/16/11 at 7 n.5.) At
some point, litigation must come to an end. Simply stated, appellant’s
allegations of fraud relating to entry of the 2011 divorce decree and
equitable distribution order are not extrinsic or collateral to the question
already determined by the court. See Justice v. Justice, 612 A.2d at
1360, citing Ratarsky v. Ratarsky, 557 A.2d 23 (Pa.Super. 1989) (“In
Ratarsky, appellee contended that appellant committed extrinsic fraud by
concealing the value of a marital asset. This court held that even assuming
appellant concealed the value, his action did not amount to extrinsic fraud.
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The court found that the property settlement was entered into after
extensive negotiations, and that trial counsel had an opportunity to assess
the value of the assets and simply failed to do so.”). See also Major v.
Major, 518 A.2d 1267, 1273 (Pa.Super. 1986), affirmed, 540 A.2d 529
(Pa. 1988) (“Although the record clearly demonstrates that appellant did not
disclose to the lower court his military pension asset, we cannot say this
failure to disclose amounted to extrinsic fraud.”), citing Fenstermaker,
supra.
Finally, we address the trial court’s award of counsel fees.2
Section 2503(7) of the Judicial Code provides that a participant in a legal
proceeding may be awarded counsel fees “as a sanction against another
participant for dilatory, obdurate or vexatious conduct during the pendency
of a matter.” 42 Pa.C.S.A. § 2503(7).
Our ability to review the grant of attorney’s fees is
limited, and we will reverse only upon a showing of
plain error.” Diament v. Diament, 816 A.2d 256,
270 (Pa.Super. 2003) (citation omitted). “Plain error
is found where the decision is based on factual
findings with no support in the evidentiary [sic] or
legal factors other than those that are relevant to
such an award.” Id.
Sirio v. Sirio, 951 A.2d 1188, 1198-1199 (Pa.Super. 2008).
The trial court has great latitude and discretion with
respect to an award of attorneys’ fees pursuant to a
statute. Cummins v. Atlas R.R. Construction Co.,
814 A.2d 742, 746 (Pa.Super. 2002). In reviewing a
2
The trial court’s March 31, 2016 order sustaining appellee’s preliminary
objections also awarded $5,482.50 in counsel fees.
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trial court’s award of attorneys’ fees, our standard is
abuse of discretion. Lucchino v. Commonwealth,
570 Pa. 277, 284, 286, 809 A.2d 264, 269-70
(2002); Miller v. Nelson, 768 A.2d 858, 861
(Pa.Super. 2001). If there is support in the record
for the trial court’s findings of fact that the conduct
of the party was obdurate, vexatious or in bad faith,
we will not disturb the trial court’s decision.
In re Padezanin, 937 A.2d 475, 483-484 (Pa.Super. 2007), quoting Scalia
v. Erie Ins. Exchange, 878 A.2d 114, 116 (Pa.Super. 2005) (citation
omitted).
The relentless pursuit of a claim which plainly lacks
legal merit warrants an award of counsel fees. See,
e.g., In re Estate of Liscio, 432 Pa.Super. 440,
638 A.2d 1019 (1994), appeal denied, 539 Pa.
679, 652 A.2d 1324 (1994) (pursuing claim with no
reasonable possibility of success and prolonging
litigation justifies award of counsel fees under
42 Pa.C.S. § 2503). A suit is vexatious if brought
without legal or factual grounds and if the action
served the sole purpose of causing annoyance.
[Thunberg v. Strause, 682 A.2d 295, 299 (Pa.
1996)].
Miller v. Nelson, 768 A.2d 858, 862 (Pa.Super. 2001), appeal denied,
782 A.2d 547 (Pa. 2001).
The record in this case plainly discloses no abuse of discretion in the
trial court’s award of attorneys’ fees. Appellant has continued to file
repetitive and duplicative petitions based on the same allegations of extrinsic
fraud. Appellant’s prior petitions based on the same alleged facts had been
litigated and finally determined by the court. As the trial court noted,
appellant’s October 30, 2015 amended petition to open/vacate the divorce
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decree for extrinsic fraud was the third such filing appellant has made on the
same issue. (Trial court opinion, 7/7/16 at 11.) The trial court ruled on
appellant’s allegations of extrinsic fraud on two prior occasions, and
appellant failed to file or perfect an appeal of those decisions. (Id. at 12.)3
In fact, appellant’s continuing pattern of obstreperous behavior and bad faith
conduct during the course of this litigation was detailed in the trial court’s
November 16, 2011 opinion. (Trial court opinion, 11/16/11 at 12.) The trial
court did not abuse its discretion in awarding appellee counsel fees due to
appellant’s repetitive and vexatious conduct.
We now turn to the consolidated appeal at No. 2097 EDA 2016. This is
an appeal from the order of June 9, 2016, holding appellant in contempt for
failure to comply with the trial court’s order awarding counsel fees. The trial
court has summarized the relevant procedural history as follows:
On July 13, 2015, Plaintiff/Appellee
(hereinafter “Plaintiff”) filed a Counter-Petition for
Counsel Fees in this matter. On October 8, 2015,
the court held a hearing on Plaintiff’s counter-
petition. On October 14, 2015, the court issued an
order granting Plaintiff’s counter-petition, and
directing Plaintiff to provide the court, and
Defendant/Appellant (hereinafter “Defendant”), with
a detailed invoice of Plaintiff’s counsel fees incurred
3
As recounted above, on January 12, 2015, the trial court denied appellant’s
July 7 and July 11, 2014 amended petitions. Appellant did not file an appeal
from that order. On July 10, 2015, appellant filed another pro se petition to
open/vacate the divorce decree, which was denied on October 8, 2015.
Appellant filed a timely notice of appeal from the October 8, 2015 order, but
was denied IFP status and failed to pay the requisite filing fees to perfect the
appeal. Instead, appellant filed another pro se petition to open/vacate the
divorce decree on October 30, 2015.
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for the preparation and litigation of Plaintiff’s defense
to Defendant’s July 10, 2015 petition to open/vacate
the parties’ divorce decree. On October 27, 2015,
after receipt of Plaintiff’s invoice, the court issued an
order requiring Defendant to reimburse Plaintiff
$4,812.50 in counsel fees. Neither party perfected
an appeal of either the October 14, 2015 order or
the October 27, 2015 order.
On December 3, 2015, Plaintiff filed a Petition
for Contempt. In the petition, Plaintiff alleged that
Defendant had failed to reimburse Plaintiff’s counsel
for counsel fees pursuant to the October 27, 2015
order.[Footnote 1] On June 1, 2016, the court held
a hearing on Plaintiff’s petition for contempt and
Defendant’s answer and counterclaim. At the
hearing, Plaintiff was represented by Jack A.
Rounick, Esquire, and Defendant represented herself
pro se.
[Footnote 1] On March 7, 2016,
Defendant filed an Answer to Contempt
and New Matter Counter Claim for
Contempt.
Trial court opinion, 11/4/16 at 1-2 (emphasis in original).
On June 9, 2016, appellee’s petition was granted and appellant was
found in contempt of the October 27, 2015 order. (Id. at 3.) Appellant was
ordered to comply with the terms of the October 27, 2015 order by
reimbursing appellee’s counsel fees in the amount of $4,812.50 to
Attorney Rounick within 10 days. (Id.) Appellant was further ordered to
pay a fine of $500 to the Montgomery County Prothonotary within 30 days.
(Id.) Appellant’s counter-claim for contempt was denied. (Id.)
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On July 6, 2016, appellant filed a timely notice of appeal from the
June 9, 2016 order. Appellant complied with Pa.R.A.P. 1925(b), and the trial
court filed a Rule 1925(a) opinion.
Appellant has raised the following issues for this court’s review:
1. The court erred and abused its discretion in
holding Appellant in willful contempt regardless
of her financial inability to pay attorney fees
erroneously awarded against her as an
indigent party, and without frivolous,
vexacious [sic], dilatory, or obdurate conduct,
and it is noted that the attorney fee order was
derived from a hearing that was conducted in
Appellant’s medical absence by the court
violating Appellant’s Civil Rights by denying her
a Public Accommodation for the hearing
pursuant to Title II of the Americans with
Disabilities Act.
2. The court erred and demonstrated a fixed-bias
against Appellant by denying her counter-
contempt against Appellee’s Willful contempt,
without Appellee appearing in court to be
cross-examined or to present evidence or
testimonial defense, thereby denying Appellant
enforcement of the affirmed divorce order
terms.
Appellant’s brief at 5, quoting Rule 1925(b) statement, 10/12/16 at 1.
When considering an appeal from an Order holding a
party in contempt for failure to comply with a court
Order, our scope of review is narrow: we will
reverse only upon a showing the court abused its
discretion. Hyle v. Hyle, 868 A.2d 601 (Pa.Super.
2005), appeal denied, 586 Pa. 727, 890 A.2d 1059
(2005). The court abuses its discretion if it
misapplies the law or exercises its discretion in a
manner lacking reason. Id. To be in contempt, a
party must have violated a court Order, and the
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complaining party must satisfy that burden by a
preponderance of the evidence. Id.
Hopkins v. Byes, 954 A.2d 654, 655-656 (Pa.Super. 2008).
In her first issue on appeal, appellant claims that the trial court abused
its discretion in awarding attorneys’ fees in the absence of vexatious or
obdurate conduct. Appellant also argues that the October 8, 2015 hearing
was conducted in her “medical absence” due to a permanent disability.
Appellant failed to take an appeal from the October 27, 2015 order
directing her to pay appellee’s counsel fees in the amount of $4,812.50. The
October 27, 2015 order was final and appealable. Pa.R.A.P. 341; Kulp v.
Hrivnak, 765 A.2d 796, 798-799 (Pa.Super. 2000). Therefore, any claims
that relate to the October 8, 2015 hearing or the October 27, 2015 order are
waived.
At any rate, for the reasons discussed above, in disposing of
appellant’s appeal at No. 1426 EDA 2016, this court has already determined
that the trial court did not abuse its discretion in awarding attorneys’ fees for
appellant’s vexatious conduct in this matter.4 Furthermore, as the trial court
observes, appellant has never raised a valid claim under the ADA or provided
4
The October 27, 2015 order related to appellant’s July 10, 2015 petition,
whereas the March 31, 2016 order related to appellant’s October 30, 2015
petition. However, the analysis would be the same. Appellee is entitled to
be reimbursed for the cost of defending these repetitive, frivolous, and
vexatious petitions.
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any competent evidence that she has been designated as permanently
disabled. (Trial court opinion, 11/4/16 at 6 n.4.)
Regarding her alleged inability to pay, appellant never presented any
evidence to support this claim. In fact, appellant conceded that she pays
$555 per month to lease a Mercedes. (Notes of testimony, 6/1/16 at 9-10,
14-15.) Appellant never asked for an extension of time to pay the counsel
fees, or requested an installment plan. See Sinaiko v. Sinaiko, 664 A.2d
1005, 1009 (Pa.Super. 1995) (“The alleged contemnor has the burden of
proving the affirmative defense that he has the present inability to comply
with the court order.” (citation omitted)).
Furthermore, appellant admitted that she did not comply with the
court order. (Notes of testimony, 6/1/16 at 6-7.) Sinaiko, 664 A.2d at
1009 (“The complaining party has the burden of proving by a preponderance
of evidence that a party violated a court order.” (citation omitted)). There
was no dispute that appellant failed to pay appellee’s counsel fees.
Appellant simply argued that she lacked the financial ability to pay without
providing any supporting evidence. Therefore, the trial court did not abuse
its discretion in finding appellant in civil contempt of its October 27, 2015
order.
Next, appellant argues that she was denied the opportunity to
cross-examine appellee. Appellee lives in England and did not attend the
June 1, 2016 contempt hearing; however, appellant did not dispute that she
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failed to pay counsel fees and appellee’s testimony was unnecessary.
Attorney Rounick appeared on appellee’s behalf. In addition, appellant
never objected to appellee’s absence or argued that his testimony was
necessary for litigation of the contempt petition. (Trial court opinion,
11/4/16 at 7-8.) This issue was raised for the first time in appellant’s
Rule 1925(b) statement. (Id. at 8.) Appellant fails to indicate where in the
record this matter was preserved in the court below. As such, it is being
raised for the first time on appeal and is deemed waived. Commonwealth
v. Williams, 980 A.2d 667, 671 (Pa.Super. 2009), appeal denied, 990
A.2d 730 (Pa. 2010), citing Pa.R.A.P. 2117(c) and 2119(e); Pa.R.A.P. 302(a)
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal”).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2017
- 18 -
Mickman, R. v. Mickman, E.
Combined Opinion