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WILLIAM J. FOX v. FRANK K. GABLER (09/09/88)

filed: September 9, 1988.

WILLIAM J. FOX, APPELLEE,
v.
FRANK K. GABLER, APPELLANT



Appeal from the Judgment entered in the Court of Common Pleas of Montgomery County, Civil at No. 74-14664.

COUNSEL

Bruce L. Thall, Philadelphia, for appellant.

Lizabeth A. Auspitz, Ambler, for appellee.

Rowley, Wieand and Montemuro, JJ.

Author: Montemuro

[ 377 Pa. Super. Page 344]

This appeal was taken by Frank K. Gabler from an order which found him in contempt and directed that he post bond in the amount of ten thousand ($10,000.00) dollars or face incarceration. Gabler has now posted the required bond and proceedings are continuing in the trial court. For the reasons that follow, we quash Gabler's appeal.

The present appeal results from the culmination of a series of events which began almost fourteen years ago in October of 1974, when appellee, William J. Fox, filed a complaint in equity alleging that he and appellant, Frank K. Gabler, had entered into a partnership agreement for the purpose of purchasing a tap room and restaurant known as the "Toll House Inn". Alleging that he had been wrongfully excluded from the partnership, Fox's complaint requested that he be determined an equal partner in the "Toll House Inn" and also that Gabler be required to account for all earnings, expenses and profits of the "Toll House Inn". Fox sought to commence discovery; however, Gabler refused to comply with numerous discovery requests and court orders compelling discovery. As a result, default judgment was entered against Gabler, which the trial court subsequently refused to strike. On appeal, we reversed and struck the judgment because of a procedural irregularity in the prothonotary's entry of judgment. See Fox v. Gabler, 282 Pa. Super. 490, 423 A.2d 351 (1980). On remand, Fox attempted to complete discovery but was again met with stonewalling tactics by Gabler. Fox moved for sanctions pursuant to Pa.R.C.P. 4019. Upon consideration of this motion, the trial court determined that default judgment was an appropriate sanction and again entered default judgment against Gabler. On appeal, we affirmed the

[ 377 Pa. Super. Page 345]

    entry of default judgment. See Fox v. Gabler, 335 Pa. Super. 638, 484 A.2d 815 (1984).

The case was then listed for a hearing pursuant to Pa.R.C.P. 1511(b) on October 6, 1986 to assist the court in framing a decree, but due to various delays, the hearing was not held until November 17, 1986. On that date, Gabler appeared and requested a continuance so that he could employ counsel. The court denied this motion and the case proceeded. On November 19, 1986, Gabler experienced chest pains and was taken to the emergency room at Montgomery Hospital. When he appeared in court later that same day, the court entered an order prohibiting Gabler from removing any partnership assets from the business premises. The order also directed Gabler to furnish various documents and to prepare a list of all partnership assets. Upon discovering that Gabler had removed various items of personalty from the business premises, Fox filed a petition for contempt alleging that Gabler had violated the court's order. A hearing date was set on the petition for November 24, 1986. When Gabler failed to appear at the hearing, the trial court, believing that this was just another delay tactic on the part of Gabler, conducted the contempt proceedings without Gabler present. By order dated November 24, 1986, the trial court found Gabler in contempt of its previous order, but demonstrating remarkable judicial patience, imposed no sanctions at that time. Instead the court reinstated its previous order and directed that Gabler could purge himself of his contemptuous conduct by returning the items which had been removed from the business premises.*fn1 Gabler continued to flagrantly disregard the trial court's order and refused to return the property. Consequently, the court scheduled a hearing on March 20, 1987, to determine whether Gabler continued to be in contempt of its prior order. Following that hearing, the court found that Gabler had failed to purge himself of his contemptuous conduct, and required him to post a bond of ten thousand dollars ($10,000.00) or face incarceration. This

[ 377 Pa. Super. Page 346]

    timely appeal followed and on April 6, 1987 Gabler posted the required bond.

Part I

Initially, we must address Fox's contention that this appeal should be quashed due to Gabler's repeated flagrant contempt of several orders entered by the trial court. Our review of the record and case law reveals there is factual as well as legal support for the argument which Fox advances. See Commonwealth ex rel. Goodwin v. Goodwin, 413 Pa. 548, 555, 198 A.2d 503, 504-505 (1964); Commonwealth ex rel. Beemer v. Beemer, 200 Pa. Super. 103, 106-107, 188 A.2d 475, 477 (1962). However, in addition to his continuous blatant and contumacious disregard of court orders, we find several other reasons which dictate that we quash the present appeal.

Part II

While Gabler strenuously urges that we reach the merits of his claim, a review of the merits is virtually impossible because of his failure to supply this Court with an adequate record. It is the duty of the appellant to provide a record which is sufficient to permit meaningful appellate review. We have held that where the appellant is remiss in fulfilling this duty, the appeal must be quashed. See Commonwealth v. Williams, 357 Pa. Super. 462, 516 A.2d 352 (1986). In the present case, without a full transcript of the November 24, 1986 contempt hearing and without the photographs allegedly showing the condition of the Inn after various items had been removed therefrom, meaningful appellate review of this case would be extremely difficult, if not impossible.

Part III

We also believe that the case of Cedar Valley Civic Association v. Schnable, 239 Pa. Super. 486, 362 A.2d 993 (1976) is factually indistinguishable from the case at bar and dictates that we quash Gabler's appeal. In Cedar Valley, the trial court had found the ...


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