HomeMy WebLinkAbout326 S 2018 (2)
MICHELLE A. MANCE, : THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
: DOMESTIC RELATIONS SECTION
v. :
:
DYLAN T. WINTERS, : DOCKET NO. 00326 S 2018
Defendant : PACSES NO. 378117035
OPINION PURSUANT TO Pa.R.A.P. NO. 1925(a)
Smith, J., September 16, 2021 -
PROCEDURAL BACKGROUND
Plaintiff and Defendant are parents of three children, K.M. (YOB 2009), M.M.
(YOB 2012) and S.M. (YOB 2015). The parties were married for a time and separated
around 2018. Pursuant to the parties’ separation, Plaintiff filed for child support from
Defendant for the three minor children. The support action went through several
proceedings, culminating in the hearing before Support Master Jeffrey Lawrence,
Esquire on \[date\] via Zoom video conferencing.
The Support Master’s Report and Recommendation was issued on \[date\] and
adopted as an Order of Court by the Honorable Jessica E. Brewbaker on \[date\]. The
Order required that Defendant pay $x per month in child support to Plaintiff on behalf of
the three minor children.
On \[date\] Defendant filed his Exceptions to the Support Master’s Report and
Recommendation. Pursuant to his exceptions being filed, we issued a Order for the
transcript to be produced and a briefing schedule on \[date\]. The transcript was
produced and filed on \[date\]. Defendant’s brief was due on \[date\].
On \[date\] Defendant filed a “Motion for Enlargement of Time to Respond to
Exceptions.” We granted Defendant’s Motion and issued an Amended Briefing
schedule on May 5, 2021, requiring Defendant to file his brief by May 28, 2021.
Defendant did not file a brief within the specified time.
Defendant did, however, file a Motion for Request of Audio Recording on \[date\].
In that Motion, Defendant stated that the transcript he received contained several errors
and that he would need the recording of the Zoom hearing before the Support Master in
order to prepare his brief in support of his exceptions. Defendant did not specify what
the errors were, but instead included as an exhibit and email that he had sent to the
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Court Administrator requesting the audio recording. In that email, Defendant alluded to
side conversations that he remembered differently than depicted in the transcript and
wanted to include a number of things that were said “off the record.” All of the missing
information centered around what he believed to be Plaintiff’s false testimony.
As the alleged errors were unclear, non-specific, and did not pertain to the
calculations of Defendant’s support obligation, we deemed the production of the audio
recording unnecessary and denied Defendant’s request on June 25, 2021. On June 29,
2021, we issued a Rule upon Defendant to show cause why his exceptions should not
be dismissed for failing to file a brief. Defendant did not respond to the Rule.
Instead, on \[date\] Defendant refiled his Motion for Request of Audio Hearing,
which he titled “Appeal for Order of Court In Re: Motion for Request of Audio Hearing.”
We deemed this to be a Motion for Reconsideration of our previous Order, and again
denied Defendant’s Motion as he had provided no new information or legal basis for
reconsideration. Defendant filed his notice of appeal from our Order denying his Motion
for Reconsideration on \[date\].
On July 26, 2021, in accordance with Pa.R.A.P. No. 1925(b) we issued an Order
for Defendant to file a Concise Statement of Errors Complained of on Appeal. To date,
Defendant has not filed his Concise Statement.
DISCUSSION
APPEALABLE ORDERS
The Pennsylvania Rules of Appellate Procedure specify which types of orders
are appealable. Generally, only final orders are appealable. Pursuant to Pa.R.A.P. No.
341(b) a final order is one that “(1) disposes of all claims and of all parties…(3) is
entered as a final order pursuant to paragraph (c) of this rule; or (4) is an order pursuant
to paragraph (f) of this rule.” Paragraph (c) specifies that in the case of an action where
there are multiple claims, an immediate appeal can be taken even if all claims are not
resolved if the appeal would resolve the entire matter, subject to certain conditions.
Paragraph (f) specifies that rules for proceeding on appeal under the Post Conviction
Relief Act. Neither paragraph (c) nor paragraph (f) apply to this case.
Our Order denying Defendant’s Motion for Audio Recording is not a final order.
Defendant’s exceptions to the Support Master’s Report and Recommendation are
outstanding because Defendant has not yet filed his brief so that the matter can
proceed to disposition.
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There are other types of order that may be appealed in certain circumstances.
Pa.R.A.P. No. 311 covers interlocutory appeals of right. Interlocutory appeals of right
are certain enumerated non-final orders from which an appeal may be taken without
permission. A denial of a request for an audio recording is not one of those enumerated
appeals.
Pa.R.A.P. No. 1311 discusses interlocutory appeals by permission, and states
that an appeal may be taken by permission from an interlocutory order when it is “(1)
certified under 42 Pa.C.S. §702(b) or for which certification pursuant to 42 Pa.C.S.
§702(b) was denied; (2) for which certification pursuant to Pa.R.A.P. 341(c) was denied;
or (3) that determined that a defendant’s motion to dismiss on the basis of double
jeopardy is frivolous.” The only section applicable to Defendant’s case would be section
(1).
42 Pa.C.S. §702(b) allows for interlocutory appeals by permission when the trial
court believes that the order “involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the matter…” Defendant has not
requested that we certify the Order under this statute, and for the reasons listed, infra,
we do not believe that our Order is one that involves a controlling question of law as to
which there is substantial ground for difference of opinion.
As such, we respectfully request that Defendant’s appeal be quashed for failure
to appeal from an appealable order.
FAILURE TO FILE CONCISE STATEMENT
We will address the merits of Defendant’s appeal, however, in the event that
Defendant’s appeal is allowed to proceed. Because Defendant did not file a concise
statement of errors complained of on appeal, we are limited in our analysis. Pa.R.A.P.
1925(b)(4)(vii) states that issues to included in a concise statement are waived.
Additionally, both our Supreme and Superior Courts have addressed the issue of
proceeding when an appellant fails to file a concise statement, or files an inadequate
statement.
The Pennsylvania Supreme Court held that issues not included in a
Pa.R.A.P. 1925(b) statement are deemed waived on appeal. Pa.R.A.P.
1925(b) is intended to aid trial judges in identifying and focusing upon
those issue which the parties plan to raise on appeal. Rule 1925 is thus a
crucial component of the appellate process. When the trial court has to
guess what issues an appellant is appealing, that is not enough for
meaningful review. When an appellant fails adequately to identify in a
concise manner the issues sought to be pursued on appeal, the trial court
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is impeded in its preparation of a legal analysis which is pertinent to those
1
issues.
Therefore, we respectfully request that Defendant’s appeal be quashed for
failure to file a concise statement of errors complained of on appeal, prohibiting
meaningful review of Defendant’s appellate claims.
AUDIO RECORDINGS OF PROCEEDINGS
Assuming, arguendo, Defendant has not waived his issues on appeal, we will
address what we believe is Defendant’s core issue. Defendant believes that he is not
able to adequately prepare his brief in support of his exceptions to the Support Master’s
report and recommendation.
A parties’ right to audio recordings of proceedings has not been addressed
frequently by our appellate courts. In Com. v. Szakal, 50 A.3d 210 (Pa. Super. 2012), a
criminal defendant alleged that he was not able to fully prepare for his appeal because
he had not received a full official transcript of his trial. The Superior Court held that
“objections to the trial transcript are properly settled in the lower court.” Further, the
Court stated that “Appellant’s limited proof, that is, his own recollection and his
representation that the court stenographer made a comment suggesting that counsel
request the audio recordings of trial, are hardly sufficient to justify this type of claim…”
The Superior Court ultimately held that “because the transcript has been provided, and
because counsel’s claim affects the placement of objections and motions, as opposed
to material alterations to or elimination of any witness testimony, we are not precluded
from conducting a meaningful review of Appellant’s issues on appeal.”
Similarly, we are not precluded from conducting a meaningful review of
Defendant’s exceptions based upon the alleged errors contained in the trial transcript.
None of the errors listed by Defendant relate to the calculation of support. If Defendant
had pointed to an issue regarding testimony related to his or Plaintiff’s income or
expenses, then we may have been persuaded to grant Defendant’s Motion. Because,
however, Defendant’s baseless claims of Plaintiff’s dishonesty seem to refer more to
“got ya” moments regarding the parties’ deteriorating relationship, we find that these
errors are immaterial to the issues raised in Defendant’s exceptions.
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Com. v. Lemon, 804 A.2d 34, 36-37 (Pa. Super. 2002)(internal quotations and citations omitted.).
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By the Court,
Matthew P. Smith, J.
Kara W. Haggerty, Esquire
245 Grandview Avenue, Suite 102
Camp Hill, PA 17011
Dylan T. Winters
2430 Fishing Creek Valley Road
Harrisburg, PA 17112
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