J-A22003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIN NEWELL AND ON BEHALF OF : IN THE SUPERIOR COURT OF
MINOR CHILD RY.N. : PENNSYLVANIA
:
:
v. :
:
:
CHRISTOPHER NEWELL :
: No. 210 WDA 2022
Appellant :
Appeal from the Order Dated January 18, 2022
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD-13-000438
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: OCTOBER 18, 2022
Appellant, Christopher Newell (Father), appeals pro se from the January
18, 2022 entry of a final order disposing of a Protection from Abuse Act (PFA)
petition filed by Erin Newell (Mother) in her own right and on behalf of the
parties’ five-year-old daughter, Ry.N. (Child). We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
On May 4, 2021, Mother filed a PFA petition against Father. The
court granted [a] temporary PFA [order] and a final hearing was
scheduled for May 12, 2021. At the May 12, 2021 hearing [] the
parties entered into a consent agreement and [an] order for [the]
expiration of [the] temporary PFA order which included language
that Father shall not “abuse, stalk, threaten, or attempt or
threaten to use physical force against [Mother] … in any place
where she might be found…” Further, there was language in the
consent order that prohibited the parties from having any contact
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* Retired Senior Judge assigned to the Superior Court.
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or communication with each other, directly or indirectly, except
for custody purposes. Pursuant to the order, Father was allowed
to call or text Mother for custody purposes only.
Mother filed an emergency petition for special relief alleging that
Father repeatedly violated the terms of the May 12, 2021 order,
by sending threatening text messages and stalking her. Mother’s
attorney raised [these facts on November 1, 2021 during a final
PFA hearing relating to a separate petition filed on behalf of the
parties’ two children.1] Father admitted on the record to throwing
a cast iron pan at Mother[, which] was one of the allegations in
the May 4, 2021 PFA. Mother requested that Father be held in
contempt for violating the May 12, 2021 consent order and that
the court order a final PFA.
On January 4, 2022, Mother obtained a temporary PFA order on
her behalf and on behalf of [] Ry.N. The date, time and location
of the final hearing was included in the temporary order. Mother,
and her attorney, appeared for the January 18, 202[2] final
hearing. Father was not present when the case was called, despite
having been served with the petition and notice of the hearing
more than once. The final PFA was entered by default due to
Father’s failure to appear. No record was made of the proceeding
as no hearing was held. Father was not granted partial custody.
Custody was to be reintroduced in a therapeutic setting after
Father [attended counseling and] completed his drug and alcohol
evaluation with Dr. Paul Herman.
Father filed a motion requesting a new PFA hearing. Father
alleged that he was in the defendant waiting area since 9:00 a.m.
[on the day of the final hearing] and he was not aware that he
needed to check in [with courtroom personnel]. He further alleged
he was in the bathroom and did not hear the intercom system
page his name. Mother’s attorney filed a response noting that
Father is “no stranger to the PFA actions filed by Mother….”
Mother’s attorney requested counsel fees[.] On January 24, 2022,
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1 “The parties are the natural parents to two children. The second child (Re.N.)
is nine (9) years old and Father is to have no contact with her pursuant to [a]
November 2, 2021 [f]inal PFA.” Trial Court Opinion, 4/18/2022, at 1 n.1.
Re.N. is not the subject of the PFA order at issue.
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both requests were denied by order of court. Father filed a timely
[pro se] appeal to the final PFA order.[2]
Trial Court Opinion, 4/18/2022, at 3-5 (unnecessary capitalization, original
brackets, and original footnote omitted).
Initially, we note that Father’s pro se brief to this Court is woefully
undeveloped. This Court has previously determined:
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101.
This Court may quash or dismiss an appeal if the appellant fails to
conform to the requirements set forth in the Pennsylvania Rules
of Appellate Procedure. Id.; Commonwealth v. Lyons, 833 A.2d
245 (Pa. Super. 2003). 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. Id. at 252. 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. Commonwealth v.
Rivera, 685 A.2d 1011 (Pa. Super. 1996).
The Pennsylvania Rules of Appellate Procedure provide guidelines
regarding the required content of an appellate brief as follows:
Rule 2111. Brief of the Appellant
(a) General Rule. The brief of the appellant, except as
otherwise prescribed by these rules, shall consist of the
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2 Father filed a pro se notice of appeal on February 17, 2022. On February
23, 2022, the trial court issued an order directing Father to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Father complied timely on March 25, 2022. On April 18, 2022, the trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a). This case was scheduled for
oral argument to be held on September 20, 2022 before this Court. Father
retained counsel who, on September 19, 2022, filed an emergency motion to
continue the matter and an application to file supplemental briefs with this
Court. In separate per curiam orders dated September 20, 2022, this Court
denied all relief and, by agreement of the parties, the case was submitted for
decision on the parties’ briefs.
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following matters, separately and distinctly entitled and in
the following order:
(1) Statement of jurisdiction.
(2) Statement of both the scope of review and the standard
of review.
(3) Order or other determination in question.
(4) Statement of the question involved.
(5) Statement of the case.
(6) Summary of the argument.
(7) Argument for the appellant.
(8) A short conclusion stating the precise relief sought.
(9) The opinions and pleadings specified in Subdivisions (b)
and (c) of this rule.
(10) In the Superior Court, a copy of the statement of the
matters complained of on appeal filed with the trial court
pursuant to Rule 1925(b), or an averment that no order
requiring a Rule 1925(b) statement was entered.
Pa.R.A.P. 2111(a)(1)-(10) (emphasis added). Additionally, Rules
2114 through 2119 specify in greater detail the material to be
included in briefs on appeal. See Pa.R.A.P. 2114-2119.
Commonwealth v. Adams, 882 A.2d 496, 497–498 (Pa. Super. 2005).
Here, Father’s brief consists of two sections. The first section
incorporates the statement of the case with a summary of Father’s appellate
argument. The second section is Father's conclusion. Father, however, failed
to include a statement of jurisdiction, statement of questions involved, or a
copy of the Rule 1925(b) concise statement. Moreover, Father’s brief contains
no citations to authority and makes no specific reference to the certified
record. See Pa.R.A.P. 2119(b)-(c). On these bases, we could quash or
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dismiss Father’s appeal for failing to comply with our Rules of Appellate
Procedure. See Pa.R.A.P. 2101. Despite the defects, however, we will
address the merits of Father’s claims.
Essentially, Father argues that the trial court erred by entering a default
final PFA order against him. Father claims that he arrived for the PFA hearing
at the designated time “and waited in the defendant waiting area until 10:30
a.m., only leaving the area for less than two minutes to use the bathroom.”
Father’s Pro Se Brief at *2.3 Father claims that court officers directed him to
sit in the waiting room, he did not hear his name being paged, and was
unaware that he had to check-in. Id. Father asserts that it was not until he
saw Mother and her attorney leaving that “he ask[ed] the court clerk if the
hearing was rescheduled” and was told that the hearing had taken place
without him and the trial court had entered a default PFA order. Id. at 2-3.
Father maintains that the trial court erred when it found he was “familiar with
how PFA proceedings work” because all of Father’s previous PFA hearings were
“online video conference meetings” and “[t]he hearing on January 18, 2022
was the first [hearing at which physical attendance was required].” Id. at 3.
Father also disputes the trial court’s finding that Father’s name had been
paged over an intercom system, claiming the court clerk confirmed that “she
paged him verbally once.” Id. at 2. Finally, Appellant argues that Mother
clearly abused the legal system and that his “request for appeal is simply to
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3 Father’s pro se brief is not paginated. As such, we have supplied page
numbers, not including the cover page.
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disprove [Mother’s] false allegations of child abuse [and] drug and alcohol
use[.]” Id. at 3-4.
We employ the following standard of review:
In the context of a PFA order, we review the trial court's legal
conclusions for an error of law or abuse of discretion. The purpose
of the PFA Act is to protect victims of domestic violence from those
who perpetrate such abuse, with the primary goal of advance
prevention of physical and sexual abuse.
K.B. v. Tinsley, 208 A.3d 123, 127 (Pa. Super. 2019) (internal citations and
quotations omitted).
Moreover,
[a] question regarding whether a due process violation occurred
is a question of law for which the standard of review is de novo
and the scope of review is plenary. Due process requires that the
litigants receive notice of the issues before the court and an
opportunity to present their case in relation to those issues. It is
well settled that procedural due process requires, at its core,
adequate notice, opportunity to be heard, and the chance to
defend oneself before a fair and impartial tribunal having
jurisdiction over the case.
Int. of S.L., 202 A.3d 723, 729 (Pa. Super. 2019) (internal citations and
quotations omitted); see also Leshko v. Leshko, 833 A.2d 790, 791 (Pa.
Super. 2003) (original brackets omitted) (in reviewing due process challenges,
this Court has “held that a defendant has been afforded due process where
the appellant was entitled to present witnesses in his own defense and to
cross-examine witnesses including the petitioner”). “Due process requires
only that a party be provided an opportunity to be heard; it does not confer
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an absolute right to be heard.” Captline v. County of Allegheny, 718 A.2d
273, 275 (Pa. 1998) (citations omitted).
In this case, there is no dispute that Father had notice of the final PFA
hearing because he avers that he was present at the time and location of the
hearing. Moreover, Father was given the opportunity to be heard, the chance
to defend himself, and was entitled to present witnesses and cross-examine
Mother at the scheduled hearing, but he did not avail himself of that
opportunity. The trial court noted that “Father did appear on November 2,
2021 for a hearing” before the same court “in which a [f]inal PFA [o]rder was
entered against Father on behalf of his older daughter[.]” Trial Court Opinion,
4/18/2022, at 11 (emphasis in original). As such, we reject Father’s
suggestion that he was not familiar with the trial court’s procedures for calling
and holding in-person final PFA hearings. The trial court further determined
that “Father is experienced enough with PFA proceedings as a pro se litigant
to have asked a court staff member about the status of the hearing, rather
than sitting and waiting to use the bathroom during the time that cases are
usually disposed of.” Id. at 12. The trial court questioned whether Father
was present and ultimately concluded that “Father’s reasons for not appearing
at the final PFA hearing [were unpersuasive].” Id. Regarding PFAs, “we must
defer to the [factual and] credibility determinations of the trial court.” Custer
v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007) (en banc) (citation
omitted). Here, under the facts relied upon by the trial court, Father did not
have an absolute right to be heard and did not properly avail himself of the
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opportunity provided. Accordingly, we discern no due process violation and
Father is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2022
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