Cerracchio, L. v. Zukowski, D.

J-A10031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LAURA D. CERRACCHIO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID J. ZUKOWSKI :
:
Appellant : No. 1404 MDA 2021

Appeal from the Order Entered September 30, 2021
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2020-696-CP

LAURA D. CERRACCHIO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID J. ZUKOWSKI :
:
Appellant : No. 1405 MDA 2021

Appeal from the Order Entered September 30, 2021
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2020-696-CP

LAURA CERRACCHIO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID J. ZUKOWSKI :
:
Appellant : No. 1406 MDA 2021

Appeal from the Order Entered September 30, 2021
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2020-696-CP

MEMORANDUM PER CURIAM: FILED: JULY 26, 2022
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Appellant, David J. Zukowski, appeals pro se from the orders entered in

the Susquehanna County Court of Common Pleas, which denied his petition to

modify a protection from abuse (“PFA”) order, denied his recusal motion, and

held Appellant in contempt of court. We affirm.

The relevant facts and procedural history of this case are as follows.

Appellant and Appellee Laura Cerracchio were previously married and are

engaged in ongoing custody proceedings. On August 6, 2020, Appellee filed

a PFA petition alleging that on or about August 4, 2020, Appellee’s attorney

told her to lock her doors and be on the lookout because Appellant had

threatened a judge and court administration. Appellee claimed she was

terrified based on Appellant’s past actions and behavior, and feared Appellant

would harm Appellee and their child, C.J.Z. (“Child”). The court entered a

temporary PFA order that day. Appellant was served with the PFA petition,

temporary order, and a notice of hearing scheduled for August 13, 2020, at

his residence in Endicott, New York, which was the address listed on the PFA

petition.1

Appellant failed to appear for the scheduled hearing on August 13, 2020.

Consequently, the court rescheduled the hearing for August 21, 2020. The

order rescheduling the hearing for August 21, 2020 was mailed to Appellant

at the Endicott, New York address, but was ultimately returned to the court

____________________________________________

1 The return of service confirmed Appellant was personally served with the
PFA petition, temporary order, and notice of hearing.

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as undeliverable. On August 21, 2020, Appellant failed to appear for the PFA

hearing. At the conclusion of the hearing,2 the court entered a final PFA order

against Appellant for the protection of Appellee and Child, for three years. The

court’s order further stated: “The [c]ourt being of the understanding that

[Appellant] is aware of the Protection Order and was served with the

Temporary Order and date but has not appeared today, in the event that

[Appellant] seeks to have a hearing in the above-captioned matter, nunc pro

tunc, IT IS ORDERED that he shall petition for the same.” (Order, 8/21/20).

The final PFA order was sent to Appellant at the Endicott, New York address,

but it was also returned to the court as undeliverable.

Over six months later, on March 19, 2021, Appellant filed a petition to

modify the final PFA order. Appellant requested a hearing to address the

“fraudulently obtained” PFA order. The court held a hearing on Appellant’s

petition on June 7, 2021.3 At the hearing, Appellant appeared pro se and

claimed he did not receive notice of the rescheduled PFA hearing or the final

PFA order. Appellant insisted he only became aware of the final PFA order on

March 12, 2021. Appellant further challenged the court’s jurisdiction.4

____________________________________________

2 Judge Russell D. Shurtleff presided over this hearing.

3 Judge Jeffrey A. Smith presided over this hearing.

4In doing so, Appellant claimed that only God has jurisdiction over him, and
Appellant would not recognize the court’s authority over him. (See N.T.
Hearing, 6/7/21, at 13, 18).

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Margaret Krupinski, the Prothonotary of Susquehanna County, testified

at the June 7, 2021 hearing. Ms. Krupinski testified that she has previously

sent court documents for all cases involving Appellant to his Endicott, New

York address, as well as at a P.O. Box in Vessel, New York. In some instances,

mail sent to the Endicott, New York address was returned to the court as

“refused.” Ms. Krupinski stated that Appellant has used the Endicott, New

York address on prior custody filings. Ms. Krupinksi indicated that the PFA

related documents were sent to Appellant at the Endicott, New York address

because that was the address listed on the PFA petition, the return of service

for the PFA petition confirmed Appellant received service there, and Appellant

did not notify the court of another address where he wished to be served. Ms.

Krupinski stated that Appellant provided the court with the P.O. Box address

in Vessel, New York in March 2021, so the court now sends his court

documents there. Ms. Krupinski clarified that the custody matter is separate

from the PFA matter. Even if Appellant had used the P.O. Box address in prior

custody filings, the only address on file relevant to the PFA proceeding was

the address in Endicott, New York until March 2021 when Appellant provided

the P.O. Box address in the PFA matter.

Sheriff Lance Benedict testified at the hearing and confirmed that

Appellant was personally served with the PFA petition, temporary order, and

notice of hearing on August 6, 2020.

Throughout the hearing, Appellant argued that he does not receive mail

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at the Endicott, New York address, that he only receives mail at the P.O. Box

in Vessel, New York, and that the court knew or should have known that

Appellant does not receive mail at the Endicott, New York address. Appellant

also contested service of the PFA petition, claiming that he was under arrest

at the time service was made and his adult son accepted service on Appellant’s

behalf. Appellant further made disparaging comments to the trial judge during

the hearing, stating: “I wish you were a more honorable person. But

apparently not.” (Id. at 178). The court warned Appellant that he was

“dangerously close” to being held in contempt. (Id.) At the conclusion of the

hearing, the court stated that Appellant had 30 days to modify the final PFA

order from the date of its entry but Appellant had “slept on his rights.” (Id.

at 179). Consequently, the court denied relief on Appellant’s petition to

modify the PFA order.

Appellant filed a notice of appeal on August 2, 2021, which this Court

quashed as untimely on September 2, 2021.5 On October 15, 2021, Appellant

filed a petition for allowance of appeal to the Supreme Court, which the Court

denied on December 28, 2021.

On September 8, 2021, Appellant filed another petition to modify the

____________________________________________

5 Although Appellant attempted to file a notice of appeal on July 1, 2021, he
mistakenly filed a motion for reconsideration in the trial court. As the court
did not expressly grant reconsideration, the court denied the reconsideration
motion as untimely on July 13, 2021. Appellant’s August 2, 2021 notice of
appeal sought to appeal the July 13, 2021 order and June 7, 2021 order.

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final PFA order. Appellant again challenged his lack of notice regarding the

rescheduled PFA hearing and final PFA order, and further claimed the PFA

petition failed on the merits because Appellee did not allege any abuse by

Appellant in the petition to justify the final PFA order. On September 20,

2021, Appellant filed a motion seeking recusal of Judge Smith.

On September 30, 2021, the court held a hearing on Appellant’s petition

to modify the PFA order and the recusal motion. Appellant claimed there was

no evidence or testimony of his abuse to warrant imposition of the final PFA

order. Appellant again asserted his lack of notice of the rescheduled PFA

hearing. During the proceeding, Appellant insulted the judge once again,

stating: “I personally don’t think that you’re a very honorable person.” (N.T.

Hearing, 9/30/21, at 16). The court stated on the record that it was denying

Appellant’s September 8, 2021 petition to modify the PFA order as untimely.

Appellant then criticized Judge Shurtleff (who had presided at the final PFA

hearing) and called him “a frickin moron.” (Id. at 25). The court subsequently

found Appellant in contempt and issued him a $200.00 fine for cursing and

slandering a judge.

Following the hearing, the court issued three separate orders on

September 30, 2021, denying Appellant’s recusal motion, holding Appellant in

contempt, and denying his September 8, 2021 petition to modify the final PFA

order. Appellant timely filed three separate notices of appeal on October 12,

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2021.6 Nevertheless, Appellant failed to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i)

contemporaneously with his notices of appeal.7 On November 2, 2021, this

Court directed Appellant to file his concise statement by November 12, 2021.

Appellant complied on November 10, 2021.

On appeal, Appellant purports to raise 11 issues for our review:

Can a trial court hold an ex parte final order of [PFA] hearing
when the defendant has not been notified of the hearing?

[Do the] Pennsylvania and United States Constitution[s]
guarantee an individual the right to a fair and impartial trial
or hearing, the right to counsel, the right to confront their
accusers and due process?

Must the trial court prothonotary notify the defendant of all
hearing and trial dates and serve all orders to the defendant
in a PFA case?

If the notifications to a defendant in a PFA case are returned
undeliverable, must the prothonotary re-institute the
original process of service?

Must a trial judge recuse himself from a criminal or quasi-
criminal matter where his impartiality and his bias toward
the defendant is questioned?

In a matter where a trial court is required to recuse himself,
are any orders issued by him invalid?

[If] the original trial judge in a PFA matter recuses himself,
does the new presiding judge have the authority to overturn
a PFA final order that was issued with an abuse of
____________________________________________

6 This Court consolidated the appeals sua sponte on November 17, 2021.

7 Because Child was listed as a protected party in the final PFA order, the
appeal was designated as a children’s fast track case.

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discretion?

Does Commonwealth v. Charnik specify under what
circumstances a trial court can be reversed?

Does Witherspoon v. Walmart state that extraordinary
cause would allow a trial court to act on a final judgment
and appeal time expired due to oversight, act by court, or
judicial process, that operates to deny losing party
knowledge of entry of final order?

A judge whose impartiality may be questioned shall recuse
himself?

Does the Constitution protect freedom of speech and
expression?

(Appellant’s Brief at 3-5).

Preliminarily, we recognize:

[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. … Although this
Court is willing to liberally construe materials filed by a pro
se litigant, pro se status confers no special benefit upon the
appellant. To the contrary, any person choosing to
represent himself in a legal proceeding must, to a
reasonable extent, assume that his lack of expertise and
legal training will be his undoing.

In re Ullman, 995 A.2d 1207, 1211-12 (Pa.Super. 2010), appeal denied, 610

Pa. 600, 20 A.3d 489 (2011) (some internal citations omitted).

Regarding the statement of the case section of an appellate brief, Rule

2117 provides, in pertinent part:

Rule 2117. Statement of the Case

(a) General rule.—The statement of the case shall
contain, in the following order:

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* * *

(4) A closely condensed chronological statement, in
narrative form, of all the facts which are necessary to be
known in order to determine the points in controversy,
with an appropriate reference in each instance to the
place in the record where the evidence substantiating the
fact relied on may be found. See Rule 2132 (references
in briefs to the record).

* * *

(b) All argument to be excluded.—The statement of
the case shall not contain any argument. It is the
responsibility of appellant to present in the statement of the
case a balanced presentation of the history of the
proceedings and the respective contentions of the parties.

Pa.R.A.P. 2117(a)(4), (b).

As to the argument section of an appellate brief, Rule 2119(a) provides:

Rule 2119. Argument

(a) General rule.—The argument shall be divided into
as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.

Pa.R.A.P. 2119(a). Importantly, where an appellant fails to properly raise or

develop his issues on appeal, or where his brief is wholly inadequate to present

specific issues for review, a court will not consider the merits of the claims

raised on appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000) (holding

appellant waived claim where she failed to set forth adequate argument

concerning her claim on appeal; appellant’s argument lacked meaningful

substance and consisted of mere conclusory statements; appellant failed to

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cogently explain or even tenuously assert why trial court abused its discretion

or made error of law). See also Lackner v. Glosser, 892 A.2d 21 (Pa.Super

2006) (explaining appellant’s arguments must adhere to rules of appellate

procedure, and arguments which are not appropriately developed are waived

on appeal; arguments not appropriately developed include those where party

has failed to cite any authority in support of contention); Estate of Haiko v.

McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating rules of appellate

procedure make clear appellant must support each question raised by

discussion and analysis of pertinent authority; absent reasoned discussion of

law in appellate brief, this Court’s ability to provide appellate review is

hampered, necessitating waiver of issue on appeal).

Further, a Rule 1925 statement of errors complained of on appeal must

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues; issues not included in the

Rule 1925 concise statement are waived on appeal. In re A.B., 63 A.3d 345

(Pa.Super. 2013).

This Court has considered the question of what constitutes
a sufficient [concise] statement on many occasions, and it
is well-established that [an a]ppellant’s concise statement
must properly specify the error to be addressed on appeal.
The [concise] statement must be specific enough for the
trial court to identify and address the issue an appellant
wishes to raise on appeal. Further, this Court may find
waiver where a concise statement is too vague. When a
court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. A [c]oncise
[s]tatement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no

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[c]oncise [s]tatement at all.

Id. at 350 (internal citations omitted).

Instantly, the defects in Appellant’s brief are substantial. To begin,

Appellant’s statement of the case fails to present a closely condensed

chronological statement containing all relevant facts necessary to resolve this

appeal. See Pa.R.A.P. 2117(a). Likewise, Appellant does not provide a

balanced presentation of the history of the proceedings and the respective

contentions of the parties. See Pa.R.A.P. 2117(b). Instead, Appellant’s

statement of the case consists of his version of the events and includes legal

argument in violation of Rule 2117(b). See id.

More importantly, Appellant’s argument section is woefully inadequate.

At the outset, Appellant’s argument section is not divided into separate

sections for each of his 11 questions to be argued, in contravention of Rule

2119(a). See Pa.R.A.P. 2119(a). As well, Appellant cites some law

completely irrelevant to this appeal. For example, Appellant cites the standard

of review applicable for the denial of post-conviction relief in a criminal

proceeding. (See Appellant’s Brief at 16). In some instances, Appellant also

purports to quote from a case or statute but does not supply the authority on

which he relies. (Id. at 27-28). In other instances, Appellant cites excerpts

from cases or statutes without a cogent explanation of how the authority cited

applies to the facts of his case. See Pa.R.A.P. 2119(a).

Additionally, Appellant makes sweeping, bald allegations accusing court

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administration and judicial officials of violating their oaths of office and

engaging in a conspiracy against him, with no support whatsoever. Further,

the trial court had difficulty discerning Appellant’s issues on appeal from his

concise statement, which purported to allege 16 errors. As the court stated:

The statement of errors filed by Appellant is little more than
a harangue of personal attacks against all of the judges who
have presided in this action. With one exception the
statement alleges only that the judges’ decisions were
erroneous, but other than perfunctory assertions of
unspecified constitutional violations, the statement fails to
explain why any of the court’s rulings were error. Appellant
cites no statute, no rule, no case law, nor any common law
principle allegedly violated. …

(Trial Court Opinion, filed 12/15/21, at 1). We agree that Appellant’s vague

and prolix Rule 1925 statement was insufficient to provide meaningful review

for the majority of Appellant’s claims. See In re A.B., supra.

In all fairness to Appellant, however, we will attempt to address

Appellant’s claims in three sections as they relate to (1) the denial of his

September 8, 2021 petition to modify the final PFA order; (2) the court’s denial

of his recusal motion; and (3) the court’s finding of Appellant in contempt.

Regarding the denial of Appellant’s petition to modify the PFA order, we

initially note that “[t]he time within which a trial court may grant

reconsideration of its orders is a matter of law…” Estate of Haiko, supra at

158. Importantly, a trial court generally has only 30 days to modify its

judgments or orders. See 42 Pa.C.S.A. § 5505. In some circumstances,

extraordinary cause may justify court intervention beyond the 30 days. ISN

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Bank v. Rajaratnam, 83 A.3d 170, 172 (Pa.Super. 2013).

Here, the court held a hearing on June 7, 2021 to address Appellant’s

claim that he did not receive notice of the rescheduled hearing for the PFA

petition or the final PFA order. After hearing testimony from Ms. Krupinski,

the court decided that Appellant had “slept on his rights” and done nothing to

notify the court that he wanted to receive mail somewhere other than his

residence, where he had received proper service of the PFA petition and notice

of the original hearing scheduled for August 13, 2020. Following the court’s

denial of relief, Appellant filed a notice of appeal to this Court. Nevertheless,

this Court quashed the appeal as untimely. Essentially, Appellant now

attempts to get a “second bite at the apple” by challenging the court’s decision

on notice once again. As the court denied relief of Appellant’s March 19, 2021

petition regarding lack of notice at the June 7, 2021 hearing, Appellant’s

attempt to contest that decision in the current appeal is untimely. See

Pa.R.A.P. 903(a) (stating appellant shall have 30 days to file notice of appeal).

Appellant also seeks to attack the final PFA order on the merits, claiming

that Appellee failed to present testimony or evidence establishing abuse.

Nevertheless, this Court cannot consider the merits of the final PFA order at

this juncture, where Appellant failed to garner relief in the trial court on his

lack of notice claim. As Appellant did not prevail on demonstrating

“extraordinary cause” such that the trial court could modify the final PFA order,

Appellant cannot gain review on the merits in this appeal. See ISN Bank,

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supra. See also (Trial Court Opinion at 2) (addressing one issue court could

decipher from Appellant’s Rule 1925 statement and stating that Appellant was

not entitled to relief because he “sought to litigate the matter de novo” in

disregard of Section 5505).

With respect to Appellant’s recusal motion, our scope and standard of

review are as follows:

The denial of a motion to recuse is preserved as an
assignment of error that can be raised on appeal following
the conclusion of the case. We review a trial court’s decision
to deny a motion to recuse for an abuse of discretion.
Indeed, our review of a trial court’s denial of a motion to
recuse is exceptionally deferential. We extend extreme
deference to a trial court’s decision not to recuse. We
recognize that our trial judges are honorable, fair and
competent, and although we employ an abuse of discretion
standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially. Hence,
a trial judge should grant the motion to recuse only if a
doubt exists as to his or her ability to preside impartially or
if impartiality can be reasonably questioned.

Interest of D.R., 216 A.3d 286, 292 (Pa.Super. 2019), aff’d, ___ Pa. ___,

232 A.3d 547 (2020).

“A party seeking recusal must assert specific grounds in support of the

recusal motion before the trial judge has issued a ruling on the substantive

matter before him or her.” Bowman v. Rand Spear & Associates, P.C.,

234 A.3d 848, 862 (Pa.Super. 2020) (internal citation omitted). “Recusal is

required whenever there is a substantial doubt as to the jurist’s ability to

preside impartially.” Id. “However, opinions formed by the judge on the basis

of facts introduced or events occurring in the course of the current proceedings

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do not constitute a basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make fair judgment

impossible.” Id. at 862-63.

Here, Appellant claims, inter alia, Judge Smith waved his hand at

Appellant in a dismissive manner, used Appellee’s disability status against

Appellant, and seemed to favor Appellee’s counsel. Appellant also asserts that

Judge Smith’s actions at the June 7, 2021 and September 30, 2021 hearings

demonstrated bias. We have carefully reviewed the record and none of

Appellant’s assertions, even if true, rises to the level of a “deep-seated

favoritism [for Appellee] or antagonism [against Appellant] that would make

fair judgment impossible.” See id. To the contrary, Judge Smith listened to

Appellant’s arguments and proceeded in a fair and impartial manner, even in

the face of Appellant’s blatant disrespect for Judge Smith and the court’s

authority. On this record, we see no reason to disrupt the court’s denial of

Appellant’s recusal motion. See Interest of D.R., supra.

Regarding the contempt finding, we observe that “[e]ach court is the

exclusive judge of contempts against its process, and on appeal its actions will

be reversed only when a plain abuse of discretion occurs.” Ricci v. Geary,

670 A.2d 190, 191 (Pa.Super. 1996). “The ability to issue a criminal contempt

sanction empowers a trial judge with the ability to maintain command over

his or her courtroom. If we carve away at this power, the sanctity and balance

of the courtroom may be in jeopardy.” In re Arrington, 214 A.3d 703, 707

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(Pa.Super. 2019). See also 42 Pa.C.S.A. § 4132(3) (stating court may issue

finding of contempt based on misbehavior of any person in presence of court

that obstructs administration of justice).

Here, the court held Appellant in contempt at the September 30, 2021

hearing, after Appellant referred to Judge Shurtleff as a “frickin moron.” The

court based its contempt finding on Appellant’s use of a curse word and insult

of another trial judge. On appeal, Appellant complains the court violated his

right to free speech because Appellant contends that neither “frickin” nor

“freaking” constitutes a curse word. Nevertheless, we need not confront

Appellant’s constitutional challenge, where the record makes clear the court’s

contempt finding was not only based on use of the disputed curse word, but

also due to Appellant’s disrespect of another trial judge.8 In fact, Appellant

had previously disrespected Judge Smith at the June 7, 2021 hearing and the

court warned Appellant he was “dangerously close” to being held in contempt.

Notwithstanding the court’s warning, Appellant disparaged Judge Smith again

at the September 30, 2021 hearing and also insulted Judge Shurtleff. On this

record, we cannot say the court abused its discretion in holding Appellant in

contempt. See In re Arrington, supra. Accordingly, we affirm.

Orders affirmed.

____________________________________________

8 See P.J.S. v. Pennsylvania State Ethics Com’n, 555 Pa. 149, 723 A.2d
174 (1999) (explaining that when case raises both constitutional and non-
constitutional issue, court should not reach constitutional issue, if case can
properly be decided on non-constitutional grounds).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/26/2022

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