J-S71022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CATHERINE LE SCHACK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK LE SCHACK,
Appellant No. 558 WDA 2015
Appeal from the Order March 24, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 13-006800-009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 22, 2016
Mark Le Schack (“Husband”), pro se,1 appeals from the March 24,
2015 order affirming the Master’s Report and Recommendation and
equitably distributing the marital property of Husband and Appellee
Catherine Le Schack (“Wife”). We affirm.
The trial court summarized the relevant procedural history as follows:
The parties . . . were married on July 22, 1978[,] and separated
on July 2, 2012. On April 12, 2013, Wife filed a Complaint in
Divorce raising claims for divorce and equitable distribution. On
July 18, 2013, Husband filed an Answer to Wife’s Complaint
raising a claim for Alimony Pendente Lite (APL).
On July 9, 2014, Husband presented a Petition for
Bifurcation requesting this Court bifurcate the divorce proceeding
____________________________________________
1
Husband “is a Pennsylvania-licensed attorney who has practiced law for
over twenty (20) years . . . .” Trial Court Opinion, 6/2/15, at 6.
J-S71022-15
and economic claims as Husband wished to marry his girlfriend
who lived in Brazil at the time. Following briefing and a full
evidentiary hearing, this Court denied Husband’s request for
bifurcation on November 25, 2014.
On January 8, 2015, a one-day hearing before Master
Chester Beattie, III, (hereinafter the “Master”) was held to
resolve all pending economic claims, including Wife’s claim for
equitable distribution, counsel fees and expenses, and Husband’s
Petition for Modification of APL. On January 26, 2015, the
Master issued a Report and Recommendation (hereinafter the
“Master's Report”). Neither party filed timely exceptions to
the Master’s report.
On February 19, 2015, having failed to file his exceptions
on time, Husband sought leave of court to file exceptions nunc
pro tunc. This Court denied Husband’s request and further
denied his additional motion which essentially were exceptions to
the Master’s Report.
On March 24, 2015, this Court adopted the Master’s Report
as a Final Order and, on March 26, 2015, a divorce decree was
entered. On April 6, 2015, Husband filed a Notice of Appeal to
said Order.
Trial Court Opinion, 6/2/15, at 2–3 (emphasis in original).2
Husband raises the following issues on appeal:
I. IS THE APPELLANT ENTITLED TO A MARITAL DIVISION OF
TRUST ASSETS AND INCOME OR RECEIVE MONETARY
COMPENSATION WHEN APPELLANT OFFERED CREDIBLE
EVIDENCE THAT HE WAS THE INTENDED BENEFICIARY
AND TOTALLY DEPENDENT ON THE SUPPORT FROM THE
TRUST INCOME AND ASSETS?
II. IS THE APPELLANT ENTITLED TO ALIMONY PENDENTE LITE
ON APPEAL AND IS APPELLANT ENTITLED TO
MODIFICATION INCREASE RETROACTIVELY?
____________________________________________
2
Both Husband and the trial court complied with Pa.R.A.P. 1925.
-2-
J-S71022-15
III. DOES THE SUPERIOR COURT HAVE JURISDICTION IN THIS
CASE AS A RESULT OF THE COURT DENYING THE RIGHT
TO FILE EXCEPTIONS.
IV. WAS THE APPELLEE ENTITLED TO SANCTIONS AGAINST
APPELLANT?
Husband’s Brief at 3 (verbatim).
A trial court has broad discretion when fashioning an award of
equitable distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa.
Super. 2007). Our standard of review is whether the trial court abused its
discretion. Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) (citation
omitted). “An abuse of discretion is not found lightly, but only upon a
showing of clear and convincing evidence.” Yuhas v. Yuhas, 79 A.3d 700,
704 (Pa. Super. 2013) (en banc).
Initially, we must determine whether Husband has preserved the
issues he now advances on appeal; thus, we first address Husband’s issue
III. The time limits to be followed when filing exceptions to a master’s
report are set forth in Pa.R.C.P. 1920.55-2, which provides, in pertinent
part, as follows:
Rule 1920.55-2. Master’s Report. Notice. Exceptions. Final
Decree
* * *
(b) Within twenty days of the date of receipt or the date of
mailing of the master’s report and recommendation, whichever
occurs first, any party may file exceptions to the report or any
part thereof, to rulings on objections to evidence, to statements
or findings of fact, to conclusions of law, or to any other matters
occurring during the hearing. Each exception shall set forth a
-3-
J-S71022-15
separate objection precisely and without discussion. Matters
not covered by exceptions are deemed waived unless,
prior to entry of the final decree, leave is granted to file
exceptions raising those matters.
Pa.R.C.P. 1920.55-2(b) (emphasis added).
The record reveals that the Master’s Report and Recommendation was
filed and mailed to the parties on January 26, 2015. Docket entries 52 and
53. Thus, any exceptions to the Master’s Report had to have been filed by
February 17, 2015.3
The record further reveals that Husband filed exceptions to the
Master’s Report on February 18, 2015. Docket Entry 57. On February 20,
2015, Husband filed a Motion for Delayed Filing of Exceptions4 asserting that
he attempted to file exceptions electronically on February 13, 2015. He
attached an email sent February 13, 2015, at 5:57 p.m. from the Allegheny
County webmaster acknowledging receipt of the exceptions and listing their
status as “pending,” with the following proviso: “Be advised this case is not
officially filed until it is approved by Allegheny County Civil/Family Division.
If approved, you will be notified via an electronic receipt and the official date
____________________________________________
3
Because the twentieth day fell on Sunday, February 15, 2015, and
Monday, February 16, 2015, was President’s Day, a national holiday, the
exceptions were due by February 17, 2015. See 1 Pa.C.S. 1908 (stating
that when the last day of any period referred to in any statute falls on
Saturday or Sunday or on any legal Commonwealth of Pennsylvania or
United States holiday, such day “shall be omitted from the computation.”).
4
The trial court has termed this filing as leave to file exceptions nunc pro
tunc.
-4-
J-S71022-15
and time of filing will be the date and time listed above.” Motion for Delayed
Filing of Exceptions, 2/20/15, attachment. Also attached is an email sent
February 17, 2015, at 10:25 a.m. from the webmaster which states: “Please
be advised that the following cases have NOT been accepted as a filing by
the Allegheny County Civil/Family Division because: Exceptions cannot be
electronically filed. They must be filed in the office. You must resubmit the
notice of intention.” Id. The trial court denied Husband’s Motion for
Delayed Filing of Exceptions on February 19, 2015.
Pennsylvania Rules of Civil Procedure 239 through 239.9 establish the
framework by which individual courts of common pleas of this
Commonwealth may promulgate local rules of civil procedure. Specifically,
Pa.R.C.P. 239.9 provides as follows:
Rule 239.9. Electronic Filing. Local Rule 205.4
(a) If a court permits or requires the electronic filing of legal
papers with the prothonotary, the court must promulgate a local
rule designated Local Rule 205.4 which sets forth in detail the
practice and procedure to file a legal paper electronically and
includes the matters set forth in this rule.
In compliance with Pa.R.C.P. 239.9, Allegheny County promulgated Local
Rule 205.4, which designates, inter alia, the legal papers that can and
cannot be filed electronically for matters within the Family Division.
Allegheny County Local Rule 205.4(a)(1)(C). In addition, the local rule
provides:
-5-
J-S71022-15
(f)(1) When a legal paper has been successfully transmitted
electronically, the DCR’s[5] electronic filing website shall generate
a printable acknowledgement page and shall transmit to the filer
an initial e-mail confirming the electronic receipt of the legal
paper and the date and time thereof. Subsequently, after the
DCR has processed the electronic filing, the DCR shall transmit,
to the filer, an e-mail stating the date and time of acceptance of
the filing or stating that the filing has not been accepted and the
reasons for non-acceptance. A legal paper will not be considered
filed if the DCR responds to the filing by notifying the filer that
the filer has not (i) maintained with the DCR sufficient funds to
pay the fees and costs of the filing or (ii) authorized payment by
credit or debit card of such fees and costs.
Allegheny County Local Rule 205.4(f)(1).
In refusing to permit Husband’s nunc pro tunc filing of exceptions, the
trial court stated as follows:
The standard of review in the denial of a request to file pleadings
nunc pro tunc has been stated as follows:
... the standard of review applicable to the denial of
an appeal nunc pro tunc is “whether the trial court
abused its discretion.” An abuse of discretion is not
merely an error of judgment but is found where the
law is “overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill will as shown by the
evidence or the record.”
In re M.S.K., 936 A.2d 103, 104 (Pa. Super. 2007) (citing
Freeman v. Bonner, 761 A.2d 1193, 1194-95 (Pa. Super.
2000)).
Husband is a Pennsylvania-licensed attorney who has
practiced law for over twenty (20) years, and should be fully
aware of the importance of filing deadlines. Husband alleges
____________________________________________
5
DCR is defined as “the Allegheny County Department of Court Records
Civil/Family Division.” Allegheny County Local Rule 205.4(a)(1).
-6-
J-S71022-15
that he was unfamiliar with the local rules of Allegheny County.
However, Husband admits that he was aware that Allegheny
County had local rules in place but despite this he neglected to
keep himself abreast of these rules. He now asks this [c]ourt to
excuse his ignorance. This [c]ourt is not so inclined.
When a party chooses to represent h(im)self, as here
. . . he cannot impose on the necessarily impartial
court or master the responsibility to act as the
party’s counsel and direct h(im) repeatedly how to
proceed or to proceed for h(im). When a party
decides to act on h(is) own behalf . . . he assumes
the risk of h(is) own lack of professional, legal
training. . . . “Where a party’s action disrupts the fair
and orderly process of the divorce action, the court
acts appropriately in imposing even severe sanctions
if necessary to take control of the situation.” “Abuse
of the court system, whether by seasoned attorneys
or by pro se parties, cannot be tolerated.”
Savage v. Savage, 736 A.2d 633, 647-48 (Pa. Super. 1999)
(Internal citations omitted). Moreover, Husband was advised by
the Department of Court Records, within the 20 day time period,
that exceptions are not permitted to be electronically filed.
Husband thereafter waited two (2) days past the filing deadline,
before filing exceptions in person. Accordingly, this Court found
that Husband failed to make a good faith effort to timely file his
exceptions.
Trial Court Opinion, 6/2/15, at 6–7.
Here, Husband was not permitted to file exceptions electronically.
While he proceeded pro se, Husband is a seasoned attorney who has
practiced law for twenty years. The failure to file timely exceptions to a
master’s report waives claims of error raised on appeal. Pa.R.C.P. 1920.55-
2(b); Metzgar v. Metzgar, 534 A.2d 1057, 1058 (Pa. Super. 1987);
Sipowicz v. Sipowicz, 517 A.2d 960, 963 (Pa. Super. 1986). Moreover,
despite Husband’s erroneous interpretation of the local rule or failure to
-7-
J-S71022-15
consult the local rule regarding electronic filing of exceptions, Husband
specifically was notified the morning of February 17, 2015, the day the
appeal period expired, that electronic filing was not permitted. Thus,
Husband still had the option to file the exceptions in a timely fashion but
chose not to do so. It is this failure that compelled the trial court to deny
Husband’s nunc pro tunc filing. We do not find that such a conclusion is an
abuse of discretion by the trial court. The findings of the trial court are
entitled to great deference by this Court, as it had the opportunity to
observe the parties and assess their credibility. Palladino v. Palladino,
713 A.2d 676, 678 (Pa. Super. 1998). Thus, we agree with the trial court
that Husband’s issues on appeal are waived.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2016
____________________________________________
6
If we addressed the issues on the merits, we would affirm on the basis of
the trial court opinion filed June 2, 2015, and the Master’s Report and
Recommendation filed January 26, 2015.
-8-
J-S71022-15
-9-