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Josette Stewart v. Roderick L. Foxworth

April 19, 2013

JOSETTE STEWART
v.
RODERICK L. FOXWORTH, SR., RODERICK L. FOXWORTH JR., FOXWORTH INC., EXIT PREMIER REALTY, BRISER ABSTRACT, CO., ERIC BROWN, WASHINGTON MUTUAL BANK, JP MORGAN CHASE BANK, N.A. APPEAL OF: JOHN J. MARTUCCI, JR.



Appeal from the Order Entered March 12, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): June Term, 2011 No. 0158

The opinion of the court was delivered by: Wecht, J.:

J-S68040-12

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

OPINION BY WECHT, J.:

John J. Martucci, Jr. ("Appellant"), attorney for the plaintiff in the underlying action, appeals the trial court's March 12, 2012 order. That order imposed a $1000.00 sanction for Appellant's failure to appear at a scheduled Rule Returnable Hearing. We are constrained to reverse.

The facts and procedural history of the underlying case are immaterial to the disposition of this appeal. However, the events leading to the trial court's March 12, 2012 order are relevant. The trial court summarized that background as follows:

The above captioned matter was initially scheduled for a Case

Management Conference ("CMC") September 9, 2011.

On September 9, 2011, [the trial court] continued said Conference to September 19, 2011, notifying all parties no further continuances would be granted. [Appellant] failed to appear at the rescheduled CMC September 19, 2011. Consequently, [the trial court] granted another continuance and rescheduled the CMC for October 20, 2011, notifying all parties no further continuances would be granted.

Additionally, [the trial court] sanctioned Appellant $100.00 for having failed to appear on September 19, 2011 and specifically informed him his "continued failure to appear will result in the imposition of further sanctions including dismissal of this action and/or preclusion." Despite receiving proper notice, Appellant failed to pay his $100.00 sanction within the requisite thirty days. Accordingly, [the trial court] scheduled a Rule Returnable Hearing for December 12, 2011.

Appellant failed to appear at his December 12, 2011 Hearing and was further sanctioned $200.00 in addition to the $100.00 [sanction]. [The trial court] scheduled another Rule Hearing on the [combined] $300.00 sanction for February 27, 2012. At Appellant's request [the trial court] continued the date to March 12, 2012.

In a letter sent 7:40 PM on Sunday, March 11, 2012, Appellant notified [the trial court] he would not attend his third Rule Hearing on 10:00 AM Monday, March 12, 2012. Appellant's letter state[d] he had a scheduled appearance in Delaware County Court (It is hard to imagine he was not aware of said appearance on Friday, March 9, 2012). Additionally, he stated he failed to attend the previous Hearings due to illness. At 9:05 AM on March 12, 2012, [the trial court] left two messages notifying Appellant his continuance request was denied. Nonetheless, Appellant failed to attend. As a result, [the trial court] imposed a $1000.00 sanction in addition to the $300.00 already imposed.

Trial Court Opinion ("T.C.O."), 5/24/2012, at 1-2 (citations to record omitted). On April 3, 2012, Appellant filed his notice of appeal. On April 9, 2012, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 1, 2012, Appellant filed his concise statement.

Appellant presents one issue for our review: Whether the trial court abused its discretion in ordering cumulative sanctions against ...


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