author: DOZOR, J.,

text:
    Lopez v. Vasquez

      C.P. of Delaware County,
    No. 2014-009787

      Beth Lyons, for defendant/appellee.
    Jan. 13, 2015
   DOZOR, J.,

— This Appeal is considered as a direct appeal from this court’s December 8, 2014 “order dismissing petition for emergency relief.” The nature and history of the case is as follows:

On October 30, 2014 appellant’s attorney of record filed simultaneously: an entry of appearance, a “complaint in custody,” and a “motion to incorporate stipulation for custody,” with the “stipulation and agreement of custody” in the above captioned Delaware County docket. This initial filing of a complaint of custody began the normal and customary process filed in the Court of Common Pleas of Delaware County, Family Court Division and was assigned a custody conference hearing date before a master and the case was also assigned to the undersigned judge. In this case, appellant was scheduled before master Amanda Konyk for a custody conference on November 24,2014 at 9:00AM. Master Konyk continued the custody conference on November 24,2014 until December 5,2014 at 9:00 AM.

On December 5,2014, the parties, appellant and minor child, were before master Konyk. Following the custody conference before master Konyk, master Konyk authored a temporary custody order providing appellant with temporary legal and physical custody of minor child. This court notes that on December 8, 2014, the undersigned judge confirmed and signed the temporary custody order authored by master Konyk and thereafter, the temporary custody order was docketed by the office of judicial support on December 9, 2014.

Immediately following master Konyk’s issuance of the temporary custody order, appellant filed a petition for emergency relief on December 5, 2014. This petition for emergency relief was provided to this court, as this court was the assigned judge for the custody complaint. After a thorough review of the petition for emergency relief filed by counsel and the December 5, 2014 temporary custody order, this court issued an order on December 8, 2014 denying and dismissing the petition for emergency relief. This court noted in the December 8, 2014 order that the Patricia Guadalupe Felix Coronado was no longer a “minor child” as her eighteenth birthday passed on December 6, 2014 since her date of birth is December 6, 1996.

On December 22, 2014, appellant simultaneously filed a “petition for reconsideration of order dismissing petition for emergency relief’ as well as “plaintiff’s exceptions to master’s recommendations.” Again in the normal and customary practice in the Court of Common Pleas of Delaware County, this petition for reconsideration and the appeal de novo which was captioned as “plaintiff’s exceptions to master’s recommendations” were provided to the undersigned judge. This court consolidated the two Petitions and scheduled a pre-trial conference date in this matter for February 3, 2015 at 11:00AM. In scheduling this matter for a pre-trial conference, this court required appellant to provide this court with statutory authority that would enable this court to provide appellant with further relief as the “subject child” is currently eighteen (18) years of age.

Despite not having a final custody order in this case, and despite the fact that appellant had requested a hearing de novo before this court, appellant filed, on January 7, 2015, this appeal before the Superior Court. This court notes that no request was made by this court by appellant pursuant to Pennsylvania Rules of Appellate Procedure 1925(a) for a concise statement of matters complained of on appeal as appellant filed her concise statements contemporaneously with her notice of appeal as appellant is seeking designation of this appeal as a children’s fast track appeal.

This court has reviewed appellant’s concise statements of matters raised on appeal and these are the issues of appeal related to this court’s December 8, 2014 “order dismissing petition for emergency relief:”

1. The court committed an error of law and an abuse of discretion in refusing to sign the stipulated custody agreement and by signing the master’s temporary custody order as the master’s temporary order does not make a finding of abuse, abandonment or neglect nor does the temporary custody order make a finding that it is in the best interests of the “child” not to return to Guatemala.
2. The court committed an error of law and an abuse of discretion in determining that relief requested in the emergency petition was moot as appellant alleges that the issue is not moot despite the fact that the “subject child” is eighteen, appellant maintains that this court continues to have jurisdiction because she remains enrolled in school past her eighteenth birthday.

DISCUSSION:

This court in preparing this opinion has reviewed all the documents in the case. This court notes that Ms. Coronado has been in the care of appellant since October of 2013, according to the stipulation for agreed upon custody, yet appellant waited until just over a month before Ms. Coronado’s eighteenth birthday to file the necessary paperwork for custody and to obtain the special immigrant juvenile Status

Appellant suggests this court erred as Ms. Coronado continues to need a custody order, despite the fact that she is eighteen (18), because she remains enrolled in high school. Additionally, appellant argues that this court erred in not signing the order accompanying the stipulated custody agreement and that this court erred when it instead simply signed the temporary custody order. In concert with both arguments, appellant alleges that the denial of the emergency petition for relief was in error as there was cognizable relief available to appellants.

In the December 8, 2014 order, this court noted that although Ms. Coronado was no longer a “minor child” she was currently in High School and remains enrolled in the tenth (10th) grade. In dismissing the emergency petition, this court noted that the petition for emergency relief’s wherefore clause, sought relief from this court to grant appellant the relief requested by granting appellant custody “over the child.” This court notes now, as it did then that Patricia Guadalupe Felix Coronado, is no longer a child and since her eighteenth birthday has become an adult under the applicable Pennsylvania Custody Statutes.

Appellant’s argument is that because Patricia Guadalupe Felix Coronado is currently enrolled and attending high school, she is jurisdictionally a “minor child” for whom this court retains jurisdiction over for the purposes of determining custody. Appellant analogizes that for the purpose of support, the support statutes permit the court to retain jurisdiction and enforcement purposes require a parent to continue to support a “child” who is no longer under the age of eighteen as long as that “child” remains enrolled in high school. A thorough review of the relevant Pennsylvania Statutes, Rules of Civil Procedure and case law is not in agreement with appellant’s position. There is no analogous statute or rule of law or case law in the Commonwealth of Pennsylvania that provides that a parent maintains custodial rights over their child or any child for which there was a prior custody order, after that child reaches the age of majority in the United States, that being eighteen (18).

23 Pa.C.S.A. Section 5321(a), contains the definition for Chapter 53: child custody. A review Section 5321(a) reveals that the following two definitions relates to the entire chapter on child custody:

“Adult.” Any individual 18 years of age or older.
“Child.” An unemancipated individual under 18 years of age.

There is no statute or commentary in 23 Pa.C.S.A. Chapter 53, which provides that an individual who has reached the age of majority, eighteen (18) years of age, must remain in the physical custody of a legal parent or guardian as long as that person remains in enrolled in a high school. Additionally, this court has reviewed the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) wherein the term child is as “an individual who has not attained 18 years of age.” See 23 Pa.C.S.A. Section 5402. Finally, this court notes that a review for 23 Pa.C.S.A. Section 5101 “Attainment of full age,” provides that any individual who has reached the age of 18 or older may enter into their own contracts and may on their own sue another individual or be sued by an individual. Therefore, this court was correct in the conclusion of the petition for emergency relief that Ms. Coronado is no longer a “child” under the definitions set forth in the Commonwealth of Pennsylvania for which emergency relief in the form of a custody order could have been granted.

This court notes, as it did in its December 8, 2014 order, the petition for emergency relief did not request that this court sign the stipulated custody agreement that had been filed on October 30, 2014. Appellant’s petition for emergency relief simply requested “that this honorable court sign an emergency order granting plaintiff custody over the child.” This court notes that such an order of custody has been signed by the court on December 5, 2014 while Ms. Coronado was a “minor child” under the laws of the Commonwealth of Pennsylvania, as she did not turn eighteen (18) years of age until the next day. The December 5,2014 temporary custody order provided sole legal and sole physical custody of the then minor child to appellant and noted that placement of the then minor child with appellant was in the minor child’s best interests. Appellant’s issue with the temporary custody order is simply that certain language was not used and specific findings were not made and it is alleged therefore that Ms. Coronado was not able to obtain Special Immigrant Juvenile Status (“SIJS”).

This court notes that the the stipulated custody agreement was not presented to this court with the petition for emergency relief. This court notes that the stipulation of custody was presented to master Konyk, who noted in the temporary custody order that an

Offer of proof was provided by counsel, in conjunction with signed but not notarized or verified as translated by notary “stipulation for agreed custody order,” filing that child’s parents sent her to the U.S. due to sexual assault allegedly occurring in Guatemala and alleged perpetrator’s access to child at the time child was sent to the U.S. A ‘Description of Particulars’ was provided to the court.

Master Konyk reviewed the documents presented and issued the temporary custody order.

This court has now reviewed the stipulated custody agreement and notes that there purports to be original signatures of appellant and appellee; however, there is no notary or verification that the signatures of appellees are their signatures. This court has reviewed the “description of particulars of the case of Patricia Guadalupe Felix Coronado” which again is not notarized or verified and while this court is saddened to learn that Ms. Coronado was a young rape victim, this court notes that there is no indication that the torture she endured would continue if she was returned to her country of origin. This court notes that specifically in the “description of particulars,” her parents state that is was Ms. Coronado’s decision to come to the United States “due to the rape and extreme poverty of her parents.”

This court notes that there are documents accompanying the petition for emergency relief related to the motion to incorporate the stipulation for custody as well as the stipulation for an agreed custody order, despite the fact that the petition for emergency relief does not request that this court sign or confirm the stipulated custody agreement. The documents are two letters addressed to master Konylc which purport to be from Mr. Marco Vincio Lopez Maldonado and Mr. Marvin Gilberto Jeronimo Navarro, one letter is in english and one letter is in Spanish. Mr Navarro purports to be an attorney and notary. This court notes that the english translation of the original documents filed by the attorney of record does not contain the signatures of the two men or even the original signature of attorney submitting the document. There is also no notification to this court who translated the accompanying Spanish version of the letter into english. Additionally, there is no notary or attorney seal on the english translated version of the document. This court also notes that the Spanish version of the letter attached to the original petition for emergency relief also does not contain any original signatures or notarized seals.

Furthermore, a review of the document simply states that Mr. Jeronimo met with a Mr. Demetrio Felix Augustin who translated “from the Spanish language to the Mayan Mam language, ...the documents in the case of Patricia Guadalupe Felix Coronado. That day we met with Mr. Armando Melecio Felix Vasquez and Blanca Estela Coronado Ramirez, who are the parents of Patricia Felix.” This court notes that the letters submitted were not signed contemporaneously with the documents that were submitted with the stipulation for agreed upon custody, as the letters from Mr. Maldanado and Mr. Navarro were dated December 5,2014. Additionally, this court notes that the letter from Mr. Maldanado and Mr. Navarro met with appellees on December 4,2014 to translate the documents and the documents submitted to the court in the motion to incorporate stipulation, specifically the stipulation for an agreed upon custody order is purported to be signed by the appellee’s is dated October 7, 2014.

CONCLUSION:

For all of the foregoing reasons, the trial court’s orders should be affirmed.


source: Caselaw Access Project

author: SPRECHER, J.,

license: Public Domain

text:
    Jarvie v. Cumulus Media, Inc.

      C.P. of Berks County,
    No. 14-20186

      Charles V. Curley, for plaintiff/appelle.

      Richard Brian Druby, for defendant/appellant.
    Jan. 22, 2015
   SPRECHER, J.,

— Defendant appeals the order dated October 21, 2014, which granted plaintiff’s petition for preliminary injunction to enjoin and preclude defendant from enforcing non-competition and non-solicitation provisions of plaintiff’s employment agreement with defendant. This opinion is filed pursuant to Pa. R.A.P. 1925 and supplements the opinion which accompanied the order of October 21,2014.

FACTS

In 2003, plaintiff, Michael A. Jarvie, worked for Citadel Broadcasting Company (Citadel) in Wilkes-Barre, Pennsylvania. On May 7,2007, Citadel hired plaintiff as a General Sales Manager for its radio stations WQXA-FM, WMHX-FM, WCAT-FM, WIOV-FM, and WIOV-AM in Harrisburg, Lancaster, Reading, and York, Pennsylvania. Plaintiff’s duties included supervising the sales efforts through the sale of advertising time, supervising and developing account executives and assistants, attending station meetings, working with the programming and promotions departments to maximize sales opportunities, and manage the budgets of the stations’ sales departments. The general manager supervised him. Plaintiff’s salary was $45,000.00 per year with the potential for bonuses. From 2007 to 2010, plaintiff typically earned $85,000.00 to $99,000.00 per year, including bonuses.

Prior to plaintiff’s employment as the sales manager with Citadel, plaintiff executed a sales manager standard agreement (agreement). This agreement contained, inter alia, the following provisions which are the subject of this dispute:

9. (b) You will not enter into any employment or other agreement to perform services as an account executive or sales manager or perform any other services set forth in paragraph 1 hereof for any radio station with a transmission tower located within fifty (50) miles of the transmission tower of station for a period of one (1) year after the termination of your employment with company.
9. (c) You will not have any contact with and will not solicit clients or customers of station for a period of one (1) year after the termination of your employment with station for the purpose of selling airtime for any radio or television broadcaster.

(Exhibit No. 1).

In 2011, Citadel entered into an agreement to merge with defendant, Cumulus Media, Inc. The merger was completed by September 2011. Plaintiff was paid a $20,000.00 retention bonus to stay during the transition period from September 20, 2011 through March 20, 2012. He signed a separate agreement for this bonus. This agreement does not contain a non-solicitation or non-competition clause.

In November 2011, defendant began changing the terms and conditions of plaintiff’s employment. Plaintiff was demoted to account manager with a concomitant reduction in salary and duties. Plaintiff was no longer in charge of inventory or helping with pricing or doing anything in a managerial capacity. He was not eligible to receive bonuses. He no longer had a base salary and received his compensation based entirely on commissions. When the merger was completed and plaintiff became an employee of defendant, plaintiff had to give some of his clients to other salespeople because the clients had been clients of both Citadel and defendant before the merger.

In February 2014, defendant’s new regional manager assumed the supervision of the York-Lancaster cluster. He took all managerial responsibility and privileges away from plaintiff. In May 2014, the marketing manager determined that plaintiff was earning too much money and took away some of plaintiff’s existing billing accounts. Although other employees who were demoted or had changes in compensation signed new agreements with new restrictive covenants, defendant never requested plaintiff to execute a new agreement.

On October 1, 2014, plaintiff accepted a position with IHeartMedia as a Local Sales Manager. This radio station is in one of defendant’s markets. His responsibilities are to supervise, develop, and grow a team for its radio stations in Berks County, Pennsylvania. Plaintiff will also help price the inventory and work on projects to help increase the profitability of the station.

On October 1, 2014, plaintiff gave defendant his required two weeks’ notice of intent to resign. On October 2, 2014, defendant notified plaintiff that his resignation was accepted and asked him to leave immediately. Defendant then contacted IHeartMedia and indicated that it would seek to enforce the non-competition and non-solicitation provisions of the agreement if IHeartMedia permitted plaintiff to work for it. Plaintiff filed this action for declaratory judgment and sought a preliminary injunction to preclude defendant from interfering with his ability to obtain new employment and to procure business.

Ron Giovanniello is the regional vice president in Pennsylvania for defendant. He is responsible for all of defendant’s operations in the markets of Harrisburg, York, Lancaster, Reading, Allentown, and Wilkes-Barre/ Scranton, Pennsylvania. IHeartMedia is defendant’s biggest direct competitor in the business. The specific station where plaintiff worked for defendant was a country station. The IHeartMedia station where plaintiff sought employment is a contemporary hit station. Mr. Giovanniello testified that the only reason that defendant has an interest in plaintiff is that he can transfer accounts that will affect defendant’s revenue. Mr. Giovanniello does not have a non-compete agreement with defendant.

Based on the foregoing evidence, this court granted plaintiff’s motion for a preliminary injunction. Defendant filed a timely appeal.

ISSUES

Defendant raises the following issues in its concise statement of errors complained of on appeal.

1. Whether this court erred in finding that plaintiff met his burden of proof for injunctive relief because plaintiff failed to establish all of the requisite elements for a preliminary injunction.

2. Whether this court erred in finding that plaintiff met his burden of proof for injunctive relief because plaintiff failed to prove “irreparable harm” as his claim is compensable by money damages.

3. Whether this court erred in granting plaintiff’s request for injunctive relief because greater injury resulted from granting the injunction, and the issuance of an injunction substantially harmed defendant.

4. Whether this court erred in granting plaintiff’s request for injunctive relief because the preliminary injunction did not properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.

5. Whether this court erred in granting plaintiff’s request for injunctive relief because plaintiff did not prove that he is likely to prevail on the merits.

6. The injunction issued by this court is null and void because this court failed to require plaintiff to post a bond which would cover damages that are reasonably foreseeable.

7. This court erred by ruling that the restrictive covenants are not binding on plaintiff because this finding was the ultimate issue plaintiff sought to have determined through the declaratory judgment action, and the matter is properly the subject of arbitration.

8. In the alternative, this court erred by ruling that the restrictive covenants are not binding on plaintiff because this finding was the ultimate issue plaintiff sought to have determined through the declaratory judgment action, and defendant did not have a full and fair opportunity to conduct discovery, and defendant did not have a full and fair opportunity to be heard on that subject.

DISCUSSION

A preliminary injunction should be granted only if all of the following four essential prerequisites are proven: (1) a strong likelihood of success on the merits, (2) a showing of immediate and irreparable harm that cannot be compensated by money damages, (3) a showing that greater injury will result if preliminary injunctive relief is denied than if such injunctive relief is granted, and (4) a showing that a preliminary injunction would restore the status quo. Allegheny Anesthesiology Associates, Inc. v. Allegheny General Hospital, 826 A.2d 886 (Pa. Super. 2003).

This court found that plaintiff established a strong likelihood of success on the merits. An assignment of a right is not effective if it purports to make a material change in the duties of the obligor, unless the obligor assents to such changes. Id. at 892. In the case sub judice, plaintiff was demoted and his managerial duties were completely eliminated. His compensation changed. He went from a base salary with bonuses to earnings based entirely on commissions. Plaintiff no longer did the type of work for which he had been hired and for which he signed the agreement. He was hired as a supervisor/ manager and signed the agreement which was a sales manager standard agreement; defendant demoted him to a sales representative. The parties never executed a new agreement for the change of position; no evidence was submitted that plaintiff assented to the change of duties. In fact, the opposite is established.

Moreover, in the case sub judice, the main purpose of the non-compete clause is to prevent plaintiff from using his customer contacts and causing defendant a loss of revenue. This is clearly the interest defendant seeks to protect because it did not even make its regional vice president execute a similar agreement not to compete and not to solicit. Generally, interests that can be protected through non-competition covenants include trade secrets, confidential information, good will, and unique or extraordinary skills. If the non-competition covenant is inserted into the employment agreement for some improper purpose, for example, eliminating or repressing competition or to keep the employee from competing so that the employer can gain an economic advantage, the covenant will not be enforced. Hess v. Gebhard & Co. Inc., 570 Pa. 148, 808 A.2d 912 (2002).

For the above reasons, this court found that there is a strong likelihood of plaintiff’s success on the merits. Therefore, plaintiff met the first prerequisite for the grant of a preliminary injunction.

The second prong of the standard for the grant of a preliminary injunction is that there is a showing of immediate and irreparable harm that cannot be compensated by money damages. The claimed harm must be irreversible before it will be deemed irreparable. Greenmoor, Inc. v. Burchick Construction Company, Inc., 908 A.2d 310 (Pa. Super. 2006). If plaintiff is not permitted to work for his new employer, he will not have any job. Defendant effectively terminated plaintiff’s employment upon his resignation. There was no testimony that defendant told plaintiff that if he leaves, defendant would enforce the alleged non-competition agreement. In fact, as stated it is the opposite. Defendant did not try to keep plaintiff employed while seeking legal resolution. Defendant immediately fired plaintiff and then directly contacted plaintiff’s new employer, IHeartMedia, that it would seek to enforce the non-competition and non-solicitation provisions of the agreement if IHeartMedia permitted plaintiff to work for it. In one fell swoop, defendant fired plaintiff and threatened legal action to keep plaintiff from being hired by another employer. Defendant did not choose to go to court first and have the issue resolved through a declaratory action; instead, it chose self-help retaliation rather than a legal resolution.

Without employment, plaintiff has no way to support himself and his family. His damages are not compensable because he cannot be reimbursed for the loss of this job. IHeartMedia will not keep the position vacant forever, and plaintiff will lose this job opportunity. There are limited positions for plaintiff in the field where he has worked for most of his adult life. Plaintiff’s job loss is not compensable under these facts and circumstances.

The third prerequisite is that a greater injury will result if a preliminary injunction is denied rather than if it were granted. In the instant case, if the preliminary injunction were denied, plaintiff would lose forever the job from which he was fired and the new position and the immediate means to support his family. Defendant, however, would still remain in business. Defendant contends that it may lose some revenue, but in all likelihood, it would not. The two stations serve different audiences, so the same advertisers will probably continue to advertise on the same stations which they do now, and if they advertise on both stations, they probably will continue to do so. The audiences are in different localities and are not serviced by the same stations. Thus, plaintiff needs a preliminary injunction more than defendant needs to have it denied.

The last prerequisite for the granting of a preliminary injunction is a showing that it would restore the status quo. The preliminary injunction restores the status quo because plaintiff becomes an employee in the same type of position he held at Citadel and defendant continues to operate its stations in accordance with its policies.

For all the above reasons, this court determined that plaintiff had met its burden of proof for injunctive relief.

Defendant contends that the injunction is null and void because this court failed to required plaintiff to post a bond which could cover damages that are reasonably foreseeable. This issue is without merit.

This court did not find that any damages were reasonably foreseeable. At the preliminary injunction hearing defendant did not present any evidence of any loss of revenue, just speculation that it could lose some of its customers. It never requested that a bond be posted if this court were to grant injunctive relief. After receipt of defendant’s post-hearing complaint that no bond had been posted, this court promptly scheduled a hearing on this issue. Due to conflicts with counsel and their clients, this hearing has been continued several times and still has not been held. This court will order that a bond be posted at the conclusion of that hearing, if the evidence warrants it.

Defendant’s penultimate and last contentions concern this court’s finding that the non-competition clause was not binding on plaintiff which should have been the ultimate issue decided in arbitration or after a trial. These assertions are meritless.

This court found for the purposes of the preliminary injunction proceeding, that the restrictive covenants set forth in the sales manager standard agreement were not binding on plaintiff due to the reasons set forth in the discussion which accompanied the order. It did not decide the ultimate issue of a permanent injunction, but merely made findings that plaintiff would likely prevail on the merits and that a preliminary injunction was warranted at this time.

In accordance with the foregoing opinion, this court submits that its order should be affirmed and the appeal dismissed.


text:
    Frick v. Buckwalter

      C.P. of Berks County,
    No. 99-11390

      Scott E. Yaw, for plaintiff and Simon Grill, Esquire.

      Edward M. Singer, for defendant.
    Nov. 20, 2014
   SPRECHER, J.,

— Plaintiff appeals the order dated August 11, 2014, and entered August 12, 2014, which denied defendant’s request that a judgment of non pros be entered against plaintiff as moot and ordered plaintiff and his counsel, Simon Grill, Esquire, to pay counsel fees in the sum of $2,500.00 within thirty days from August 11, 2014. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

On June 16, 2014, this court entered a rule to show cause why this case should not have been terminated for inactivity and ordered the parties to appear for an argument or hearing on a later date. Plaintiff’s attorney, Simon Grill, Esquire, did not file an answer to the rule. Instead he filed a “response.” He wrote that a court order which was issued by a prior judge assigned to the case sub judice prevented the plaintiff from engaging in discovery, that counsel did not know plaintiff’s location, and that defendant, who is plaintiff’s relative, probably knows plaintiff’s location.

Defendant’s attorney did file an answer to the rule asking that plaintiff and his counsel be sanctioned because plaintiff falsely certified that he intended to proceed when Termination Notices had been issued in 2004,2006,2008, 2010, and 2012, that plaintiff’s claim was not meritorious, and that plaintiff’s lack of due diligence, improper acts, and failures to act caused defendant pecuniary loss. Defendant also submitted that two important witnesses had died and memories have faded which have prejudiced his defense. Defendant requested counsel fees of $2,500.00.

This court discovered at the hearing that the docket reflects that this case had been terminated on April 28, 2014, although the termination was not noted in the file. Consequently, this court denied as moot defendant’s request that a judgment of non pros be entered against plaintiff. It did, however, believe that defendant’s request for sanctions had merit and awarded the counsel fees.

This court was out of the country from September 3, 2014 to September 15,2014. During that time (September 5,2014), plaintiff filed the instant appeal and an emergency motion for reconsideration of the order of August 11, 2014, asking that the order be vacated in part, only as to the award of counsel fees against plaintiff and his counsel, Simon Grill, Esquire. Immediately upon return, by order dated September 16,2014, this court vacated the award of counsel fees because the case had been terminated, and it had issued the rule returnable and hearing in error.

This case had been approximately fourteen years old, an unreasonable period of time with no action being taken to move the case forward, so it was appropriately terminated. This court reluctantly agreed with the motion for reconsideration that no orders should have been issued because the case was no longer active.

ISSUES

The following issues are raised in the Concise Statement of Errors Complained of on appeal.

1. This court erred in sua sponte imposing sanctions against the plaintiff and his counsel, Simon T. Grill, Esquire.

2. This court erred in imposing sanctions against plaintiff and his counsel, Simon T. Grill, Esquire, where the defendant never filed a separate and independent motion for sanctions, nor the certification required by Pa. R.C.P. No. 1023.2(b), nor made written notice and demand upon plaintiff and/or his counsel, under and pursuant to Pa. R.C.P. No. 1023.2(b), and where the “request” for sanctions was made after the entry of final judgment.

3. This court erred in imposing sanctions against plaintiff and his counsel, Simon T. Grill, Esquire, where the defendant never filed a motion under § 2503 of the judicial code, where no evidentiary hearing on the request for sanctions was held, and where no finding of dilatory, obdurate, or vexatious conduct was made.

DISCUSSION

The grant of the emergency motion for reconsideration eliminated the attorney fees and removed all the sanctions against plaintiff and Attorney Grill. Nothing remains from the order dated August 11, 2014. Plaintiff, however, has not withdrawn his appeal; instead, he has filed a concise statement and is proceeding with his appeal. This court is not certain if plaintiff and attorney Grill are pursuing the appeal because the motion for reconsideration was granted on September 16, 2014, beyond thirty days from the order under appeal.

Pa. R.C.P. 126 states:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

This court realized that the motion was granted beyond thirty days from the date of the underlying order; however, it was timely filed, and it was not signed timely due to circumstances beyond this court’s control. Plaintiff filed his motion two days after the undersigned had left the country. Upon returning from vacation, this court immediately signed the order for reconsideration. This court disregarded the rule because it wanted to secure a speedy and inexpensive determination of this case. No one, including defendant, raised an objection to the entry of the September 16, 2014 order. This court believed that the issue was resolved and that the appeal would be withdrawn.

The underlying order was vacated regarding the sanctions. Plaintiff and attorney Grill have already obtained the relief which they wanted. Attorney Grill, however, as he has consistently done throughout this proceeding, further prolonged this case by not withdrawing this appeal. He has wasted the time of this court and the time of the Superior Court in seeking redress for relief that has already been granted. If attorney Grill had immediately notified this court by including in his “response” that the case had been terminated when the original rule had been entered, there would have been no hearing and no relief would have been necessary. Instead he filed a “response” which made no mention of the termination and needlessly protracted the underlying proceeding.

Plaintiff and attorney Grill have been returned to the status quo. For these reasons, this court submits that the appeal should be dismissed.