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Lowe v. Lowe

Superior Court of Pennsylvania

February 17, 2015

DINA LOWE, Appellee
v.
DONALD LOWE, Appellant

Argued, June 25, 2014

Appeal from the Order October 30, 2013. In the Court of Common Pleas of Allegheny County. Civil Division No(s).: FD07-005261-008. Before BUBASH, J.

Max C. Feldman, Coraopolis, for appellant.

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,[*] JJ.

OPINION

Page 212

FITZGERALD, J.

In this child custody matter, Appellant, Donald Lowe (" Husband" ), appeals from the order entered in the Allegheny County Court of Common Pleas directing him to pay $500 in counsel fees to pro se Appellee, Dina Lowe (" Wife" ).[1] We hold that under Pennsylvania Rules of Civil Procedure 1023.1, 1023.3, and 1023.4: (1) a court may sua sponte impose sanctions against a party only if it, inter alia, first directs that party to show cause why sanctions are not merited; and (2) in the absence of any motion for sanctions, a court that imposes sanctions on its own initiative may only impose a penalty to be paid into court or directives of a nonmonetary nature, and may not award payment to the other party. We vacate and remand for further proceedings.

The trial court summarized:

The underlying case between these parties commenced in October 2007, with the filing of a complaint in support by [Wife]. Since 2012, Wife has proceeded pro se. Husband is represented by local attorney Max Feldman[, Esq.[2] On September 19, 2013, the Divorce Decree was entered but the parties have continued with custody litigation.
Feldman, on behalf of Husband, served Wife with a motion which would be presented on October 30, 2013 to request continuance of an upcoming hearing.[3] Attorney Feldman was also

Page 213

to appear before me to contest another motion that same day, scheduled by [another attorney]. At some point that morning, [A]ttorney Feldman called my chambers and told a staff member that [the other attorney] informed him he was unable to come to court and therefore, Feldman was " pulling" both motions.
At the end of Motions Court[ ], my tipstaff noticed Wife in the courtroom. Wife stated that she did not have notice of [Husband's] motion being " pulled", that she had driven from her home in another county to contest the motion and, to do so, she had to miss a day's work. She further stated that this was not the first time she had been inconvenienced by [A]ttorney Feldman, and missed work previously, only to have motions " ...

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