J-A02012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID SEYMOUR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAREN DEVINE : : Appellant : No. 542 WDA 2021
Appeal from the Decree Entered April 2, 2021 In the Court of Common Pleas of Allegheny County Civil Division at No(s): Case No. FD-18-002729-017
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MARCH 11, 2022
Appellant, Karen Devine (hereinafter “Wife”), appeals from the decree
entered on April 2, 2021. We affirm.
The trial court ably summarized the underlying facts and procedural
posture of this case:
Litigation commenced in this case in January 2018 when Wife filed a Complaint for Spousal Support and [David Seymour (hereinafter “Husband”)] filed a single-count Complaint in Divorce. On January 22, 2018, Jay B. Kranich, Esquire, entered his Praecipe for Appearance on behalf of Wife. On February 1, 2018, Husband's counsel filed an Acceptance of Service of the Complaint in Divorce signed by Attorney Kranich on behalf of Wife. On May 25, 2018, Husband's counsel filed Proof of Service that the Affidavit under Section 3301(d) had been served on Attorney Kranich on behalf of Wife.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A02012-22
On or about June 6, 2018, Wife submitted a Protection from Abuse (PFA) Petition and Temporary Order in which she alleged that a worker had informed her that Husband, who had been living in North Carolina, was coming to her house without her authorization. She also alleged that for several months she had been receiving threatening text messages and that her phone, AOL, and Facebook accounts had been hacked. An order granting temporary protection was entered on June 6, 2018, and scheduled a final hearing on the matter for June 21, 2018.
Shortly thereafter, Husband presented a Motion for Special Relief: To Dismiss and Expunge Frivolous Action and Award Sanctions. In his Motion, Husband objected to the entry of the temporary PFA order on the grounds that Wife had failed to establish a prima facie case of abuse. In addition, Husband informed the [trial court] that on the day the alleged "abuse" was to have occurred, June 5, 2018, that Wife had actually emailed him that she was upset that he had not responded to her phone calls while also informing him that he was not to be on her property and that she would obtain an emergency order if need be. By Order of Court dated June 15, 2018, [the trial court] denied and/or deferred Husband's requested relief.
On June 19, 2018, Wife, through counsel, filed a Petition Raising Claims. Two days later, the PFA matter was resolved when the parties entered into a Consent Agreement and Order for Expiration of Temporary PFA Order.
A few months later, on August 8, 2018, Husband served Wife, through her counsel, with a Motion to Compel Discovery and Other Relief. In his Motion, Husband alleged that a complex hearing to address Wife's support claim was scheduled for August 21, 2018, and that in the meantime, under an Interim Consent Order dated March 6, 2018, he was obligated to continue paying her expenses including, but not limited to, gas, electricity, water/sewage, mortgage, car payment, and car insurance. However, Husband averred that Wife had failed to respond to his discovery requests that were served on her counsel on June 20, 2018. Husband averred that he was unable to prepare for the complex hearing or submit a Pretrial Statement without the information requested from Wife, and, as such, argued the hearing needed to be
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rescheduled and that Wife should have to pay him $750 in counsel fees. By Order of Court dated August 15, 2018, the parties, through counsel, consented to Husband's proposed order, which, inter alia, obligated Wife to provide discovery responses in ten days from the date of the order and rescheduled the complex hearing to November 29, 2018.
On September 17, 2018, Husband served Wife, through her counsel, with another Motion to Compel Discovery and Petition for Sanctions in which he, again, averred that Wife had failed to respond to his discovery requests that were now two months deficient. Husband argued he was prejudiced by Wife's continued delay to comply with his discovery requests and, again, requested $750 in counsel fees. By Order of Court dated September 24, 2018, [the trial court] ordered Wife to produce discovery responses in twenty days and deferred the issue of counsel fees to equitable distribution.
On November 26, 2018, Husband served Wife, through her counsel, with a Petition for Special Relief: Dismissal of Support Complaint and Complex Hearing, in which he argued that Wife still had not provided him with any discovery responses after four months and despite numerous extensions of time. Husband argued Wife was acting in bad faith by continually agreeing to extensions of time to produce discovery responses and then blatantly disregarding the same, all while he was obligated to continue paying her household expenses. As a result, Husband requested dismissal of Wife's support claim, cancellation of the complex hearing, and an award of $2,250 in counsel fees. By Order of Court dated November 19, 2018, [the trial court] granted Husband's Petition.
On January 28, 2019, Husband served Wife, through her counsel, with a Petition for Special Relief: Enforcement of Orders of Court and/or Dismissal of Economic Claims. In his Petition, Husband averred that he had never been served with Wife's Petition Raising Claims previously filed on June 19, 2018, and that only upon a routine docket check in December 2018 did he discover it. Husband argued that despite her Petition Raising Claims, Wife had never filed an Inventory nor, in the span of six months and two orders to compel compliance, provided any discovery responses. Husband requested the Court set firm deadlines by which
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Wife must comply or risk dismissal of all of her claims. By Order of Court dated January 28, 2019, [the trial court] denied Husband's Petition.
On March 25, 2019, Wife, through counsel, presented a Petition for Civil Contempt/Petition for Special Relief. In her Petition, Wife alleged that despite the March 6, 2018 Interim Consent Order, Husband stopped making payments for her gas, electricity, and water/sewage, and that he had unilaterally closed the respective accounts. Wife alleged that she was fearful that Husband would also stop paying the mortgage and requested [the trial court] enforce the March 6, 2018 Interim Consent Order.
Husband submitted a Response to Petition for Civil Contempt/Petition for Special Relief, in which he argued that he was no longer obligated to pay for Wife's expenses because such expenses were in lieu of spousal support and/or APL and that Wife's support claims had already been dismissed with prejudice. Husband requested that Wife's Petition be denied and that he be awarded another $1,000 in counsel fees. By Order of Court dated March 25, 2019, [the trial court] denied Wife's request that Husband resume paying her expenses and deferred the issue to a contempt hearing to be held on July 8, 2019.
On June 17, 2019, Husband served on Wife, through her counsel, with a Petition for Enforcement and Other Special Relief. In his Petition, Husband alleged that Wife had failed to file her Inventory, as required under the Rules of Civil Procedure and pursuant to the May 14, 2019 Order of Court directing her to do so within twenty days. Husband argued that he was unable to proceed with equitable distribution until Wife complied. Husband also argued that Wife was willfully non-compliant with the previous orders granting his counsel fees totaling $2,250. Husband requested that Wife be ordered to file her Inventory and that his claim for contempt be consolidated with the July 8, 2019 proceeding. By Order of Court dated June 17, 2019, [the trial court] granted Husband's Petition.
On June 26, 2019, Wife, through counsel, filed her Inventory and Appraisement. On July 9, 2019, the parties, through counsel, entered into a Consent Order of Court under which
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the parties agreed to split Wife's expenses and Husband's claim for counsel fees was deferred to equitable distribution.
By Consent Order of Court dated September 25, 2019, the parties, through counsel, agreed to attend a three-hour conciliation with the Master, which was scheduled to occur, via separate Court Order, on December 19, 2019. On October 15, 2019, Thomas J. Vail, Esquire, entered his Praecipe for Appearance on behalf of Wife.
On November 4, 2019, Husband served Wife, through her counsel, with a Petition to Compel Discovery, Contempt and Other Relief. In his Petition, Husband alleged that he had served discovery requests on Wife on September 21, 2019, but that she had failed to provide any responses thereto. Husband reminded the Court that this was not the first time Wife had failed to comply with discovery requests or motions to compel. Husband argued he was forced to incur more legal expenses as a result of her lack of compliance, so he requested that Wife be ordered to produce discovery responses in ten days and pay $900 in counsel fees. By Order of Court dated November 4, 2019, [the trial court] ordered Wife to produce discovery responses in ten days and deferred the rest of the issues to the Master's conciliation.
On December 30, 2019, Husband served [Wife], through her counsel, with a Petition for Special Relief: Dismissal of Economic Claims or Alternative Motion in Limine. In his Petition, Husband alleged that after agreeing to cancel the Master's conciliation because of [Wife’s] two counsels' unavailability for the same, and to schedule a trial instead, and after presenting his Petition to Compel Discovery, Contempt and Other Relief, which was granted, Wife had still failed to provide any responses thereto. Husband argued that he had presented numerous motions to compel and that Wife had ignored all of them and that he had no way to prepare for trial without the information from her. Husband also argued that Wife's continued failure to respond was prejudicial, dilatory, obdurate, and vexatious, and, that she should be precluded from offering evidence on her behalf at trial. Husband requested that Wife's economic claims be dismissed and that the trial proceed on his claims only, or, in the alternative, that Wife be precluded from offering evidence on her behalf at trial and pay $4,050 in counsel fees. By Order
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of Court dated December 30, 2019, [the trial court] granted Husband's request for fees and ordered Wife to comply with the discovery request within five days or she would be precluded from offering evidence at trial. After five days, Wife failed to comply with the December 30, 2019 Order of Court.
On August 4, 2020, Husband served on Wife, through her counsel, with a Petition for Special Relief: Selection of Hearing Date. In his Petition, Husband alleged that after he and Wife's counsels had agreed to cancel the Master's conciliation and proceed to trial, his ability to schedule the same had been delayed due to the COVID-19 pandemic. Husband further alleged that the docket clerk contacted his counsel in July 2020 to schedule the trial for sometime in either September or October. Husband's counsel reached out to Attorney Kranich who informed her that he did not believe Wife wished for him to continue representing her. As for Attorney Vail, Husband alleged that he initially said he was unavailable during the proposed time period, but then ultimately said he no longer represented Wife. After not hearing back from Attorney Kranich, although noting that neither he nor Attorney Vail had withdrawn from the case, Husband requested, inter alia, [the trial court] grant him leave to schedule the trial without Wife's consent or agreement as to the date. By Order of Court dated August 11, 2020, [the trial court] granted Husband's Petition.
Thereafter, by Order of Court dated August 18, 2020, the matter was scheduled for trial before Master [Serena M. Newsom] to occur on October 14, 2020. By Order of Court dated October 23, 2020, Master Newsom rescheduled the trial for November 13, 2020, due to her concern that the August 18, 2020 Order of Court scheduling the matter for October 14, 2020, had been sent to Attorney Kranich, who may not have been Wife's counsel, and that Wife may not have known about the trial date. The Master's October 23, 2020 Order of Court that rescheduled the trial was mailed to Wife's home address.
An equitable distribution trial was held before Master Newsom on November 13, 2020. Wife did not attend or participate at trial. Master Newsom filed her Report and Recommendation ("Master's Report") on January 19, 2021. On February 17, 2021, after no exceptions were filed, [the trial court] entered
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an Order of Court to Adopt the Report and Recommendation of the Master as a Final Decree.
On March 9, 2021, Husband submitted a Motion to Perfect Service of Affidavit under 3301(d). In his Motion, Husband alleged that although he had previously served his Affidavit under 3301(d) on Wife's counsel via electronic mail on May 25, 2018, the docket clerk refused to process his Praecipe to Transmit the Record because service by electronic mail of the Affidavit was not acceptable under the Rules of Civil Procedure. Husband argued that he had perfected service of his Affidavit because Wife's counsel had signed an Acceptance of Service of the same and that Wife was clearly aware of the divorce proceeding because she previously had filed her own Petition Raising Claims. Husband served this Motion on Wife directly via electronic mail. The undersigned's Law Clerk communicated to Wife that if she wished to submit a response to Husband's motion that she must do so by noon on March 16, 2021, via electronic mail.
On March 15, 2021, Wife, through new counsel, Amie A. Thompson, Esquire, submitted a Motion to Vacate and Reconsider the Orders of Court Dated December 30, 2019 Precluding Evidence and February 12, 2021 Adopting the Report and Recommendation of the Master as a Final Decree ("Motion for Reconsideration"). On March 16, 2021, Husband submitted a Response to Motion to Vacate and Reconsider the Orders of Court Dated December 30, 2019 and February 21, 2021 and New Matter. By Order of Court dated March 16, 2021, [the trial court] granted Husband's Motion to Perfect Service of Affidavit under 3301(d).
Trial Court Opinion, 6/4/21, at 3-12 (footnotes omitted).
On April 2, 2021, the trial court entered the final divorce decree and
Wife filed a timely notice of appeal. Wife raises the following claims on appeal:
1. Did the trial court abuse[] its discretion by precluding [Wife] from presenting any testimony, documents or other related evidence at the time of an equitable distribution hearing by issuing interlocutory order dated December 30, 2019 and failing to schedule an evidentiary hearing regarding
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the same, thereby denying [Wife] due process and an opportunity to be heard?
2. Did the trial court err in adopting the Report and Recommendation of the Master as a final decree when the report acknowledged there was defective service of the final equitable distribution hearing scheduling order via U.S. Mail upon the then [pro se Wife], and service only via email addresses provided by an adversarial Plaintiff, when [Wife] never agreed to service by electronic transmission nor listed any email on a legal paper filed in connection with the action as required for electronic service by 231 Pa.Code § 205.4 (g)(1)(ii) and where service upon [Wife] could not be certified by [Husband] nor the court?
3. Did the trial court deprive [Wife] of due process and an opportunity to be heard at the final equitable distribution hearing in this matter, including the right to object to evidence and cross-examine [Husband], by failing to provide proper service of the final equitable distribution hearing scheduling order pursuant to Pa.R.C.P. 440(a)(2)(i)?
4. Did the trial court err by permitting Plaintiff to perfect service and obtain a Divorce Decree pursuant to the adoption of the Report and Recommendation of the Master as a final decree, but without proper service of the Affidavit Under Section 3301(d) upon Defendant?
Wife’s Brief at 18.
We have reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Jennifer Satler. We conclude that Wife is not entitled to relief
in this case, for the reasons expressed in Judge Satler’s June 4, 2021 opinion.
Therefore, we affirm on the basis of Judge Satler’s thorough opinion and adopt
it as our own. In any future filing with this or any other court addressing this
ruling, the filing party shall attach a copy of Judge Satler’s June 4, 2021
opinion.
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Decree affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/11/2022
-9- Circulated 03/04/2022 03:22 PM
Allegheny County - Department of Court Records Civil Division - Filings Information
County caseID:FD-18-002729 Case Description:Devine vs Seymour 017 Official Docket Entry, Sort By Document Number Ascending
Document Filed Date Title/Entry Entry Classification Filed By Number
1 06/04/2021 Opinion Official Docket Entry Jennifer Satler
(Index Page-1) 1-Opinion
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION
DAVID SEYMOUR, No.: FD 18-002729-017 18-002729-017 386 WDA 2021 Appellee/Plaintiff, 542 WDA 2021
v. V.
OPINION KAREN DEVINE,
Appellant/Defendant. BY:
HONORABLE JENNIFER SATLER 706 City-County Building 414 Grant Street Pittsburgh, PA 15219 15219
co co c .< c-« COPIES TO: � ' g be. cc0.- -. ·A1=.:: '· 2- '±---.D Counsel for Appellee: f - 6 " _ Eh>=d c cw c Counsel for Appellant: Arnie Amie A. Thompson, Esq. 3045 West Liberty Avenue, Suite #1 Pittsburgh, PA 15216 15216 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA FAMILY DIVISION
DAVID SEYMOUR, No.: 18-002729-017 FD 18-002729-017 Appellee/Plaintiff, WDA2021 386 WDA 2021 542 WDA 2021 2021 v. V.
KAREN DEVINE,
Appellant/ Defendant.
Opinion SATLER, J., June 4, 2021
Appellant/Defendant Karen Devine ("Wife") appeals this Court's February
12, 2021 12, 2021 Order Order of of Court Court adopting 19, 2021 Master's Report and adopting the January 19,
as aa Final Order, Recommendation as Order, as well as the March 31, 2021 Divorce Decree.
On On March 15, 15, 2021, Wife timely filed her Notice of of Appeal to the February
12, 12, 2021 2021 Order Order of of Court. Court. The Appeal at 386 Appeal was docketed at 386 WDA 2021. By Order
of of Court dated March Court dated March 23, 23, 2021, 2021, this Court Court directed Wife to file aa Concise
Statement Statement of of Matters Matters Complained § l 925(A)(2) of on Appeal pursuant to Pa. R.A.P. §1925(A)(2) Complained of
(i) ("Statement"). Wife (i) ("Statement"). Wife filed filed her Statement Statement on on April 13, 13, 2021. 2021.
On On April April 30, 30, 2021, 2021, Wife Wife filed filed aa second second Notice of of Appeal Appeal to the March March 31, 31,
2021 2021 Divorce Divorce Decree. Decree. The The Appeal Appeal was was docketed docketed at at 542 542 WDA 2021. 2021. By Order of By Order of
Court Court dated dated May May 10, I 0, 20021, 20021, this this Court Court directed directed Wife to file file aa second second Statement Statement
22 § l 925(A)(2)(i). Wife filed her second Statement on June 1, pursuant to Pa. R.A.P. §1925(A)(2)(i). 1,
2021. Because both Statements identified the exact same issues, both Appeals will
be addressed as one below.
BACKGROUND
Litigation commenced in this case in January 2018 when Wife filed a
Complaint for Spousal Support and Husband filed a single-count Complaint in
Divorce. On January 22, 2018, Jay B. Kranich, Esquire, entered his Praecipe for
Appearance on behalf of Wife. On February 1, 1, 2018, Husband's counsel filed an
Acceptance of Service of the Complaint in Divorce signed by Attorney Kranich on
behalf of Wife. On May 25, 2018, Husband's counsel filed Proof of Service that
the Affidavit under Section 3301(d) had been served on Attorney Kranich on behalf
of Wife.
On or about June 6, 2018, Wife submitted a Protection from Abuse (PFA)
Petition and Temporary Order in which she alleged that a worker had informed her
that Husband, who had been living in North Carolina, was coming to her house
without her authorization. She also alleged that for several months she had been
receiving threatening text messages and that her phone, AOL, and Facebook
accounts had been hacked. An order granting temporary protection was entered on
June 6, 2018, and scheduled a final hearing on the matter for June 21, 2018.
Shortly thereafter, Husband presented a Motion for Special Relief: To
3 Dismiss and Expunge Frivolous Action and Award Sanctions. In his Motion,
Husband objected to the entry of the temporary PFA order on the grounds that Wife
had failed to establish a prima facie case of abuse. In addition, Husband informed
the Court that on the day the alleged "abuse" was to have occurred, June 5, 2018,
that Wife had actually emailed him that she was upset that he had not responded to
her phone calls while also informing him that he was not to be on her property and
that she would obtain an emergency order if need be. By Order of Court dated
June 15, 15, 2018, this Court denied and/or deferred Husband's requested relief.
19, 2018, Wife, through counsel, filed a Petition Raising Claims. On June 19,
Two days later, the PFA matter was resolved when the parties entered into a
Consent Agreement and Order for Expiration of Temporary PFA Order.
A few months later, on August 8, 2018, Husband served Wife, through her
counsel, with a Motion to Compel Discovery and Other Relief. In his Motion,
Husband alleged that a complex hearing to address Wife's support claim was
scheduled for August 21, 2018, and that in the meantime, under an Interim Consent
Order dated March 6, 2018, he was obligated to continue paying her expenses
including, but not limited to, gas, electricity, water/sewage, mortgage, car payment,
and car insurance. However, Husband averred that Wife had failed to respond to
his discovery requests that were served on her counsel on June 20, 2018. 201 8. Husband
averred that he was unable to prepare for the complex hearing or submit a Pretrial
Statement without the information requested from Wife, and, as such, argued the
4 hearing needed to be rescheduled and that Wife should have to pay him $750 in
15, 2018, the parties, through counsel fees. By Order of Court dated August 15,
counsel, consented to Husband's proposed order, which, inter alia, obligated Wife
to provide discovery responses in ten days from the date of the order and
rescheduled the complex hearing to November 29, 2018.
17, 2018, Husband served Wife, through her counsel, with On September 17,
another Motion to Compel Discovery and Petition for Sanctions in which he,
again, averred that Wife had failed to respond to his discovery requests that were
now two months deficient. Husband argued he was prejudiced by Wife's
continued delay to comply with his discovery requests and, again, requested $750
in counsel fees. By Order of Court dated September 24, 2018, this Court ordered
Wife to produce discovery responses in twenty days and deferred the issue of
counsel fees to equitable distribution.
On November 26, 2018, Husband served Wife, through her counsel, with a
Petition for Special Relief: Dismissal of Support Complain and Complex Hearing,
sti11 had not provided him with any discovery in which he argued that Wife still
responses after four months and despite numerous extensions of time. Husband
argued Wife was acting in bad faith by continually agreeing to extensions of time
to produce discovery responses and then blatantly disregarding the same, all while
he was obligated to continue paying her household expenses. As a result, Husband
requested dismissal of Wife's support claim, cancellation of the complex hearing,
5 and an award of $2,250 in counsel fees. By Order of Court dated November 19, 19,
2018, this Court granted Husband's Petition.
On January 28, 2019, Husband served Wife, through her counsel, with a
Petition for Special Relief: Enforcement of Orders of Court and/or Dismissal of
Economic Claims. In his Petition, Husband averred that he had never been served
with Wife's Petition Raising Claims previously filed on June 19, 19, 2018, and that
only upon a routine docket check in December 2018 did he discover it. Husband
argued that despite her Petition Raising Claims, Wife had never filed an Inventory
nor, in the span of six months and two orders to compel compliance, provided any
discovery responses. Husband requested the Court set firm deadlines by which
Wife must comply or risk dismissal of all of her claims. By Order of Court dated
January 28, 2019, this Court denied Husband's Petition.
On March 25, 2019, Wife, through counsel, presented a Petition for Civil
Contempt/Petition for Special Relief. In her Petition, Wife alleged that despite the
March 6, 2018 Interim Consent Order, Husband stopped making payments for her
gas, electricity, and water/sewage, and that he had unilaterally closed the respective
accounts. Wife alleged that she was fearful that Husband would also stop paying
the mortgage and requested the Court enforce the March 6, 2018 Interim Consent
Order.
Husband submitted a Response to Petition for Civil Contempt/Petition for
Special Relief, in which he argued that he was no longer obligated to pay for
6 Wife's expenses because such expenses were in lieu of spousal support and/or APL
and that Wife's support claims had already been dismissed with prejudice.
Husband requested that Wife's Petition be denied and that he be awarded another
$1,000 in counsel fees. By Order of Court dated March 25, 2019, this Court
denied Wife's request that Husband resume paying her expenses and deferred the
201 9. issue to a contempt hearing to be held on July 8, 2019.
On June 17, I 7, 2019, 201 9, Husband served on Wife, through her counsel, with a
Petition for Enforcement and Other Special Relief. In his Petition, Husband
alleged that Wife had failed to file her Inventory, as required under the Rules of
14, 2019 Order of Court directing her to Civil Procedure and pursuant to the May 14,
so within twenty days. Husband argued that he was unable to proceed with do so
equitable distribution until Wife complied. Husband also argued that Wife was
willfully non-compliant with the previous orders granting his counsel fees totaling
$2,250. Husband requested that Wife be ordered to file her Inventory and that his $2,250.
claim for contempt be consolidated with the July 8, 8, 2019 2019 proceeding. By Order of
Court dated June 17, Court 17, 2019, 20 l 9, this Court granted Petition. granted Husband's Petition.
On 26, 2019, On June 26, 2019, Wife, through counsel, counsel, filed her Inventory and Inventory and
Appraisement. Appraisement. On On July 9, 9, 2019, 2019, the parties, through counsel, entered into aa
Consent Consent Order Order of of Court Court under under which which the parties agreed agreed to split Wife's expenses and split Wife's and
Husband's Husband's claim claim for for counsel counsel fees was deferred deferred to to equitable distribution.
By By Consent Consent Order Order of of Court Court dated dated September 25, 2019, September 25, 20 I 9, the the parties, through
77 counsel, agreed to attend a three-hour conciliation with the Master, which was
scheduled to occur, via separate Court Order, on December 19, 20 I 9. On October 19, 2019.
I 5, 2019, Thomas J. Vail, Esquire, entered his Praecipe for Appearance on behalf 15,
On November 4, 2019, Husband served Wife, through her counsel, with a
Petition to Compel Discovery, Contempt and Other Relief. In his Petition,
Husband alleged that he had served discovery requests on Wife on September 21,
2019, but that she had failed to provide any responses thereto. Husband reminded
the Court that this was not the first time Wife had failed to comply with discovery
requests or motions to compel. Husband argued he was forced to incur more legal
expenses as a result of her lack of compliance, so he requested that Wife be ordered
to produce discovery responses in ten days and pay $900 in counsel fees. By
Order of Court dated November 4, 2019, this Court ordered Wife to produce
discovery responses in ten days and deferred the rest of the issues to the Master's
conciliation.
On December 30, 2019, Husband served with, through her counsel, with a
Petition for Special Relief: Dismissal of Economic Claims or Alternative Motion
in Limine. In his Petition, Husband alleged that after agreeing to cancel the
Master's conciliation because of her two counsels' unavailability for the same, and
to schedule a trial instead, and after presenting his Petition to Compel Discovery,
Contempt and Other Relief, which was granted, Wife had still failed to provide any
8 responses thereto. Husband argued that he had presented numerous motions to
compel and that Wife had ignored all of them and that he had no way to prepare for
trial without the information from her. Husband also argued that Wife's continued
failure to respond was prejudicial, dilatory, obdurate, and vexatious, and, that she
should be precluded from offering evidence on her behalf at trial. Husband
requested that Wife's economic claims be dismissed and that the trial proceed on
his claims only, or, in the alternative, that Wife be precluded from offering
evidence on her behalf at trial and pay $4,050 in counsel fees. By Order of Court
dated December 30, 2019, this Court granted Husband's request for fees and
ordered Wife to comply with the discovery request within five days or she would
be precluded from offering evidence at trial. After five days, Wife failed to comply
with the December 30, 2019 Order of Court.
On August 4, 2020, Husband served on Wife, through her counsel, with a
Petition for Special Relief: Selection of Hearing Date. In his Petition, Husband
alleged that after he and Wife's counsels had agreed to cancel the Master's
conciliation and proceed to trial, his ability to schedule the same had been delayed
due to the COVID-19 pandemic. Husband further alleged that the docket clerk
contacted his counsel in July 2020 to schedule the trial for sometime in either
September or October. Husband's counsel reached out to Attorney Kranich who
informed her that he did not believe Wife wished for him to continue representing
her. As for Attorney Vail, Husband alleged that he initially said he was unavailable
9 during the proposed time period, but then ultimately said he no longer represented
Wife. After not hearing back from Attorney Kranich, although noting that neither
alia, he nor Attorney Vail had withdrawn from the case, Husband requested, inter alio,
the Court grant him leave to schedule the trial without Wife's consent or agreement
11, 2020, this Court granted as to the date. By Order of Court dated August 11,
Hus band's Petition. Husband's
18, 2020, the matter was Thereafter, by Order of Court dated August 18,
14, 2020. By scheduled for trial before Master Newsom to occur on October 14,
of Court dated October 23, 2020, Master Newsom rescheduled the trial for Order of
13, 2020, due to her concern that the August 18, November 13, 18, 2020 Order of Court
scheduling scheduling the matter for October 14, 14, 2020, had been sent to Attorney Kranich,
who may not have been Wife's counsel, and that Wife may not have known about
the trial date. The Master's October 23, 2020 Order of of Court that rescheduled the
trial was mailed to Wife's home address) address.1
An equitable distribution trial was held before Master Newsom on
13, 2020. November 13, 2020. Wife did not attend or participate at trial. Master Newsom
Filed filed her Report and and Recommendation ("Master's ("Master's Report") on January 19, 19, 2021.
On On February 17, 17, 2021, 2021, after after no exceptions exceptions were filed, this Court Court entered an an Order
of of Court Court to Adopt the the Report and and Recommendation of of the Master as as aa Final
1The The zip zip code code on on this this Order Order of of Court Court was was incorrectly identified, an incorrectly identified, an issue issue that that will will be be discussed discussed below. below.
10 10 Decree.
On March 9, 2021, Husband submitted a Motion to Perfect Service of
330l(d). In his Motion, Husband alleged that although he had Affidavit under 3301(d).
330 I ( d) on Wife's counsel via electronic- previously served his Affidavit under 3301(d)
mail on May 25, 2018, the docket clerk refused to process his Praecipe to Transmit
the Record because service by electronic mail of the Affidavit was not acceptable
under the Rules of Civil Procedure. Husband argued that he had perfected service
of his Affidavit because Wife's counsel had signed an Acceptance of Service of the
same and that Wife was clearly aware of the divorce proceeding because she
previously had filed her own Petition Raising Claims. Husband served this Motion
on Wife directly via electronic mail. The undersigned's Law Clerk communicated
to Wife that if she wished to submit a response to Husband's motion that she must
do so by noon on March 16, 16, 2021, via electronic mail.
On March 15, 15, 2021, Wife, through new counsel, Arnie Amie A. Thompson,
Esquire, submitted a Motion to Vacate and Reconsider the Orders of Court Dated
December 30, 2019 Precluding Evidence and February 12, 12, 2021 2021 Adopting the
Report and Recommendation of the Master as a Final Decree ("Motion for
Reconsideration"). On March 16, 16, 2021, Husband submitted a Response to Motion
to Vacate and Reconsider the Orders of Court Dated December 30, 2019 and
February 21, 2021 2021 and New Matter. By Order of Court dated March 16, 16, 2021, this
11 11 Court granted Husband's Motion to Perfect Service of Affidavit under 3301(d).2 3301().
17, 2021, this Court received electronic notification from the On March 17,
Superior Court of Pennsylvania that a Notice of Appeal had been filed in this case.
Pursuant to Appellate Rule of Procedure 1701(b), 170 I (b ), this Court concluded that it
lacked jurisdiction to rule on Wife's Motion for Reconsideration. For this reason,
the undersigned's Law Clerk notified counsel via email that it would not be ruling
on Wife's Motion for Reconsideration or Husband's Response thereto.
MATTERS COMPLAINED OF ON APPEAL
In her Statements, Wife identifies the following issues on appeal:
1. I. Did the trial court err in adopting the Report and Recommendation of the Master as a final decree when the report acknowledged there was defective service of the final equitable distribution hearing scheduling order via U.S. Mail upon the then pro-se Defendant, and service only via email addresses provided by an adversarial Plaintiff, when Defendant never agreed to service by electronic transmission nor listed any email on a legal paper filed in connection with the action as required for electronic service by 231 231 Pa.Code §205.4(g)(1)(ii) §205.4(g)(l)(ii) and where service upon Defendant could not be certified by Plaintiff nor the court?
2. Did the trial court deprive Defendant of due process and an opportunity to be heard at the final equitable distribution hearing in this matter, including the right to
22Wife submitted a Response to Husband's Motion to Perfect Service of Affidavit under 3301(d). 330 I (d). However, because the Response was submitted after this Court's noon submission deadline for responsive pleadings, as set forth in its Standard Operating Procedures, said Response was rejected.
12 12 object to evidence and cross-examine Plaintiff, by failing to provide proper service of the final equitable distribution hearing scheduling order pursuant to Pa.R.C.P. 440(a)(2)(i)?
3. Did the trial court abuse its discretion by precluding Defendant from presenting any testimony, documents or other related evidence at the time of an equitable distribution hearing by issuing interlocutory order dated December 30, 2019 and failing to schedule a contempt hearing regarding the same, thereby denying Defendant due process and an opportunity to be heard?
4. By declining to rule on Defendant's Request for Reconsideration of the Trial Court's Order Adopting the Report and Recommendation of the Master as a Final Decree, including counsel's belief that Defendant may lack legal competency and require a Guardian Ad Litem, did the trial court violate Defendant's rights under the I 990 (ADA), 42 Americans With Disabilities Act of 1990 U.S.C. 12132, I 2132, which guarantees disabled individuals access to public entities and operates to protect disabled persons restrained by barriers to court facilities?
5. Did the trial court err by declining to rule and issue an order on Defendant's Request for Reconsideration of the Trial Court's Order Adopting the Report and Recommendation of the Master as a Final Decree, citing lack of jurisdiction via email alone?
6. Did the trial court err by permitting Plaintiff to perfect service and obtain a Divorce Decree pursuant to the adoption of the Report and Recommendation of the Master as a final decree, but without proper service of the Affidavit Under Section 3301(d) 330 I ( d) upon Defendant?
13 13 DISCUSSION
Issues One & Two
Wife's first two issues on Appeal relate to whether this Court erred by
adopting the Master's Report as a final decree when the Master's Report identified
defective service of the scheduling order to Wife. Pennsylvania Rule of Civil
1920.55-2 sets forth the procedure for the filing of a Master's Report Procedure 1920.55-2
I 920.55-2(b), parties have twenty days to and exceptions thereto. Pursuant to Rule 1920.55-2(b),
file exceptions to a Master's Report and matters not covered by an exceptions
I 920.55-2(d), if no exceptions are filing are deemed waived. Pursuant to Rule 1920.55-2(d),
filed, then this Court is to review the Report and, if approved, shall enter a final
decree.
In this case, the Master's Report was filed on January 19, 19, 2021. Notice of
the Filing and Service of the Master's Report was also filed on January 19, 19, 2021.
Both the Master's Report and the Notice thereof were mailed to Wife's home
address with the correct zip code (15025). ( 15025). Neither party filed exceptions to the
Master's Report and, as a result, this Court adopted it as a final decree. Although
this Court acknowledges the Master raised concerns that the October 23, 2020
scheduling order was mailed to Wife's home address with an incorrect zip code
(15205), this Court was satisfied with the Master's conclusion that service was
nonetheless effectuated.3 effectuated.3
33 See Master's Report, page 2, footnote 6.
14 14 service of More importantly, whatever concerns that existed with service of the
of the Master's Report itself scheduling order are negated by the fact that service of itself
address with aa correct zip code, and the Notice thereof were mailed to Wife's home address
she nevertheless failed to file exceptions a fact that Wife does not dispute, and that she exceptions
to the same. same. "Claims "Claims which have not been raised in the trial court may not be may not be
793 A.2d 968, raised for the first time on appeal." Mazlo v. Kaufman, 793 968, 969 969
1920.55-2(d) makes clear (Pa.Super 2002). Rule 1920.55-2(d) clear that matters not covered covered by
are waived. Thus, because Wife failed to file exceptions are file exceptions to the exceptions to the Master's Master's
Report regarding lack of of service service of of the October October 23, 23, 2020 2020 scheduling order, the scheduling order, the
of service issue of service is waived. waived. As aa result, this this issue issue is is without without merit merit and and should should be be
dismissed.
Issue Three Issue Three
issue on Wife's third issue on appeal is whether appeal is whether this this Court Court erred erred by by issuing the issuing the
December 30, December 30, 2019 2019 Order Order of of Court Court that, inter alia, that, inter alia, precluded Wife from precluded Wife from presenting presenting
evidence at evidence at the the final final equitable distribution hearing. equitable distribution hearing. Pennsylvania Rule of Pennsylvania Rule of
Appellate Appellate Procedure 903(a) 903(a) sets sets the the general time frame general time frame for for the the filing of aa notice filing of notice of of
appeal appeal to to within within 30 30 days from entry days from of the entry of the order order being being appealed. There isis no appealed. There no
dispute dispute that that Wife Wife failed failed to to file file aa notice notice of of appeal of the appeal of the December December 30, 30, 2019 2019 Order Order
of of Court Court within within 30 30 days of its days of its entry. Thus, because entry. Thus, because Wife Wife did did not not timely file aa timely file
notice notice of of appeal appeal to to the the December December 30, 30, 2019 2019 Order Order of of Court, Court, any issues with any issues with that that
order order are are waived. waived. As As aa result, result, this this issue issue is is without without merit merit and and should should be be dismissed. dismissed.
15 15 Issue Four
Wife's fourth issue on appeal is whether this Court erred by declining to rule
on her Motion for Reconsideration. Pennsylvania Rule of Appellate Procedure
170 I provides that after the filing of a notice of appeal, a trial court generally may 1701
not proceed further in the matter. In the event a trial court has been served with a
motion for consideration, subsection (b)(3) (b )(3) explains that the trial court may only
grant reconsideration if both the motion and order granting reconsideration were
filed within the time prescribed for filing a notice of appeal, which, as stated
above, was 30 days.
Thus, Wife had 30 days to file a notice of appeal to the February 12, 12, 2021
Order of Court that adopted the Master's Report as a final decree. By this Court's
calculation, Wife's deadline to file an appeal was March 15, 15, 2021. Wife's Motion
for Reconsideration was submitted to this Court on March 15, 15, 2021. Pursuant to
the undersigned's Standard Operation Procedures, non-emergency motions will not
be ruled upon until seven days has passed, unless otherwise agreed by counsel, and
the opposing side has up until noon on the seventh day to submit a responsive
pleading. As such, Wife's Motion for Reconsideration was not scheduled to be
ruled by this Court until March 22, 2021.
However, on March 17, 17, 2021, this Court received electronic notification
from the Superior Court of Pennsylvania that a Notice of Appeal had been filed in
16 16 15, 2021.4 Pursuant to Rule 1701(b)(3) this case on March 15, 1701 (b )(3) of the Pennsylvania
Rules of Appellate Procedure, this Court determined that it lacked jurisdiction to
rule on Wife's Motion for Reconsideration. A trial court is not obligated to act on a
motion for reconsideration and loses jurisdiction to do so after the thirty-day
appeal period expires. See Lichtman v. Glazer, 111 1 11 A.3d 1225, 1225, 1229-1230 1229-1 230
(Pa.Cmwlth.2015). Thus, because this Court lacked jurisdiction to rule on Wife's
Motion for Reconsideration, this issue is without merit and should be dismissed.
Issue Five
Wife's fifth issue on appeal is whether this Court erred by declining to rule
on her Motion for Reconsideration by citing a lack of jurisdiction via email only.
As set set forth above, not only did this Court properly determine that it lacked
jurisdiction to rule on Wife's Motion for Reconsideration, even if it had jurisdiction
to rule on it, this Court had no obligation to do so. so. It follows, then, that if if this
Court Court had no obligation to rule on the Motion for Reconsideration, then it also had
no obligation to issue an order of of court regarding the same. same. This Court's email
notifying counsel that itit would would not be ruling on on Wife's Motion for Reconsideration Reconsideration
was was sent sent out out of of common common courtesy courtesy and and did did not constitute error. As such, such, this issue
is is without without merit and and should should be dismissed.. dismissed.
Six Issue Six
Wife's sixth sixth issue issue on on appeal is whether appeal is whether this this Court Court erred by granting
44 To To date, date, this this Court Court has has never never been been served served with with the the Notice Notice of ofAppeal. Appeal.
17 17 Husband's Motion to Perfect Service of Affidavit Under Section 3301(d), 3301 (d), which
enabled him to obtain the Divorce Decree. This issue is the subject of an Order of
Court dated March 16, 16, 2021, which is not currently subject to the pending Notice
of Appeal. To the extent this Court erred by issuing the March 16, 16, 2021 2021 Order of
Court after the Notice of Appeal had been filed, this Court would submit that it had
no knowledge of the Notice of Appeal, as this Court was never served with it, and
that this Court was only made aware of the Notice of Appeal on March 17, 17, 2021,
when it received an electronic notification from the Superior Court of Pennsylvania
regarding the same. In any event, because this issue is outside the scope of this
Appeal, it should be dismissed.
CONCLUSION
For the reasons set forth above, because Wife did not properly preserve her
issues for appeal and/or her issues are without merit, Wife's Appeal should be
dismissed and this Court's February 12, 12, 2021 2021 Order of Court and the March 31,
2021 2021 Divorce Decree should be affirmed.
BY THE COURT:
HONORABLE JENNIFER SAILER SATLER
18 18