J-S11018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE A. ALFORD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NEIL J. HAMBURG : No. 2826 EDA 2018
Appeal from the Decree Entered August 20, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 16-06997
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MARCH 21, 2019
Michelle A. Alford (Wife) appeals from the decree in divorce
incorporating the master’s report and recommendation as to equitable
distribution of the parties’ marital estate. We affirm.
Wife and Neil J. Hamburg (Husband) appeared before an equitable
distribution master, who after conducting a hearing, issued a report and
recommendation as to equitable distribution on March 5, 2018. Wife filed
timely exceptions and the trial court scheduled the matter for a one-day
hearing. In the interim, the trial court ordered the parties to file briefs,
received a motion in limine from Husband regarding expert testimony and
sanctions, conducted an in-chambers conference, heard oral argument on the
record, and ordered additional “letter briefs.” On August 9, 2018, the trial
court dismissed Wife’s exceptions on the basis that Wife failed to comply with
Pennsylvania Rule of Civil Procedure 1920.33 (concerning joinder of related
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claims, equitable distribution and enforcement) and adopted the master’s
report and recommendation as a final order of equitable distribution. Wife
filed a motion for reconsideration which was denied by operation of law. A
final decree in divorce was entered on August 20, 2018. Wife filed this timely
appeal.
On appeal, Wife challenges the trial court’s dismissal of her exceptions
to the master’s report, and specifically assails the trial court’s decisions
relating to Rule 1920.33 of the Pennsylvania Rules of Civil Procedure. Wife
states her issues as follows:
1. Whether the [t]rial [c]ourt committed an error of law
and an abuse of discretion in limiting [Wife]’s testimony and
precluding [Wife]’s expert witness from testifying pursuant
to Rule 1920.33 where Appellee also failed to file his Pre-
Trial Statement pursuant to Rule 1920.33.
2. Whether the [t]rial [c]ourt committed an error of law
and abuse of discretion by raising, sua sponte, the issue of
Rule 1920.33 where neither [Wife] nor [Husband] had
brought the same before the [c]ourt.
3. Whether the [t]rial [c]ourt committed an error of law
and abuse of discretion by requiring the parties to file
written briefs before the [c]ourt but failing to inform the
parties that the [c]ourt additionally required Pre-Trial
Statements pursuant to Rule 1920.33.
4. Whether the [t]rial [c]ourt committed an error of law
and abuse of discretion by imposing strict adherence to Rule
1920.33 where the Scheduling Order did not allow for
compliance.
5. Whether the [t]rial [c]ourt committed an error of law
and abuse of discretion by granting [Husband]’s Exceptions
to the May 19, 2017 Discovery Order?
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6. Whether the [t]rial [c]ourt committed an error of law
and abuse of discretion by granting Husband’s Oral Motion
in Limine and dismissing [Wife]’s Exceptions?
7. Whether the [t]rial [c]ourt committed an error of law
and abuse of discretion by construing the Rules in a manner
that penalized [Wife] for a non-prejudicial error?
8. Whether the [t]rial [c]ourt committed an error of law
and abuse of discretion by failing to acknowledge and accept
[Wife]’s Asset and Liability Worksheet attached to her
written brief while acknowledging that [Husband] had
referenced and attached as an Exhibit to his brief the
Master’s Recommendation and Report in lieu of an
inventory?
Wife’s Brief at 8-10.
At the outset, we observe that Wife did not raise all eight issues in her
Pennsylvania Rule of Appellate Procedure 1925(b) statement. See Statement
of Matters Complained of on Appeal, 9/5/18. Rather, Wife raised only the first
six issues, almost verbatim, that she presents on appeal. See id.
It is well-settled that “[i]ssues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are waived.”
Pa.R.A.P. 1925(b)(4)(vii). This Court recently summarized the prevailing law:
Pa.R.A.P. 1925(b) provides that a judge entering an order giving
rise to a notice of appeal “may enter an order directing the
appellant to file of record in the trial court and serve on the judge
a concise statement of the errors complained of on appeal
(‘Statement’).” Rule 1925 also states that “[i]ssues not included
in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii). In Commonwealth v. Lord, [] 719 A.2d 306
([Pa.] 1998), our Supreme Court held that “from this date
forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
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Rule 1925. Any issues not raised in a 1925(b) statement will be
deemed waived.” Lord, 719 A.2d at 309; see also
Commonwealth v. Castillo, [] 888 A.2d 775, 780 ([Pa.] 2005)
(stating any issues not raised in a Rule 1925(b) statement are
deemed waived). This Court has held that “[o]ur Supreme Court
intended the holding in Lord to operate as a bright-line rule, such
that ‘failure to comply with the minimal requirements of Pa.R.A.P.
1925(b) will result in automatic waiver of the issues raised.’”
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224 (Pa. Super. 2014) (en banc) (emphasis in
original) (quoting Commonwealth v. Schofield, [] 888 A.2d
771, 774 ([Pa.] 2005).
“[I]n determining whether an appellant has waived issues on
appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial
court’s order that triggers an appellant’s obligation ... therefore,
we look first to the language of that order.” In re Estate of
Boyle, 77 A.3d 674, 676 (Pa. Super. 2013).
U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua,
193 A.3d 994, 996–97 (Pa. Super. 2018).
Wife’s seventh and eighth issues are waived. Although the trial court in
this case did not enter an order requesting a Rule 1925(b) statement, Wife
filed her Rule 1925(b) statement contemporaneously with her notice of
appeal. Consequently, the trial court did not have the opportunity or the need
to file such an order. Were we to conclude that Wife did not waive her seventh
and eight issues, it would allow her, and others who contemporaneously file
their Rule 1925(b) statements with the notice of appeal, to circumvent the
issue preservation requirements of Rule 1925(b). We have stated:
It is of no moment that appellant was not ordered to file a 1925(b)
statement. Appellant filed his statement contemporaneously with
his notice of appeal. Accordingly, there was no need for the trial
court to order him to file a 1925(b) statement. If we were to find
that because he was not ordered to file a 1925(b) statement, he
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has not waived the issues he neglected to raise in it, we would, in
effect, be allowing appellant to circumvent the requirements of
the Rule.
Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005).
Furthermore, even if Wife did not waive her seventh and eighth issues, we
would conclude that they are subsumed by Wife’s six preserved issues, which
are likewise meritless.
Wife’s remaining six issues relate to the trial court’s dismissal of her
exceptions to the master’s report and recommendation as to the equitable
distribution of marital property. We recognize:
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing the
propriety of an order effectuating the equitable distribution of
marital property is whether the trial court abused its discretion by
a misapplication of the law or failure to follow proper legal
procedure. We do not lightly find an abuse of discretion, which
requires a showing of clear and convincing evidence. This Court
will not find an “abuse of discretion” unless the law has been
overridden or misapplied or the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence in the certified record.
In determining the propriety of an equitable distribution award,
courts must consider the distribution scheme as a whole. We
measure the circumstances of the case against the objective of
effectuating economic justice between the parties and achieving a
just determination of their property rights.
Moreover, it is within the province of the trial court to weigh
the evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence. We are also aware that a master’s report and
recommendation, although only advisory, is to be given the fullest
consideration, particularly on the question of credibility of
witnesses, because the master has the opportunity to observe and
assess the behavior and demeanor of the parties.
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Morgante v. Morgante, 119 A.3d 382, 386-87 (Pa. Super. 2015) (citations
omitted).
With respect to Wife’s specific challenges to the trial court’s
determinations as to Pennsylvania Rule of Civil Procedure 1920.33, there is
little authoritative case law. However, we have explained:
. . . Pa.R.C.P. 1920.33, Joinder of Related Claims. Distribution
of Property. Enforcement (b)(1) requires each party to file and
serve on the appropriate party a pre-trial statement regarding
assets of the marriage and pertinent information thereto (within
60 days of the master or court hearing), failing to do so (d)(1)
except for good cause shown, shall bar a party from introducing
any evidence in support or in opposition to claims for the matters
not covered.
Anderson v. Anderson, 822 A.2d 824, 828 (Pa. Super. 2003). “It is clear
that the rule implicates a filing and inventory of all marital property by both
parties[.]” Id. at 829 (italics in original).
Additionally, we emphasize that “our Supreme Court has recognized that
the Rules of Civil Procedure are essential to the orderly administration and
efficient functioning of the courts.” Bouchon v. Citizen Care, Inc., 176 A.3d
244, 258 (Pa. Super. 2017) (quoting Womer v. Hilliker, 908 A.2d 269, 276
(Pa. 2006)). “[W]e expect that litigants will adhere to procedural rules as
written, and take a dim view of litigants who flout them.” Id. (quotations and
citation omitted).
Instantly, and upon careful review, it is apparent that the trial court
neither erred nor abused its discretion. Moreover, in addressing each of Wife’s
six issues, the trial court has thoroughly and properly explained why the issues
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lack merit. Accordingly, upon review of the parties’ briefs and the certified
record, and mindful of prevailing legal authority, we conclude that the
Honorable Patricia E. Coonahan, sitting as the trial court, has authored a
detailed and well-reasoned opinion, dated November 30, 2018, which we
adopt as our own in disposing of this appeal.1
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/19
____________________________________________
1 The parties shall attach a copy of the November 30, 2018 trial court opinion
in the event of further proceedings in this matter.
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2016-06997-0109 Opinion,
Circulated 03/01/2019 Page
10:31 AM 1
IN THE COURT OF COMMON PLEAS OF M()NTGOMERY COUNTY;
PENNSYLVANIA
CIVIL ACTION-LAW
MICHELLE A�. ALFORD SUPERIOR COURT
DOCKET N0.28.26 EDA 2018
v •. LOWER COURT
DOCKET NO. 20·16-06997
Nl:IL J. HAMBURG
OPINION
COONAHAN, .J. Noveml>er .,1,,
'2�
., 2018.
.I.FACTUAL, AND PROCEDURAL HISTORY:
On February 21, 201.8, Plaintiff/Appellcn1t/Wife ("Wife") and
Defendai'1t/Appellee/Husband ("Husband") appeared for an Equitable Distribution
Hearing before Master Gordon Mair. On March 5,. 2018, Master Mair entered his
Report and. Recommendation Upon Equitable. D.istribution, Ali mo nv, C.ounsel Fees
and Costs. On March 19, 2018, Wife filed timely Exceptions to the Master�s Report
and Re.commendation. On April 18, 20181, the court issued an order directing that
the matter be listed for a one (L) day Protracted Hearing. On May 16, 20182, the
court issued ah order scheduling the matter for a one (1) day Protra.cted Hearing to
be held onJuly 12, 201.8. at 9:00 a.m.
On June S, 201$3; the court, a.f:ter failing to receive any filings from the
parties regardih.g the content of the de novo Equitable Distribution Exceptions to be
heard on.July .12, 2018, Issued .an order directing counsel for the parties tosubmlt
1
2
3
Do�keted on April 19, zois.
Oocketed
.
on M�y 17, 201.
.
8.
· Docketed on June 6, 2!)18.
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2016·06997-0109 t:VJ.'2018.9;30 AM # 12085384
Rcp�2;)535513 Fee:$0.00 Opinion ·
Main(Puti!io)
·Mon1CdPt0i1:tonoi�iy
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20.16-06997-0109 Opinion . .Pc:1g·e: 2
hearinq briefs to the court at leastten {lO) days prior to the. scheduled hearing on
July 12, 2018.
Off June 29; 20.18, counsel for Vi/i.fe., Dlana C. scbtrnmel, Esquire,.·filed
Plaintiff':"s Brief In Support of. Exceptions and Trtal De Novo Regarding Equitable
Distributl'on. On lune 29! 2() lEt,. Counsel for H usband, Sa ul t.evtt, Esq uire, sub rnltted
a Brief irr Equitable Dlstrlbution.
On Juiy ii, 201.8, counsel {of- Husband filed a Motion in Umine to tlmttthe
Testlmonv ofPlalntlff Michelle .A. Alford and Preclude Expert Testlrnony and for·
Sanctions. Counsel for Husband's Motid_r:1 in Limlne requested that the court issue
an. order precluding Wife a.nq her expert witness from testifying at the July 12., 2018
hearing due to elleqed false statement .of facts. in Wife's pleadings .ano the fact that
Wife had not 'provided. Husband wlth. an. expert· report for the expert she planned to
have testify atthe Ju!y 12, 2018 hearlnq. Ata conference in chambers and during.
an oral arqument on the record, the court, suesponte, raised the questlon of
cornpltance with Pa.R.C.P. 1920.33. Upon the court raising the issue of cornpllance
With Pa'.R.C.P. 19·20.3.3·,.cot.1nser-fo.r Husband made an oral matron to dismlss Wife's.
Equitable· DJstrH;,utfon Exc;eptions due to her failure to· comply with Pa.R.C.P.
1920.33.
Fo.llowin·g an oral arqumenton July l2, ·2018� the court Issued an order·
taking the matter under advisement and directlnq counsel fat the .partles to submit
letter briefs. to the court w.i.t�!ri seven (.7) days. from the date of that order. The
order further allowed for counsel for Husband to respond to counsel for Wife's letter
brief wlthtn three (3) days of its filing. Counsel for Wife ano counsel for' Husbartd
filed their respective· letterbrtefson July· 19, zois.
2
On August 7, 20184,. the court entered an order gn;thting Husband's Motion. in
Limine to limit the testimony of Wife and prohibit Wife's· expert Witness from
testifying altoqether. The court further stated that pursuant.to Pa,JtC.P;_ 1920.33
and Pci.R.C.P .. 4019fc) (3), Plaintlff's March is, 20i8 Exceptions· to
Recornmen·dation o.f Equitable-Distribution Master Report of Mar¢!} 5; .2n1a were
dlsrntssed. The court concluded by stating that The Master iii Equitable
Dtstrtbutton's Report of March 5, 2018 is the finaJ order in equitable distribution in
this matter and was to be. foll.owed by· the parties.
On August 14, ZOl8,. counsel for Vvife filed a Motion for Reconsideration of
the court's order or August. 7, 201S.. The court did rn)tadcfress thts Motion for
Reconsideration wit,'li_n thirty (3.0) days, therefore, the Motion for Reccnslderatlon
was denied by operation of law pursuant to Pa.R.C.P. 15)..30.2.
On August 17, 20i85_: the court ISSLj.ed. c1 fi.nal Decre·e.. in Divorce.
incorporating· the "terms, conditions and provistons ofthe Master in Equitable
otstrtbutlon's Report ofMarch 5( 2018."
On .September 5, 2Cl18, counselfor Wife· flled a Notice of Appeal of the
Auf!ust 7,. 2018 non-final order reg·1:1·rdJng_ Husband's Motion In Liinlne and the
court's August l7, 2018 Divorce Decree. On September 5, 2018,. counsel for Wife
filed a. Statement of Matter's··complained of on Appealpursuant to Pa, R.A.P.
1925.(b) stating as follows:
r. The Court commttted an errorefIawand an abuse of dlscretlon in.
limiting Appellant's te!»timoriy and precluding Appellant's expert
witness from testifying pursuanrto Rule j.920.�3 Wt.Jere Appellee
.also failed to file hls Pre�Trial Sta�ement pursuant to Role
1920.33.
4
Docketed on August,9, 20l8.
s Do.cket�d on August 20; 2018.
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2016:-06997 �0109 Opinion, Paqe 4
a ..Under Rule 1920.33 both parties are required to file an inventory and a
pretrial statement, See Pa.R.C.P. 1920 .. 33. In the seminal case of
.Anderso.n v. Anderson, 2003 Pa. Super, 152, 822 A. 2d 824 (Pa. Super.
2003), the Superior Court held that where both parties falled to include
certain property in their pretrial statements one party could not inure the
benefit of the other party's failure to comply when the beneflttinq party
also had "unclean. hands;''-Anderson v. Anderson, 2003 Pa. Super. 152,
822 A. 2d 8.24 (Pa. Super. 2003) (emphasis added),
b. Becaµse neither party filed a Pre-Trial Statement Rule 1920.33 "must;' be
construed. "to mean that ... failure of both parties to disclose can only be
attributed to the lack of knowledge or unawareness of the true nature of
the property, which is sufficient basis for finding goo.d causeshown," See,
Welsh v. Welsh, 2013 Pa. super. Unpub. LEXIS 2598 (citing Anderson v.
Anderson, 2003 Pa. suoer, 15.2, szz A.2d 824 (Pa. Super. 2003)
(emphasis added).
c. More.over, Anderson and its' progeny stand for the clear proposition that
Appellee should not benefit without penalty where he also failed to comply
with Rule 1920.33. slnce neither party complied with Rule 1920.33 It was
error for the Trial Court to effectively punish Appellant to Appellee's
benefit by precluding her testimony and the testimony of her witness
resulting in a dismissal of Appellant's Exceptions and, ultimately, the
entry of the Decree iii Dlvorce.
d. Appellee's failure to complv with the provisions of'Rule 1920.33 operate
to "nulllf[yJ the effect" so as to preclude the Trial Court from sanctioning
Appell:ant.for her noncompliance. Anderson v. Anderson, 2003 Pa. Super.
152, 822 .A. 2d 824 (Pa. Super. 2003). To hold otherwise is. to punish
Appellant to the benefit of Appeuee who effectively escapes being held
accountable. for his failure to comply with the Rule.
2. The court committed an .error of .law and abuse of disc.retion by
raising, sue sponte, the issue of R.ule 1920.33 where neither
Appellant nor Appellee had brc>ught the same before the c�uirt.
a. The Court..committed an abuse of dlscretlon by raising the issue of
Ru le .1920. 3 3 sue · sponte w hen neither Appellee nor Appellant had
raised the same for the Court. AS. a general proposition; trial courts
should not raise Issues sue sponte. See generally, Commonweettb v.
Waters, 481 Pa. 85, 98 (Pa. 1980) (citihg Commonwealth v.. Branham,
467 Pc1. 605, 359 A; 2d 766 .(1976); Butler Area Sch. D, v; Butte» Ed.
Ass'n, 481 Pa. 20, 391 A. 2d 1295 (1978); In re ouncen Trust, 480 Pc1.
608, :391 A. 2d 1051 (1978); Weigand v, WeiganrJ, 461 Pa. 482, 337
A. 2d 256 (1975)). . .
4
201.6-06997-0109 Opinion, Page 5
b. In Appellee's Motion in Limine, Appellee failed to raise either party's
compliance with Rule 1920.33 as an issue before.the Trial Court. To
wit, Appellee had an afftrrnative obligation to raise the issue of
compliance with Rule 1920.33 for the Trial Court in orderferthe Trial
Court to take action. But Appellee did not raise the issue, because
presumably, AppeUee had also failed to comply with Rule 1920.33
and/or Appellee reasonably believed that the pre-trial Order entered
on June 5, 2018 governed.
c: Because the Issue was not before the Trial Court it was error
for the
Trial Court to raise itsua sponte particularly where neither party (a)
raised the issue, (b) had complied with the Rule, and ( c) each of the
parties had both properly submitted their written briefs in accordance
with the Pre.:Trial Order from June 5, 2018.
d. M.oreover; Appellee made oral motion moving to haveAppeltant's
Exceptions dlsrnlssedj in his oral motion Appellee cited to Rule
i920.33. only after the Trial Courtraised the. issue sue spente. As such
Appellant was unfalrlv prejudiced by the Trial Court's actions, which
effectively provided a basis for Appelleeto argue to have the matter
dismissed. This operated as just the kind of "gotcha" moment the
Superior court contemplated when finding that one party cannot inure
the benefit of the other partv'sfatlure to comply with R1.Jle 1920. 33
without any sanctions for the benefiting party who also failed to
comply. See generally, Anderson v. Anderson, 2003 PA Super 1.52 (Pa.
Super; 2003-). · · ·
3 .. The Court committed an error of law and abuse o.f discretion by
requiring the. parties to file written briefs before the Court but
failing to inform the parties that the ccurt additionally required
Pre-Trial Statements pursuant to Rule 1920.33.
a. The parties, pursuant to. Montgomery County Local Rule 1920.33f-
Initial Hearing Statement-Pre. trial statement-Sanctions, each ·fifed an
Initial Hearing Statement prior to an equitable distribution hearing
before the Equitable Distribution Master. ·
b. Montgomery County Local Rule l920.33f requires the parties to file a
Pre Tri.al Statement ''[n]o later than 20 days prior to the date of any
subsequent hearing before the .equltable distribution master, each ·
party shall file the pre-trial statement, In the form required t,y
subdivision (b) of this rule .. " Montgomery county Local Rule 1920.33f
does not state that the parties are to file a fl.re-Trial statement prior to
the date of a hearing in front of a judge.
c. The Trial Court; by Order entered.on June 5, 2018,. required the
parties to file briefs ten (10) days In advance of a one (t) day
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201a..:oe997 ·0109 Opinion, Page 6
protracted hearing scheduled for July 12, 201$. Said order provided no
further .dtrective.
d, Both Appellant and Appelleetimely 'filed their Br1.efs on June 29, 2018
rn compliance with the Trial court'sJune S, 2.018 Order!
e. Mqreover, the mformetton provided by the parties in their written
briefs ostensibly mirrors the information required under Rule 1920.33.,
That neither party submitted a Pre-Trial Statement operates as
evidence that the parties reasonably believed that the Order entered
by the Trial Courton Julie 5, 2018 governed. Put another way, both
Appellant and Appel lee reasonably believed that the June �, 2018
Order controlled as evidenced by the fact that they both submitted
robustwritten Briefs pursuant to said Order; ··
4. The Court committed an error of lav., and abuse o.f dlscretton by
imposing strict adherence to Rule 1920.33 where the Scheduling
Order .did not allow tor compliance,
a. The. matter was first scheduled on May 16, 2018 for a protracted hearing
llsted for July 12., 2018. As a matter of practical effect neither party would
effectively comply with the stringent .requirernents of Rule 1920.3.3 even if
they had tried since at that time there were only fifty-six (56) days from
the date of scheduling to the date .of the hearing. This further bolsters
Appellant's reasonable contention that the Pre-Trial Order of June 5, 2018
requiring the parties to file briefs controlled. Moreover, the fact, again,
that Appellee complied with .the June 5, 2018 Order and not Rule 1920 . .33
further .supports Appellant's position.
b, Additionally, the parties both fully complied with the requlrementsof
Montgomery County Local Rule l920,33f. because the parties had
throughout the pendencv of the proceedings complied with the operative
rules, since the Trial Court entered a Pre-Trial Order requiring written
brlefs; and as a. result of the msurttctent advance notice for either party to
complv with the requirements of Rule 1920.33(b), it is error to hold
Appellant to a standard that she could not, through no fault of her own,
meet. Bec.ause the protracted hearing was held less than sixty (60) days
from the 'date that the same was .scheduled Appellant's compliance was
rendered impossible! ·
5. The. Court committed an error of law.and abuse of discretion by·
granting Appellee's Exceptions to the May
. 19, 2017 Discovery.
Order.
a; The Trial Court has also erred by granting Appellee's Exceptions t.o the
May 19, 2017 Discovery order as it overly prejudiced Appellant by
precluding a large and extremely relevant portion of necessary documents
for adrnlsslon, To proceed forward wlth an Equitable Distribution hearing
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io.1e-oe997_0109 Opinion, Page.7
without such pertinent documents not only overly prejudices Appellc:int but
truncates the Trial Court's ability to fully end fairly weight all factors prior
to issuing a ruling.
6� The Court committed an error of law and abuse of discretion by
granting Appellee's Oral Motion in Ltmtne and dismissing
Appellant's Exceptions.
a. As. aforementioned, Appellant was unduly prejudiced by the Trial Court's
action in granting Appellee's Oral Motion in Limine. To wit, the Trial Court
erred in sanctioning Appellant for actlonsthat were· both (a) outside of her
control and (b) held Appellant to an unfair standard that effectively
rewarded Appellee Where both acted In the same manner, pertlcularlv
where, as articul. ated in Anderson, supra, the ruleswere intended to
provide an even playing filed lh the economtc dtssolutlon of the rnarrlaqe.
See generally, Anderson v Anciers.on., 2003 PA Super 152. (Pa. Super.
2003).
b, Appel lee was in. no way prejudiced by Appellant's actions, To wit,
Appellee's expert has been involved in the litigation almost since the
matter's inception. App.ellee had multiple direct tnteractlcns with said
expert and was familiar with the course and scope of his work. Most, if
not all, of the documentation Apellanes [SIC] expert utllized in compiling
his findings and purported testlrnonv was directly available .to .and
provided by Appellee. Appellant's expert was merely synthesizing
Appellee's directly provided fully accessible information. Moreover,
Appellant's expert had been. present to. te.st.ify et.p rlo r proceedl ligs .end a 11
of the information utilized by the expert is, and has. been, abundantly
available to Appellee .
. c. Lastly, the Trial Court erred in granting Appellee's Oral Motion particularly
where the. Trial Court had less restrictive alternatives available to It such
as continuing the matter and allowing both of the. parties adequate time
to comply With Rule 1920.33(b). To dismiss Appellant's Exceptions
effectively foreclosing herfrom putting forth an argument was unduly
harsh and prejudicial under the circumstances, particularly where
Appetlee would not have suffered undue harm in slrnply continuing the
matter so that the parties could both be afforded an opportunity to
comply. · ·
d. As a general prcposltlon courts should not preclude expert testimony in
the absence of prejudice. See generally; Feingold v, Southeastern ·
P�nnsylvimfa Transportation Authority, 512 Pa. 567 (1986). In this
instance Appellee was not prejudiced Where he had effectively had control
of au the informaticm reviewed by Appellant's expert, Appell�nfs expert
had been involved in the matter since near its inception, and Appellant
had been consistently listed as a wltness prior to hearings.
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2016-06997-0109 opinion, Page 8
On October 15, 2018, counsel for Wife filed an Application for Emergency
Re lief with the Superior Court of Pennsylva nla. On October .16, 2018, the Superior
court of Pennsylvania Issued a Per Curietti order denying counsel for Wife's October
15, 20l8 Application for Emergency Relief; stating that Wife did not .successfully
demonstrate satisfaction of the requirements for issuance of a stay as set forth in
Pa. Public Utility Cmm'n v. Process Gas Consumers Group; 467 A. 2d 805 (Pa.
1983),. namely, L likely to prevail ori the merits of an appeal;
. 2. without the
requested relief, will suffer trreparabte injury; 3. the issuance of a stay will not
substantially harm other Interested parties; and 4. the issuance .of a stay will not
adversely affect the public interest.
II. DISCUSSION:
This opinion is filed pursuant to and is in compliance with Pa.R;A.Pi 1925(a).
The court addresses Wife'-s matters complained of on appeal .ad serteum.
Absent abuse of discretion on the part of the trial court in a divorce action,
the Pennsylvania Superi<>r Court will not reverse an award of equitable distributi.on.
Fonzi v. Fonzi, 6.33 A. 2d 634; 6.36 (Pa. super, 1993); Hill v. Hill, 584 A. 2dl040,
1041 (Pa. Super. i991). Moreover, when reviewing the. record regarding equitable
distribution in a dlvorceactlon, the Superior Court shall be guided by the fact that
.trtal courts have broad equitable powers to effectuate justice. Fonzi, supra.
i. The Court committed c;ai'l error of law and an abuse of discretion in
limiting Appella.nt;s testimony and precluding AppeUant's expert
witness from testifying pursuantto Rule 1920.33 vi,here Appellee
also failed to file his Pre-Trial statement pursuant to Rule
1920.33.
a .. Under Rule 1920.33 both parties are required to file an inventory and
a pretrial statement. See Pa�R.C.P. 1920.33. In the sernlnal case of
Anderson v, Anderson, 2003 Pa. Super. 152, 822 Pi. 2d 824 (Pa.
Super. 2003.), the Superior Court held that where both parties failed to
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201'5".06991:.0109 Opinion, Page 9
include certain property in their pretrial statements one party could
not inure the benefit of the other party's failure to cornply when the
benefitting party also had "unclean hands." Anderson v, Anderson,
2.003 Pa. Super. 152, 822 A. 2d 824 (Pa. Super. 2003) (emphasis.
added) •
. b. B�cause neither party filed a Pre-Trial Statement Rule 1920.33 "must"
be construed "to mean that. .. failure of both parties to dlsclose can
.onlv be attributed to the lack of knowledge or unawareness of the true
nature of the property, which is sufficient basis for finding good cause
shown," See Welsh v. W(j/sh; 2013 Pa. Super. unpuo. LEXIS 2598
(citing Anderson v. Anderson, 2003 Pa. Super. 1�2� 822 A.2d 824 (Pa.
Super. 2003) (emphasis added).
c. Moreover, Anderson and its' progeny stand for the clear proposition
that Appellee should not benefit without penalty where he also failed
to comply with Rule 1920.33. Since neither party complied with Rule
1920.33 it was error forthe Trial Court to effectively punish Appellant
to Appellee's benefit by precluding her testimony and the testimony of
her witness resulting in a dismissal of Appe Ila rit's Exceptions and,
ultimately, the entry of the Decree in Divorce.
d. Appellee's failure to comply with the provisions of Rule 1920�33
operate to "nullif[y] the effect" so as to preclude the trial Court from
sanctioning Appellant for her noncompliance. Andersen v. Anderson,
2003 Pa. Super. 152; 822 A. 2d 824 (Pa. Super. 2003). To hold
otherwise is to punish Appellant to the benefit of Appellee who
effectively escapes being held accountable for his failure to corrrplv
with the Rule.
pa.R.C.P. 1920.33(a)-(a)(1) states that if a p.leadin.g or petition raises a claim
for equitable division of marital property under the divorce code, the parties. are to
provide the court and the opposing party with a list of assets and .liabilities of the
parties prior to trial. Furthermore, Pa .. R.C.P. l920.33(b) statesthetwlthln the tlme
requlredby order Of court or written directive of the master or, if none, at least 60
days before the scheduled hearing on the claim for equitable dlvtslon, the parties
are to file and serve. upon the other party, inter alia, a pre-trial statement setting
forth the assetsand liabilities of the parties. Pa.R.C.P. 1920.33(.c) states that ifa
party fails to file .elther an inventory under subsection (a) of this rule or a pre-trial
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2016:.06997':0109 Opinion; page 10
statement under subsection (b) of this rule, the court may make an appropriate
order under Pa.R.C.P. 4Q19(c) governing sanctions. Finally, Pa.R.CP. 1920.33(d)
states that a party who .fails to cornplv with subsection (b) of this rule may be
barred from offering testimony or introducing evidence in support ofor in
opposltton .to claims; for the matters omitted from the pre-trial statement
Here, in Husband'sbrlef filed on June·29, 2018, Husband states under
sectlon IV, Marital Assets and Liabilities, that the "Master's Report and
Recommendation of March s, 2018 has .an accurate description ofthe parties'
marital estate." Husband attached a copy of the Master's Report and
Recommendation to his June 29, 201.8 brlefto indicate to the court that Husband
was adopting the Master's March 5, 1018 llst of assets and liabilities as his own
and, lt.was therefore Husband's opinion that those values should be considered by
the court at the. July 12, 2018 bearing.
conversely; Wife, as the party taking exceptions to the report and
recornrriendatlon of the Equitable Distribution Master, fa lied to attach to her June
29, 2018 brief,.. a copy of the assets. and llabllltles of the parties according to Wife.
Similarly, unlike. Husband, Wife did not include a staternent.ln her June 29, 20.18
b rief adopting the assets and liabilities of the parties as set forth by the Equ ita ble
Distr.ibution Master in his March 5; 2018 recommendation and report. Iii fact, a
review of the docket indicates that at no point in time did Wife make a good faith
effort to provide Husband, counsel for Husband, or the court with Wife's list of
assets. and liabilities of the parties.
As the court pointed out to the parties .dufinq conference. in. chambers and on
the record atthe July 12, 2018 oral argument; items that were previously filed
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2016-06997-0109 Opinion, Page 1.1
before the Master are not relevant ln a de nova hearing and, therefore, it was
incumbent upon Wife to cornplv in good faith with Pa.R.C.P. 1920 .. 33. Forthe court
to ignore Wife's ignorance of .and blatant non .. compliance with the rules. and allow
Wife to proceed with her ..exceptions would have: been unfair and unduly prejudicial
to Husband, especially slnce Husband's June 29l 2018 brief addressed the parties'
assets and liabilities desplte the fact that Husband was the hon-moving party.
Wife's analysis of Anderson v. Anderson, 2003 Pa. Super. 152, 822 A. 2d $24
{Pa. Super .. 2003.) and Welsh.v .. Welsh, 2013. P�:1. Super'. unpub, LEXIS 2598 are
incorrect as both cases are clearly distinguishable from the facts in the instant case.
Specifically, Anderson deals With one asset being left off both parties' inventories
and Welsh deals with only part of an asset being left off the parties' inventories. ln
the present matter, only Husband provided the court and the opposing party a list
of assets and liabilities from the marital estate. Wife made no good faith effort to
provide such a Ilstto the court and to opposing counsel. The cases Wife.cites do not
involve the wholesale disregard of Pa.R.C. P. 1920.33 and are not applicable to the
facts of the instant case.
Therefore, Wife.'s claim(s) as raised In paragraph (1} of her 1925(b) Concise
statement are without merit, are not supported by the facts in this matter, and
should, therefore, be dismissed.
2. Th.e Court committed an error of law and abuse of discretion by
raising, slia sponte, the issue of Rule 19.20�3-3 where neither Appellant nor
AppeU�e had brc:>ught the same before the Court.
a.The Court corrrmittedan abuse of discretion by raising the lssue.of Rufe.
1920:33 sue sponte when neither Appellee nor Appellant had raised the serne
for the Court; As a general proposition, trial courts should not raiseissues
su« spotite. See generally, Commonwealth v, Waters; 481 Pa .. 85, 98 (Pa.
1980) (citing Commonwealth v. Branham, 467 Pa. 605,. 3.59 A. 2d 766
(1976).; Butler Ar�a Sch. .D. v. eutlet Ed. Ass'n, 48.t.Pa. 20, 391 A; zc 12.95
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2016-06997-0109 Opinion, Page 1.2
(1978); In re Duncan Trust, 480 Pa. 608� 391 A. 2d 1051 (1978); We.lgand
v. Weigand, 461 Pa. 482, 337 A. 2d 256 (1975)).
b.In Appellee's Motion in timine, Appellee failed to raise either party's
compliance with Rule 1920.33 as an issue before the Trial Court. To wit;
Appel lee had an affirmative .obligation to raise the issue of compliance With
Rule 1.920 .. 33 for the Tri.al Court in order for the Trial Court to take action,
Bt.it. Appellee did not raise the issue, because' presumably, Appellee had also
failed. to comply with Rule 1.920.33 and/or Appellee reasonably believed that
the pre-trial Order enteredon June s, 2018 governed.
c: Because the issue was not before. the Trial Court it.was error forthe Trial
Court to raise it suasponte·particula·rty where neither party (ajratsed the
issue, (b) had complied with the Rule, and (c) each of the parties had both
properly submitted their Written briefs ln accordance With the Pre-Trial Order
from June 5, 2018.
d. Moreover, Appellee made oral rnotton moving to have Appellant's
Exceptions dismissed; in his oral motion Appel lee cited to Rule 1920.33. only
after the Trial Court ralsed the issue sue sponte. As such Appellant was
unfairly prejudiced by the Trial Court's actions, which effectively provided a.
basis for Appellee to argue to have. the matter dismissed. This operated as
Just the kind of )'gotcha" momentthe Superior Court contemplated when
find.ing that one party cannot inure the benefit of the other party's fallureto
comply with Rule 1920.33 Without any sanctions for the benefiting party who
also failed to comply. see generally; Anderson v. Anderson, 2003 PA Super
152 (Pa. Super: 2003). · · ·
The trial court is the best exponent. of its own court rules. Blessing v.
Philadelphia Rapid TrarisitCo., 188 A. 573,. 574 (1936); Saturen v. Gibraltar Mut.
Ins; Co., 1.59 A. 2d 577 (1960).
Here, Wife argues that the trial court was not permitted to sue soonte raise
the issue of compliance with Pa...R.C..P. 19Z:0.33. Wife is mistaken; As an officer of
the court, attorneys are requlredto be aware of and follow the rules of court,
specifically, local and state rules of civil procedure .. It is the duty of the trial court to
bring any non-compliance by pro se parties or their counsel to the attention of the
parties.
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2016-,06997-0.109 Opiriion, Page 13
ln the instant case, on June. 5, 2018, the court, after failing torecelve filings
from the parties regarding the content of the Equitable Distribution Exceptions to be
heard on July 12, 2018, issued an order directing counsel for the parties to submit
hearing briefs to the court at least ten ( 10) days prior to the previously scheduled
July 12� 2018 hec1ring. Wife, who filed the exceptions, was; therefore, charged
with cidhering to the .Pennsvlvanle R1..Jles of Civil Procedure, namely Pa;R.C;P.
1920.33, requiring the parties to file an inventory of the parties' assets and
nabruttes prior to the Equitable Distribution Exceptions de novo hearlnn. Plain and
simple, counsel for Wi.fe did not comply with this rule.
Therefore, Wi.fe;s clalmts) .as raised in paragraph (2) of her 1925(b;) Concise
Statement are without merit, are not supported by the facts in this matter, and
should, therefore, .be dismissed .
.3.The CQurt comrmtted an error .of law and. abuse of discretion by.
requiring the parttes.to file written briefs.before the Court but failing
to info.rm the parties that t'1e Court additionally required Pre-Trial
Statements. pursuant to Rule. 1920.33�
a.The parties, pursuant to Montgomery County Local Rule 1920.33f-[rjitial
Hearing Statement-Pre trial statetnent-sencttons, each filed an Initial
.Hearing Statement prior to an equitable dlstribution hearing before the
�quitable Distribution .Master.
b.r-tontqornerv County Local Rule l920.33f requires the parties to file a Pre
Trial .statement "Inlc later than 20 days prior to the date of any subsequent
hearing before.the equitable dlstrlbutlon master, each party shall file the pre-
trial statement, in the form required by subdlvtslon (b) oft.hi!:i rule:" ·
Montgomery County Local Rule 1920.33f does not state that the parties are
to flle.a Pre-Trial Statement prior to the date of a hearing in front .of a judge..
c.The Trial Court, by Order entered on June 5, 2018, required the parties to
file briefs tentro) days in advance of a one (1) day protracted hearing
scheduled for July 12, 2018. Said order provided no further directive ..
d.Both Appellant and Appellee timely filed their Briefs on June 29, 2018 in
compliance With the Trial Court's June 5'., 2018 Order.
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·2016.:..<:)6997-0109 Opinion, Pc!!ge 14
e. Moreover, the inforrrration provided ·by the parties in their written brfefs
ostensibly mirrors the information required under Rute . 1_920.33'.. That rrelther
party submitted a Pre-Trial ,Statement operates .as .evldence that the parties
reesonablv'bellevec 'that :the Order entered by. the Trial Court on June· 5,
2018. goVer'ned. Put another way, both Appellant and Appellee reasonably .
bettevedthat the June 5, 20:1,8 Order controlled as evidenced by the fact that
they both submitted robust written. Briefs pursuant.to '$.�id Order.
Here, while Montgomery County Local Rule of Civil Proce·dure.19.20.33(1)
pertalns to hearings before the Master in. Egurtable Distrtbutlon, the existerrce of
'this local rule does not neqate the exlstenceof Pa.R.C.P, 1920· .. $3 which statesthat
at least sl?.r compliance. ·
a.The matter was first scheduled on May 16, 2018 fo.r a· protracted hearing
llsted forJuly 12, 2018. As a· matter ,of practical effectrrelther party wouJd
effectively comply with _th.� stringent requirements of Rule 1920.3.3 even If
they hadtrtec since atthatttme there were ontv fitt"y--esix (56) davsfrom the
date of scheduling to the date. ofthe hearing; This further bolsters Appellant's
reasonable cententlon that the. Pre-Trlal Order ofJune 5, 2018. requiring the
parties tofile briefs -controlted, Moreover, the tact, aqaln, that Appellee
complied with the June 5, :20.1s· Order and not Rule l920 .. 33·further supports
Appellant's posltlon, . .
1.4.
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2016-06997-0109 Opinion, Page 15
b .Add ltiona fly, the parties both fu Jly comp I ied with the require men ts of
MontgQmery County Local Rule 1920.33f. because the parties had throughout
the pendencv ofthe proceedings complied with the operative rules; smce the
Trial Court entered .a Pre.,. Trial Order requiring written briefs, and as a result
of the insufficient advance notice for either party to comply with the
requirements o.f Rule l920.33(b); it is. error to hold Appellantto a standard
that she could. not, through no fault of her own, meet. Because the
protracted heating was held less than sixty (60) days from the date that the
same was scheduled Appellant's. compliance was rendered impossible.
Here, at.a minimum, Wife was to make a good·faith effort to comply with
Pa.R..C.P. 1920.3l, At the tlrne the court issued the June S, 2018 order directing
the parties to file pre-trial statements, the court had received no filings from either
partv; including Wife as the moving party, related tothe July 12l 2018 de novo
Equitable Distribution Exceptions Hearing. F.urthermore, Wife is incorrect in stating
that Husband failed to comply with Pa.R.C.P. 1920.33.. As stated above, Husband's
June 29, 2018 Pre-Trial Brief adopted and incorporated the Master in Equitable
Distribution's Maroh 5, 2018 listln'g of the parties' assets and liabilities. Wife's pre-
trial brief contained no such adoption and/or incorporation of the parties' assets and
liabilities. Wife falsely states that throughout the pendencv of the proceedings, -she
complied with the operative rules; However, as. stated above, at no point in time did
Wife make a good faith effort to provide Husband, counsel for Husband, or the
court with a listing of the. items Wife was required to provide pursuant to P,LR;C.P.
1920.33.
As the court pointed out to the parties during conference in chambers and on
the record at.the July 12, 2.018 oral argument, items that were previously filed
before the Equitable Distribution Master are hot relevant in a de novo Equitable
Distribution Hearing, therefore, it was incumbent upon Wife as the moving party to
comply In good faith With Pa.R.C.P... 1920;33. For the court to Ignore Wife's blatant
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2016-06997-0109 Opinion; Page16
non-cornpllance with the rules and allow Wife to proceed with her exceptions would
have been. unfair and unduly prejudicial to Husband, especially since Husband's
June 29, 20.18. brief addressed the parties' assets and liapilities.
Therefore, Wife's claim(s) as raised Jn paragraph (4) of her 1925(b) Concise
Statement are without merit; are not supported by the fads in this matter, and
should, therefore, be dlsrnlssed.
5. The .Court committed an .error of law and abuse of discretion by
granting App·e llee�s Exceptio.n s tothe May 19, 2017 Discov:ery Order,
a.The Trial Court has also erred by gr'tl•h •• , -,.. • • .. , ,---··--············-·