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HomeMy WebLinkAbout93-3650 CivilDEBORAH A. ZEIGLER, Plaintiff Vo MICHAEL E. ZEIGLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION-LAW NO. 93-3650 CIVIL TERM IN RE: DEFENDANT'S PETITION TO FILE EXCEPTIONS TO MASTER'S REPORT NUNC PRO TUNC BEFORE OLER, J. ORDER OF COURT AND NOW, this 31 st day of July, 2000, upon consideration of Defendant's Petition To File Exceptions to Master's Report Nunc pro Tunc, and for the reasons stated in the accompanying opinion, the petition is denied. Constance P. Brunt, Esquire Beaufort Professional Center 1820 Linglestown Road Harrisburg, PA 17110-3339 Attorney for Plaintiff Karl E. Rominger, Esquire Rominger Law Offices 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant BY THE COURT, esley Oler. ~. DEBORAH A. ZEIGLER, Plaintiff Vo MICHAEL E. ZEIGLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION-LAW NO. 93-3650 CIVIL TERM IN RE: DEFENDANT'S PETITION TO FILE EXCEPTIONS TO MASTER'S REPORT NUNC PRO TUNC BEFORE OLER, J. OPINION AND ORDER OF COURT OLEK, J., July 31, 2000. In this divorce case, commenced in 1993, a decree in divorce and a supplemental decree respecting economic issues were issued on February 24, 2000.~ For disposition at this time is a "Petition To File Exceptions to Master's Report Nunc pro Tunc," filed on behalf of Defendant. One basis for the petition is that "Defendant had no ability to present evidence at the Master's Hearing or to cross-examine or call witnesses of his own.'2 The second basis is that Defendant "has not received a copy of the Master's Report? The record, for purposes of disposition of Defendant's petition, includes depositions of the divorce master, the divorce master's secretary, Defendant's father, Defendant's mother, Defendant's former attorney, and two other attorneys whom Decree in Divorce, February 24, 2000; Distribution Order, February 24, 2000. Defendant's Petition To File Exceptions to Master's Report Nunc pro Tune, para. 12. 3Id. para. 7. Defendant consulted.4 The record does not include a deposition of Defendant; a previous perjury conviction had rendered him an incompetent witness in any civil casefi Based upon the evidence in the record, and for the reasons stated in this opinion, Defendant's Petition To File Exceptions to Master's Report Nunc pro Tunc will be denied. STATEMENT OF FACTS Plaintiff, Deborah A. Zeigler, commenced the instant divorce action against Michael E. Zeigler, Defendant, on November 17, 1993. The litigation has been characterized by bitter custody and economic disputes, including numerous petitions for special relief, and two adjudications in which Defendant was found in contempt. Decrees apparently ending the marital aspects of the case were issued on February 24, 2000. During the pendency of the case, on April 18, 1996, the Cumberland County Divorce Master, E. Robert Elicker, II, Esq., was appointed as master pursuant to Pennsylvania Rule of Civil Procedure 1920.51 at Defendant's request.6 An initial master's hearing was held on September 19, 1996.7 At this hearing, both parties and their respective counsel were present and evidence was received. 8 A second day of hearing was scheduled in January of 1997.9 However, discovery 4 In response to Defendant's petition, the court issued a rule to show cause upon Plaintiff' in the form prescribed by Pennsylvania Rule of Civil Procedure 206.5(d). Rule To Show Cause, March 27, 2000. 5 N.T. 9-10, Deposition of Hubert X. C_filroy, Esq., April 12, 2000; Act of July 9, 1976, P.L. 586, {}2, 42 Pa. C. S. {}5922 (disqualification by perjury). 6 Order of Court, August 18, 1997; N.T. 3-5, Deposition of E. Robert Elicker, II, Esq., April 7, 2000. 7 N.T. 4, Deposition of E. Robert Elicker, II, Esq., April 7, 2000. Sld. at 5. 9Id. matters, inter alia, resulted in a continuance of the hearing and additional delay. ~0 In January, 1999, at the suggestion of Defendant's counsel, Defendant executed a power of attorney authorizing his father, Carl Zeigler, to "handle all matters on my behalf relating to my divorce action pending with my wife, Deborah A. Zeigler.''~ Defendant's attorney encouraged the execution of the power of attorney due to Defendant's perjury conviction and his inability to testify in court.12 A further master's hearing was scheduled for February 1 and 2, 2000, at the request of Defendant's attorney. 13 Notice of this hearing, dated June 11, 1999, was sent by means of regular mail to both parties and their attorneys. In Defendant's counsel received notice of the hearing and apprised Defendant of the date by written correspondence. ~ Additionally, he orally notified Defendant's father and attorney-in- fact, Carl Zeigler.16 In September, 1999, Defendant's attorney filed a motion to withdraw as Defendant's counsel, due to irreconcilable differences caused by Defendant's failure to pay his bill as well as his failure to follow counsel's advice. 17 Subsequently, a court order was issued, without objection from Defendant,is permitting Defendant's attorney to withdraw his appearance four months prior to the scheduled hearing. ~9 Defendant did not ~°Id. at 5-6. i~ Exhibit 1, Deposition of Carl Zeigler, April 5, 2000. 12 N.T. 9-10, Deposition of Hubert X. Gilroy, Esq., April 12, 2000. ~3 N.T. 4-6, Deposition of Hubert X. Gilroy, Esq., April 12, 2000. ~4 N.T. 7, Deposition orE. Robert Elicker, II, Esq., April 7, 2000. 15 N.T. 6, Deposition of Hubert X. Gilroy, Esq., April 12, 2000. 26 N.T. 13-14, Deposition of Carl Zeigler, April 5, 2000; N.T. 7-8, Deposition of Hubert X. Gilroy, Esq., April 12. 2000. ~7 Motion to Withdraw as Counsel, August 19, 1999. 18 N.T. 16-17, Deposition of Hubert X. Gilroy, Esq., April 12, 2000. ~9 N.T. 16, Deposition of Hubert X. Gilroy, Esq., April 12, 2000; Order of Court, September 29, 1999. retain other counsel, and at the time of the hearing no counsel had entered an appearance on his behalf.2° On February 1 and 2, 2000, the second master's hearing was held and Defendant neither appeared personally nor was represented by legal counsel.2! Nor did Defendant, who was incarcerated in Virginia at the time,22 attempt to be present at the hearing.23 Defendant's father and attorney-in-fact, Cad Zeigler, was present for both days of the proceeding.24 No one, including Defendant's father, suggested that a continuance would be appropriate on behalf of Defendant.25 At the hearing, Defendant's father told the master not to send mail to Defendant at the business address where Defendant had previously received mail because he would not receive it there.26 He could not, however, provide another address where Defendant might be contacted.27 Plaintiff' s counsel requested that the master attempt to notify Defendant at his last known address, a prison in Winchester, Virginia, where she had confirmed that he was incarcerated at the time of the hearing.2s Defendant's father also provided the master with his own address so that a copy could be sent to him.29 On February 4, 2000, the Master's Report was filed and copies were immediately mailed to Defendant's father and to Defendant in Virginia at the address provided by 2o N.T. 8, Deposition of E. Robert Elicker, II, Esq., April 7, 2000; N.T. 6, Deposition of Traci J. Colyer, April 7, 2000. 2! N.T. 8-9, Deposition of E. Robert Elicker, II, Esq., April 7, 2000. 22 -/d. at 12. 23Id. at8. 24 Id. at 8-9. 25 Id at 6; N.T. 6, Deposition ofTraci J. Colyer, April 7, 2000. 26 N.T. 11, Deposition orE. Robert Elicker, II, Esq., April 7, 2000. 2?Id; N.T. 21, Deposition of Carl Zeigler, April 5, 2000. 28 N.T. 11-12, Deposition orE. Robert Elicker, II, Esq., April 7, 2000; N.T. 20, Deposition of Carl Zeigler, April 5, 2000. 29 N.T. 21, Deposition of Carl Zeigler, April 5, 2000. 4 Plaintiff' s counsel.3° Defendant's father received the copy that had been mailed to his address.3~ However, the copy mailed to Defendant at his last known address in Winchester, Virginia, was returned to the master's office marked undeliverable.32 During the ten-day period following the filing of the Report, during which time exceptions were to be filed, Defendant contacted his mother and requested that she phone Joseph D. Buckley, Esq., regarding possible representation of Defendant.33Attomey Buckley agreed to speak with Defendant. During their telephone conversations, Defendant questioned Attorney Buckley concerning the master's hearing and the filing of the Report.34 According to Attorney Buckley, Defendant and his family were both aware of the deadline for the filing of exceptions to the Master's Report before the ten days had expired.35 Neither party filed exceptions to the report within the ten-day period required under Pennsylvania Rule of Civil Procedure 1920.55-2(b). Consequently, Plaintiff, through her counsel, requested the entry of the divorce decree and the Distribution Order mentioned above, in accordance with the Master's Report and Recommendations. On February 24, 2000, the divorce decree and the economic decree in the form of a Distribution Order were duly entered.36 Subsequently, Karl E. Rominger, Esq., filed his appearance on behalf of Defendant. On March 2, 2000, Defendant filed a Petition To File Exceptions to Master's 3o N.T. 12-13, Deposition orE. Robert Elicker, II, Esq., April 7, 2000. 3~ N.T. 22, Deposition of Carl Zeigler, April 5, 2000. 32 N.T. 13-14, Deposition of E. Robert Elicker, II, Esq., April 7, 2000. 33 N.T. 13-14, Deposition of Dorothy Zeigler, April 25, 2000. 34 N.T. 6-9, Deposition of Joseph D. Buckley, Esq., April 12, 2000. 35 Id. at 9, 13. 36 Decree in Divorce, February 24, 2000; Distribution Order, February 24, 2000. Report Nunc pro Tunc. Defendant did not file a petition to open or vacate the decrees nor did he appeal either decree. DISCUSSION With respect to participation by a party in a master's hearing, the Pennsylvania Superior Court has held that, when a master's hearing is conducted in the absence of one party, it is not to be considered an impermissibly ex parte proceeding if both sides are given ample notice. Aloi v. Aloi, 299 Pa. Super. 400, 407, 445 A.2d 815, 819 (1982). In Aloi, neither the appellant nor her counsel appeared at the master's hearing even though both had ample notice. Id. at 403,445 A.2d at 816. InAloi, an essential factor in the court's rejection of the appellant's appeal from the divorce decree was that notice of the hearing had been adequately conveyed. Id. at 407, 445 A.2d at 819. The court stated that a party proceeds at his or her own peril by failing to attend a master's hearing when ample notice has been given. Id. at 408, 445 A.2d at 819. In the present case, the evidence demonstrated that Defendant and his counsel attended the first master's hearing,37 caused the second master's hearing to be scheduled,3s and were aware of the scheduled occurrence of the second master's hearing? The evidence further demonstrated that no continuance of the second master's hearing was requested by or on behalf of Defendant.4° Under these circumstances, and based upon the foregoing authority, the court is unable to accept Defendant's contention that he was deprived of procedural or substantive rights in connection with the conduct of 37 N.T. 5, Deposition of E. Robert Elicker, II, Esq., April 7, 2000. 38 N.T. 5-6, Deposition of Hubert X. Gilroy, Esq., April 12, 2000. 39Id. at6. 4o N.T. 8, Deposition of E. Robert Elicker, II, Esq., April 7, 2000; N.T. 6, Deposition of Traci J. Colyer, April 7, 2000. the second hearing, which proceeded in the absence of Defendant and of any legal representation on his behalf. With respect to the adequacy of notice of a master's report, the Pennsylvania Rules of Civil Procedure require that, after the conclusion of the master's hearing and the filing of the master's report, the master "shall immediately serve upon counsel for each party, or, if unrepresented, upon the party, a copy of the report and recommendation and written notice of the right to file exceptions." Pa. R. C. P. 1920.55-2. Furthermore, the rules set forth the acceptable methods of service of legal documents other than original process, such as notices: (i) If there is no attorney of record, service shall be made by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the part .... (ii) If such service cannot be made, service shall be made by leaving a copy at or mailing a copy to the last known address of the party to be served. Pa. R. C. P. 440(a)(2). The Supreme Court of Pennsylvania has stated that notice in compliance with Rule 440(a)(2)(ii) is sufficient. To hold that notice which is compatible with Rule 440(a)(2)(ii) is inadequate would be to require the person giving notice to go well beyond the prescribed requirements of the Rules of Civil Procedure. See Sklar v. Harleysville Ins. Co., 256 Pa. 617, 623, 587 A.2d 1386, 1389 (1991). The Pennsylvania Supreme Court has also stated that, because Rule 440(a)(2) allows for the service of all legal papers in a case other than original process on a pro se party by mail at his or her residence or last known address, it is incumbent on the pro se party to keep the court and opposing counsel apprised of his or her address. Id at 617, 587 A. 2d at 1389. The court in Sklar, in rejecting the petitioner's appeal from the denial of her petition to open or strike a judgment of non pros, based its holding on the fact that it was the failure of petitioner, a pro se party, to keep the court apprised of her address that was the direct cause of her failure to receive notice which had otherwise been sent pursuant to the Pennsylvania Rules of Civil Procedure. Id. (discussing Pennsylvania Rule of Civil Procedure 440(a)(2)(ii)). In addition, as a general rule a claim for relief based upon an allegation that a party was unaware of a certain action by an official is not self-proving. See generally Commonwealth v. Rippin, 49 Pa. Commw. 479, 480, 411 A. 2d 1268, 1269 (1980). A certain burden rests upon such a claimant to support the allegation with credible evidence. In the present case, the evidence tended to show (1) that the master had complied with the Rules of Civil Procedure to the extent that he was able with regard to notice of the master's report, (2) that the Defendant had breached his duty to apprise the master of his current address, and (3) that Defendant had in fact been aware of the filing of the master's report. Under these circumstances, the court does not believe that it has been put in a position to accept Defendant's contention that he was deprived of a right to file exceptions to the master's report due to a lack of notice. Finally, it would seem that the proper procedure to challenge an interlocutory matter in a case where a final decree has been entered would be to petition to vacate the decree, based on the prior irregularity. See, e.g., Teriberry v. Teriberry, 310 Pa. Super. 54, 232 A.2d 201 (1967) (petition to vacate divorce decree based upon alleged irregularities in master's process). No authority has been found for the proposition that, in a divorce case where final decrees have been entered and no appeal taken, a court may order a re-litigation of the merits of the master's report, in the absence of a petition to open the case by vacating the decree. For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this 31~t day of July, 2000, upon consideration of Defendant's Petition To File Exceptions to Master's Report Nunc pro Tunc, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Constance P. Brunt, Esquire Beaufort Professional Center 1820 Linglestown Road Harrisburg, PA 17110-3339 Attorney for Plaintiff Karl E. Rominger, Esquire Rominger Law Offices 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant