Abramson, M. v. Novitsky, M.
Abramson, M. v. Novitsky, M. No. 2933 EDA 2016
| Pa. Super. Ct. | Aug 4, 2017Background
- Abramson Center obtained an arbitration award and final judgment (Dec. 2012/Jan. 2013) against the estate of Rabbi Abraham Novitsky for unpaid nursing-care charges; the Personal Representatives (his children Mitchell Novitsky and Deena Spindler) were substituted in the case.
- Abramson Center served interrogatories in aid of execution (June 2013). After incomplete or disputed responses and failure to appear at a motion-to-compel hearing, the court ordered the Personal Representatives to provide full and complete answers within 20 days (May 16, 2014).
- The Personal Representatives submitted various pro se filings, argued the information had been provided in New York probate proceedings, and the New York surrogate later closed the estate (Dec. 2014).
- Abramson Center moved for sanctions (Feb. 2015) seeking a $25/day fine until compliance and $250 in attorney’s fees. The trial court later ordered the Personal Representatives to retain Pennsylvania counsel and said they could not be heard further pro se.
- At the sanctions hearing (Aug. 4, 2016), the court awarded the requested $25/day fine until compliance and $250 in fees. The Personal Representatives then supplemented interrogatory answers and appealed. The Superior Court reversed and remanded.
Issues
| Issue | Plaintiff's Argument (Personal Representatives) | Defendant's Argument (Abramson Center) | Held |
|---|---|---|---|
| Appealability of post-judgment discovery sanction order | Appeal is improper? (PR argued appeal should be heard because discovery was post-judgment) | Order is appealable because sanction was imposed after final judgment | Court: Order is appealable (post-judgment sanctions are reviewable) |
| Whether sanctions were proper for failure to comply with May 16, 2014 order | They had complied / information was produced in NY probate / estate closed | PR failed to provide full, complete answers for over two years and refused compliance | Court: PR had provided some responses and NY materials, but sanction grant was an abuse of discretion because movant failed to show good-faith meet-and-confer under local rule and court did not consider that omission |
| Whether Abramson Center complied with Montgomery County Local Rule 208.2(e) (certification of conferral) before filing sanctions motion | PR argued Abramson did not satisfy the certification requirement and did not try to narrow requests | Abramson asserted PR did not answer and thus sanctions were appropriate | Court: Abramson failed to include/establish the required local-rule certification; trial court abused its discretion by not addressing that deficiency before granting sanctions |
| Whether the court properly required PR to retain PA counsel / sanctioned for not doing so | PR argued pro se participation was acceptable in post-judgment discovery; hiring counsel was unduly burdensome and unnecessary | Trial court contended non-lawyers should not represent an estate and cited Rowley | Court: Requiring PA counsel and sanctioning for noncompliance was an abuse of discretion given post-judgment, factual-only discovery and closed probate; Rowley was distinguishable |
Key Cases Cited
- Veloric v. Doe, 123 A.3d 781 (Pa. Super. 2015) (appealability of orders and jurisdictional principles)
- T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008) (discovery orders are generally interlocutory and not appealable)
- McManus v. Chubb Group of Ins. Cos., 493 A.2d 84 (Pa. Super. 1985) (reluctance to review discovery/sanction orders prior to final judgment absent unusual circumstances)
- Kine v. Foreman, 194 A.2d 175 (Pa. 1963) (discussion of appealability when sanctions are imposed in aid of execution)
- Kine v. Foreman, 209 A.2d 1 (Pa. Super. 1965) (affirming sanctions imposed for refusal to answer discovery in aid of execution)
- Eigen v. Textron Lycoming Reciprocating Engine Div., 874 A.2d 1179 (Pa. Super. 2005) (party cannot withhold discoverable information on ground that requesting party could obtain it elsewhere)
- In re Estate of Rowley, 84 A.3d 337 (Pa. Commw. 2013) (nonlawyer may be barred from representing an estate in active litigation; factual distinctions govern whether counsel is required)
- Harkness v. Unemployment Compensation Bd. of Review, 920 A.2d 162 (Pa. 2007) (factors for determining whether nonlawyer may represent another before tribunals)