HomeMy WebLinkAbout2019-07469 (2)
H.A.H.M. : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNT, PENNSYLVANIA
:
: CIVIL ACTION (PROTECTION FROM ABUSE)
v. :
:
M.S.E. :
Defendant : NO. 2019-7469 CIVIL TERM
IN RE: DEFENDANT’S MOTION FOR SANCTIONS
BEFORE OLER, S.J.
OPINION and ORDER OF COURT
OLER, S.J., December 26, 2019.
In this protection from abuse case, a pro se defendant has filed a motion to
sanction a plaintiff and her counsel pursuant to Pennsylvania Rules of Civil Procedure
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1023.1 and 1023.3. For the reasons stated in this opinion, the motion will be denied.
STATEMENT OF FACTS
Plaintiff is H.A.H.M., 35, a resident of Carlisle, Cumberland County,
Pennsylvania. Defendant is M.S.E., 38, a resident of Hamilton, Ontario, Canada. The
parties are originally from Egypt, and are the parents of a three-year-old son.
On July 23, 2019, Plaintiff filed an uncounseled petition for protection from abuse
on her own behalf against Defendant, based upon the following allegations:
It all started friday Jul 19 when he had my son for a visit, he started sending messages
accusing me that i hit my son & abuse it & ask to go to ER & when i accepted, he refused
because he realized it will prove his lying, he came home with my child & started to
scream & call me names because I refused to get out to talk to him, & grabbed the child
to his car again to deliver him to the police station as long i don’t want to talk to him, my
son starts to cry & shake and got scared of him, i took my son while he was screaming &
calling me bitch & stuff & I get home, 2nd day when he came for visitation my son didn’t
want to go he was very scared. So i tried to calm him, he opened the door (he isn’t
allowed to my house to grab the boy who was screaming & we called 911 & they got
involved & adviced me to get the help of domestic violence as his attitude will be
esclading & he tried after that to harass my brother in law for the 3rd time with false
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allegation.
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Defendant’s Motion for Sanctions, filed December 4, 2019.
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Plaintiff’s Petition for Protection from Abuse, ¶11, filed July 23, 2019.
* * * *
He did abused me before Emotionally always & physically. Only Once I went to court in
Egypt for he hit me in iron door & i got a Court order, he sends threatening Emails &
messages, he got convicted \[indecipherable\] stalk me under my home in Egypt. from Feb
2018 till now & he always tries to reframe me with false Allegations through msgs. &
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police.
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In response to Plaintiff’s petition, a temporary protection from abuse order was entered
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and a hearing was scheduled for July 31, 2019.
The day prior to the hearing, Defendant filed a motion for a continuance, claiming
I am resident of Canada, and I have been diagnosed with severe concussion. I am not able
to travel or to drive. This is due to physical attack by the plaintiff and I would require
time to provide all video records of incidents, recover from my illness, to hire a lawyer to
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serve evidence to other party to be admitted in Court.
In addition to requesting a continuance, Defendant advised the court that he would need
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an Arabic interpreter for the hearing. Based upon the motion, the hearing was
rescheduled for September 4, 2019, and the temporary protection from abuse order was
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continued in effect.
Plaintiff secured the services of William G. Braught, Esq., to represent her in this
matter through the Cumberland County Bar Association’s pro bono lawyer referral
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program. A hearing on Plaintiff’s petition for protection from abuse was held on
September 4, 2019, October 2, 2019, November 6, 2019, and December 4, 2019.
At the initial day of hearing, the Arab interpreter recruited for Defendant’s benefit
was excused when it was ascertained that Defendant’s command of English was more
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Id., ¶12.
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Temporary Protection from Abuse Order, dated July 23, 2019 (Brewbaker, J.).
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Notice of Hearing and Order, filed July 23, 2019.
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Defendant’s Motion for Continuance, filed July 30, 2019.
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See Order of Court, dated July 30, 2019.
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Id.
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Plaintiff’s Answer to Defendant\[’\]s Motion for Sanctions, ¶16, filed December 13, 2019; Defendant’s
Answer to the Plaintiff’s New Matter, ¶16, filed December 19, 2019.
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than sufficient to facilitate his testimony and examination of witnesses. Much of the
testimony involved an incident on July 20, 2019, when a confrontation developed at
Plaintiff’s residence during a scheduled custody exchange; a video of the incident showed
that Defendant had attempted to push his way into the residence to pick up the child, and
that the occupants had closed the door in his face. In the court’s view, neither
Defendant’s assertion that he had been seriously injured in the incident nor Plaintiff’s
contention that Defendant’s conduct rose to the level of abuse under the Protection from
Abuse Act was persuasive.
Other evidence in the case involved an incident in Egypt, as a result of which
Defendant was convicted of physically striking Plaintiff in January of 2018. However, it
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appears that the conviction was overturned on appeal. Another incident which was the
subject of testimony related to antagonistic behavior on the part of Defendant in 2019 that
was sufficiently alarming to one of Plaintiff’s neighbors to cause him to call the police.
During the course of the hearing, the court denied a number of motions by Defendant,
including a motion to dismiss the action for lack of evidence in support of the petition.
Following the final day of hearing, the court entered an order dismissing the
petition:
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AND NOW, this 5 day of December, 2019, upon consideration of Plaintiff’s
Petition for Protection from Abuse, filed July 23, 2019, and following a hearing held on
September 4, 2019, October 2, 2019, November 6, 2019, and December 4, 2019,
Plaintiff’s Petition for Protection from Abuse is dismissed and the Temporary Protection
from Abuse Order dated July 23, 2019, is vacated.
THE PARTIES are referred to their custody case at No. 2019-05580 Civil Term
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(Cumberland County) for resolution of their custody dispute.
The fact that the hearing in this case extended over a period of four days can be
attributed, in the court’s view, largely to a succession of motions, objections, arguments,
witness interrogations, speeches, and testimony on the part of Defendant, mostly of
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Apparently, Defendant had wanted the interpreter to translate certain Egyptian documents for the court.
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Defendant’s Ex. 6, Hearing, November 6, 2019.
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Order of Court, dated December 5, 2019.
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dubious legal merit. In this regard, the court is reminded of Herb Shriner’s recollection of
a volunteer fire department in his home town that was called to put out a house fire. “If it
hadn’t of been for them,” he said, “that house would’ve burned to the ground in five
minutes. As it was, they kept it going for half an hour.”
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On December 4, 2019, Defendant filed a “Motion for Sanctions.” This motion,
citing Pennsylvania Rules of Civil Procedure 1023.1 and 1023.3, requested the court to
“sanction the Plaintiff \[H.A.H.M.\] and Plaintiff’s Attorney William G. Brought,” and
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incorporated a memorandum in support of the motion “as if fully rewritten.” The
memorandum argued that Plaintiff’s action “ha\[d\] no basis in fact, frivolous and
vexatious \[sic\], without probable cause and \[was\] intended to merely harass and
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maliciously injure the defendant . . . .”
In response to the motion, a rule to show cause was issued upon Plaintiff and
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Plaintiff’s counsel. An answer with new matter followed, noting, inter alia, that the
allegations in Plaintiff’s petition had been found sufficient to support a temporary
protection from abuse order, that Plaintiff had presented evidence consistent with the
petition at the hearing, and that the court had denied a motion to dismiss the petition for
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lack of such evidentiary support. Defendant filed a reply to the new matter, reasserting
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his position that the litigation had been “malicious, meritless and frivolous.”
Relief requested in Defendant’s Motion for Sanctions included the following:
. . . 2) awarding Defendant reasonable costs and expenses for all travel inconvenience
incurred during responding to Plaintiff’s petition 3) Non-monetary and monetary
sanctions on Plaintiff and Plaintiff’s attorney to serve as deterrence for not abusing the
integrity of the judicial system and wasting Court resources and time in a frivolous
litigations, especially if a child rights and welfare being affected by this. 4) Award
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Defendant’s Motion for Sanctions, filed December 4, 2019.
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Id.
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Defendant’s Memorandum in Support for Defendant’s Motion For Sanctions, at 1, filed December 4,
2019.
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Order of Court, dated December 5, 2019.
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Plaintiff’s Answer to Defendant\[’\]s Motion for Sanctions, ¶¶17-19, filed December 13, 2019.
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Defendant’s Answer to the Plaintiff’s New Matter, ¶20(A), filed December 19, 2019.
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Defendant Monetary damages for all stress and trauma suffered during the four months
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litigation process.
DISCUSSION
Pennsylvania Rule of Civil Procedure 1023.1 provides, in pertinent part, as
follows:
(c) The signature of an attorney or pro se party constitutes a certificate that the
signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or
later advocating such a document, the attorney or pro se party certifies that, to the best of
that person’s knowledge, information and belief, formed after an inquiry reasonable
under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation,
(2) the claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification or reversal of
existing law or the establishment of new law,
(3) the factual allegations have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery; . . . .
(d) If, after notice and reasonable opportunity to respond, the court determines
that subdivision (c) has been violated, the court may . . . impose an appropriate sanction
upon any attorneys, law firms and parties that have violated subdivision (c) or are
responsible for the violation.
Pennsylvania Rule of Civil Procedure 1023.3 provides as follows:
On its own initiative, the court may enter an order describing the specific conduct
that appears to violate Rule 1023.1(c) and directing an attorney, law firm or party to show
cause why it has not violated Rule 1023.1(c) with respect thereto.
In the present case, as the recitation of facts above indicates, the court did not find
credible Defendant’s claim that he had been a seriously injured in the confrontation that
occurred at Plaintiff’s residence on July 20, 2019, and regarded any harm to Defendant
from the extended duration of the proceedings as largely self-inflicted. While Plaintiff’s
petition was ultimately dismissed, the court did not regard her action as malicious,
meritless or frivolous.
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Defendant’s Motion for Sanctions, filed December 4, 2019.
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Accordingly, the following order will be entered.
ORDER OF COURT
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AND NOW, this 26 day of December, 2019, upon consideration of Defendant’s
Motion for Sanctions, and for the reasons stated in the accompanying opinion, the motion
is denied.
BY THE COURT,
__________________
J. Wesley Oler, Jr., S.J.
William G. Braught, Esq.
78 W. Pomfret Street
Carlisle, PA 17013
Attorney for Plaintiff
M. S. E.
XXXX
XXXX
Hamilton, Ontario L8N2V7
CANADA
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