HomeMy WebLinkAbout1052 S 2000SARAH E. HEITZMAN-NOLTE,:
Plaintiff
Vo
CARL R. NOLTE,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOMESTIC RELATIONS SECTION
PACSES NO. 987102896
NO. 00-1052 SUPPORT
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 22, 2004.
IN this bitterly litigated support case, the docket entries now extend to 16 pages.
IN one aspect of the litigation, a petition for allowance of appeal is presently pending in
the Pennsylvania Supreme Court (on the issue of whether the father should be made to
contribute to the support of the parties' child during his college education).
Plaintiff mother has now placed a second aspect of the case in the Superior Court
by appealing, without permission, an interlocutory order denying a motion to quash two
subpoenas. This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff Sarah E. Heitzman-Nolte and Defendant Carl R. Nolte are the parents of
Andrew J. Nolte, born August 8, 1984.~ Andrew became eighteen on August 8, 2002,
and attends Messiah College in Grantham, Pennsylvania, on a full scholarship.2
On June 24, 2002, following a hearing before the Cumberland County Support
Master, an order was entered in which Defendant father was obligated to pay spousal
support in the amount of $438.00 per month and child support, for Andrew, in the amount
~ N.T. 3, Supp. Master hr'g, Oct. 15, 2002 (hereinafter N.T.
Recommendations, filed Oct. 22, 2002, paras. 1-4.
: N.T. 29, 41-43.
~; Supp.
Master's Report and
of $778.00 per month.3 On August 2, 2002, Plaintiff mother filed a petition to continue
Defendant father's child support obligation beyond Andrew's eighteenth birthday.4
The Cumberland County Support Master, and subsequently this court on
exceptions to the master's report, declined to grant the petition.5 On November 17, 2003,
the Pennsylvania Superior Court reversed the decision of this court, and remanded for
entry of an order reinstating Defendant's child support obligation.6 Defendant father's
petition for allowance of appeal from the Superior Court's order is presently pending in
the Pennsylvania Supreme Court.
As directed by the Superior Court, this court reinstated Defendant's child support
obligation, with an effective date of August 8, 2002.7 To reduce arrearages caused by the
retroactive aspect of this reinstatement, the court also directed that Defendant pay an
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additional $50.00 per month on arrears.
Plaintiff mother immediately filed a motion to accelerate the payments on
arrearages.9 This motion was referred by the court to the Domestic Relations Office for
proceedings in accordance with local practice pursuant to Pennsylvania Rules of Civil
Procedure 1910.1 l(a)-(d) (office conference) and 1910.12 (hearing).~°
Several days prior to the scheduled Domestic Relations Office conference, the
subject matter of which also included a petition for modification filed by Defendant
father, ~ the undersigned judge received a motion filed by Plaintiff mother requesting that
3 The Support Master determined that the net monthly incomes of Plaintiff mother and Defendant father
are, respectively, $1,787.49 and $3,992.47. Supp. Master's Report and Recommendations, filed Oct. 22,
2002, para. 7.
4 N.T. 2-3.
5 Supp. Master's Report and Recommendations, filed Oct. 22, 2002; Opinion and Order of Court, April 4,
2003.
6 Heitzman-Nolte v. Nolte, 2003 PA Super. 435,837 A.2d 1182 (2003).
v Order of Court, December 29, 2003.
8Id.
9 Plaintiff's Motion To Accelerate Arrears Payment and for Other Relief, filed January 14, 2004.
l0 Order of Court, January 28, 2004.
~ See Defendant's Motion for Stay, para. 3, filed March 12, 2004; Order of Court, March 11, 2004.
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subpoenas duces tecum served by Defendant father be quashed.~2 The subpoenas
directed that certain financial information be brought by Plaintiff and the parties' son to
the conference.~3 The motion, inter alia, argued that a domestic relations office
conference was not a proper forum for a subpoenaTM and demanded a court hearing on the
issue of whether the subpoenas should be quashed. ~5
Given the limited amount of time available to consider the motion prior to the
conference, the court attempted to schedule a conference with counsel to discuss the
motion.~6 However, when schedules could not be coordinated for this purpose,~7 the
court issued an order on May 4, 2004, declining to quash the subpoenas for the May 5,
2004, conference.~8
Two days following the conference, Plaintiff's counsel filed a motion demanding
that the court reconsider its order refusing to quash the subpoenas.~9 This motion
contained no suggestion that the issue had not been mooted by the occurrence of the
conference to which the subpoenas pertained, and reconsideration of the court's earlier
order was denied on that basis.2°
On May 14, 2004, as a result of a recommendation of the conference officer, this
court entered an interim order which, inter alia, increased Defendant's arrearage
payments to $495.00 per month.~ Plaintiff mother has filed an appeal from this order to
~2 Plaintiff's Motion To Quash Subpoenas Pursuant to Pa. R.C.P. 234.4, filed April 19, 2003.
~3 See id.
~4 Id., para. 9.
~5 Id., para. 10.
~6 See Order of Court, May 4, 2004.
~7 ]d'
~8 Order of Court, May 4, 2004.
19 Plaintiff's Motion for Reconsideration of Order Denying Motion To Quash Subpoenas, filed May 7,
2004.
20 Order of Court, May 14, 2004.
2~ Id.
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the Cumberland County Support Master, citing "[e]rrors on the part of the conference
officer.''22
On May 25, 2004, Plaintiff mother filed an appeal to the Pennsylvania Superior
Court from this court's interlocutory order of May 4, 2004, declining to quash the
subpoenas procured by Defendant for the May 5, 2004, Domestic Relations Office
conference.23 As may be inferred from the preceding recitation of facts, the order
appealed from did not contain a statement that, in this court's opinion, the order
"involve[d] a controlling question of law as to which there [was] substantial ground for
difference of opinion and that an immediate appeal from the order [might] materially
advance the ultimate termination of the matter,''24 nor was any request made by Plaintiff's
counsel that the order be amended to include such a statement.
DISCUSSION
Interlocutory appeals. In general, appeals from orders of lower courts in
Pennsylvania lie from final orders as opposed to interlocutory orders. See Pa. R.A.P.
341. An exception to this general rule is set forth in Pennsylvania Rules of Appellate
Procedure 312 and 131 l(a). The latter reads, in pertinent part, as follows:
An appeal may be taken by permission under 42 Pa.C.S. § 702(b)
(interlocutory appeals by permission) from any interlocutory order of
a lower court .... See Rule 312 (interlocutory appeals by
permission).
Section 702(b) of the Judicial Code, referred to in Rule 1311(a), provides as
follows:
When a court..., in making an interlocutory order in a matter in
which its final order would be within the jurisdiction of an appellate
court, shall be of the opinion that such 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, it shall so
Plaintiff's Demand for Hearing, filed May 24, 2004.
Plaintiff's Notice of Appeal, filed May 25, 2004.
See Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §702(b); Pa. R.A.P. 312, 1311.
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state in such order. The appellate court may thereupon, in its
discretion, permit an appeal to be taken from such interlocutory order.
Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §702(b).
The main reason for proscribing interlocutory appeals is judicial economy. See
Schaffer v. Litton Systems, Inc., 372 Pa. Super. 123, 125, 539 A.2d 360, 361 (1988).
Every appeal takes its toll in terms of judicial resources, both in the lower court and the
appellate court. However, the rule also serves to discourage tactics in litigation intended
to overwhelm an opposing party with the expense and delay inherent in separate appellate
litigation of intermediate matters of little consequence.
In the present case, Plaintiff's appeal appears to be clearly encompassed by the
general rule against interlocutory appeals.
Doctrine of Mootness. "An issue before a court is moot if in ruling upon the issue
the court cannot enter an order that has any legal force or effect." In re D.A., 801 A.2d
614, 616 (Pa. Super. Ct. 2002), quoting Johnson v. Martofel, 797 A.2d 943, 946 (Pa.
Super. Ct. 2002). Under Pennsylvania Rule of Civil Procedure 1910.12, which contains
the procedure adopted by Cumberland County in support matters, the hearing conducted
by the support master is de novo with respect to the Domestic Relations Office
conference which preceded it. Where, as in this case, Plaintiff has taken advantage of her
right to obtain such a de novo hearing, it would appear that the issue of the validity of a
subpoena at the prior proceeding, not of record and no longer of any permanent effect,
would be moot.
Subpoenas duces tecum. Under Pennsylvania Rule of Civil Procedure 234.1
(Subpoena to Attend and Testify), "[a] subpoena is an order of the court commanding a
person to attend and testify at a particular time and place. It may also require the person
to produce documents or things which are under the possession, custody or control of that
person." Under Rule 234. l(b), it is provided that "[a] subpoena may be used to command
a person to attend and to produce documents or things only at
(1) a trial or hearing in an action or proceeding pending in the
COUrt, or
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(2) the taking of a deposition in an action or proceeding pending
in the court."
Pennsylvania Rule of Civil Procedure 126 provides as follows with respect to
construction and application of the Rules:
The rules shall be liberally construed to secure the just, speedy
and inexpensive determination of every action or proceeding to which
they are applicable. The court at every stage of any such action or
proceeding may disregard any error or deject of procedure which
does not affect the substantial rights of the parties.
Pa. R.C.P. 126 (emphasis added).
In the present case, with respect to the merits of the court's ruling on the validity
of the subpoenas duces tecum procured by Defendant, several factors tended to militate
against issuing a quashal. First, the issue before the conference officer of"acceleration of
arrearages" was sufficiently unusual as to implicate more factors than are involved in
establishing a routine basic support obligation under the support guidelines; additional
financial information from the affected parties could only serve to facilitate the process of
review by the conference officer. Second, the position of Plaintiff that such a conference
was not a proper forum for a subpoena was dependent upon a narrow construction of the
proceedings encompassed by Pennsylvania Rule of Civil Procedure 234. l(b)(1). Third,
the circumstances suggested that a less technical application of the Rule in this instance
would not affect the substantial rights of the parties and would tend to promote a just,
speedy and inexpensive determination of the conference issue.
For the foregoing reasons, it is believed that Plaintiff's position on appeal with
respect to this court's refusal to quash the subpoenas duces tecum as they related to the
May 5, 2004, Domestic Relations Office conference can not be sustained.
BY THE COURT,
J. Wesley Oler, Jr., J.
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Michael R. Rundle, Esq.
Cumberland County Support Master
Theresa Barrett Male, Esq.
513 North Second Street
Harrisburg, PA 17101
Attorney for Plaintiff
Jacqueline Vemey, Esq.
44 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
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