Contreras, M. v. Contreras, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARIO CONTRERAS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBIN CONTRERAS, :
:
Appellant : No. 2334 EDA 2014
Appeal from the Order Entered March 10, 2014
In the Court of Common Pleas of Monroe County
Civil Division No(s).: 620 DR 2003 & 1102 CV 2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2015
Appellant, Robin Contreras (“Wife”) appeals pro se from the order
entered in the Monroe County Court of Common Pleas denying her petition
to vacate the divorce decree.1 We hold Appellant’s notice of appeal was
timely filed, but find all of her eighteen issues waived for failure to comply
with the court’s order to file a Pa.R.A.P. 1925(b) statement and failure to
provide sufficient discussion and legal analysis in her appellate brief.
Accordingly, we affirm.
The trial docket indicates Appellee, Mario Contreras (“Husband”), filed
*
Former Justice specially assigned to the Superior Court.
1
Wife’s pro se petition was entitled “Petition to Throw Out/Overturn Divorce
Decree Dated June 21, 2013.”
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a divorce complaint on February 6, 2013.2 The docket further indicates Wife
did not file an answer. On June 21, 2013, the court issued a divorce decree.
On July 22, 2013, Wife filed the underlying pro se “Petition to Throw
Out/Overturn Divorce Decree Dated June 21, 2013.”3 On March 10, 2014,
the trial court denied the petition.4 Wife filed a notice of appeal, which was
2
The certified record does not include the divorce complaint; instead, the
earliest filing is a May 3, 2013 “Praecipe to Transmit Record.”
Husband’s counseled brief alleges the following procedural history:
Previous divorce proceedings between the two parties
go all the way back to 2003 as noted by the DR docket
number in the caption at the Common Pleas court level.
[Wife] then filed for divorce in Monroe County in 2004,
docketed at 9044 CV 2004. [Wife] let this action lapse and
the case was dismissed.
She then brought a divorce action in Lancaster County
on November 16, 2010. Though apparently obtaining
personal jurisdiction over [Husband] sufficient for an
Alimony Pendente Lite award, [Husband] was never served
with the divorce complaint.[ ] As late as January 17, 2014
the docket entries from Lancaster County show that a
Praecipe to Reinstate was filed. [Wife] took no other
action on her complaint. [Husband] filed [the instant]
divorce in Monroe County . . . and [Wife] did not respond
until after the Decree in divorce was entered.
Husband’s Brief at 2.
3
The parties had thirty days from the issuance of the divorce decree to
move to open it. See 23 Pa.C.S. § 3332; 42 Pa.C.S. § 5505. The thirtieth
day after June 21, 2013, was Sunday, July 21, 2013. Wife’s filing on
Monday, July 22nd was timely. See 1 Pa.C.S. § 1908.
4
An order issued February 3, 2014 indicated a hearing was held on that day.
Order, 2/3/14 (“[B]oth parties are granted 10 days from the date of this
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not docketed until July 3, 2014. On August 26, 2014, the court issued an
order directing Wife to file, within twenty-one days, a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Wife did not file such a
statement.
We first consider the trial court’s suggestion that this appeal should be
quashed for an untimely notice of appeal. We first state the general rule
under Pennsylvania Rule of Appellate Procedure 903(a) that “the notice of
appeal . . . shall be filed within 30 days after the entry of the order from
which the appeal is taken.” Pa.R.A.P. 903(a).
In the case sub judice, the underlying order was filed on March 10,
2014. The thirtieth day thereafter, and thus the deadline for taking an
appeal, was April 9th. See id. The trial court aptly noted:
[Appellant’s notice of appeal] was initially date-stamped by
our Prothonotary on April 9, 2014. However, the date
stamp was crossed out with the notation “No Payment
GJW.” GJW are the initials of George J. Warden, the
Prothonotary and Clerk of this Court.
Trial Ct. Op., 9/22/14, at 4. The court stated this notice of appeal “was not
accepted for filing because [Wife], who has neither applied for nor been
granted in forma pauperis status, did not pay the required filing fee.” Id.
Instead, the notice of appeal was returned to Wife. The court then
reasoned: (1) this filing was defective for failure to pay the filing fee and
Order and today’s hearing . . . to file any supplemental filings or evidence
that pertains to the jurisdictional issues raised by [W]ife.”).
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failure to serve a copy on the court; and (2) “[a] defective attempt to file a
notice of appeal does not and should not be deemed to commence an appeal
or preserve appeal rights or issues.” Id. at 4, 5.
The trial court stated Wife subsequently filed, on July 3, 2014, the
same notice of appeal, which bore the crossed-out April 9th filing stamp.
The court reasoned, however, this latter filing was also “defective in that
[Wife] failed to serve the July 3, 2014 Notice of appeal on either the [trial
court] or counsel for” Husband. Id. at 5.
Rule 902, “Manner of Taking Appeal,” states:
An appeal permitted by law as of right from a lower
court to an appellate court shall be taken by filing a notice
of appeal with the clerk of the lower court within the time
allowed by Rule 903 (time for appeal). Failure of an
appellant to take any step other than the timely
filing of a notice of appeal does not affect the
validity of the appeal, but it is subject to such action as
the appellate court deems appropriate, which may include,
but is not limited to, remand of the matter to the lower
court so that the omitted procedural step may be taken.
Pa.R.A.P. 902 (emphasis added).
Rule 905(a) provides in pertinent part: “Upon receipt of the notice of
appeal the clerk shall immediately stamp it with the date of receipt, and that
date shall constitute the date when the appeal was taken, which date shall
be shown on the docket.” Pa.R.A.P. 905(a)(3). Rule 905(c) states: “The
appellant upon filing the notice of appeal shall pay any fees therefor . . . .”
Pa.R.A.P. 905(c).
Rule 906 requires: “Concurrently with the filing of the notice of appeal
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under Rule 905 (filing of notice of appeal), the appellant shall serve copies
thereof, and of any order for transcript, and copies of a proof of service
showing compliance with this rule, upon:” all parties, the trial judge, the
court reporter, and “[t]he district court administrator or other person
designated by the administrator.” Pa.R.A.P. 906(a)(1)-(4).
Reading the above rules together, we respectfully disagree with the
trial court that Wife’s failure to concomitantly pay a filing fee resulted in an
invalid notice of appeal. Although the Rules of Appellate Procedure require a
filing fee for a notice of appeal, Rule 902 clearly states the “failure of an
appellant to take any step other than the timely filing of a notice of appeal
does not affect the validity of the appeal.” See Pa.R.A.P. 902, 905(c).
Instead, any error may be subject to action by the appellate court, including
remand to allow the appellant to correct the error. Id. Furthermore, the
phrasing of Rule 905(c) contemplates the “filing” of the notice of appeal and
payment of fees to be distinct. See Pa.R.A.P. 905(c) (“The appellant upon
filing the notice of appeal shall pay any fees therefor . . . .”). We likewise
find Wife’s failure to serve the trial judge was not fatal to her filing of the
notice of appeal.5 See Pa.R.A.P. 906(a)(2). We thus hold Wife’s notice of
appeal was timely filed on April 9, 2014, and the court clerk erred in not
5
In concluding Wife’s initial, April 9, 2014, filing of the notice of appeal was
defective, the trial court also cited her “wait[ing] until the final day of the
appeal period before making her defective attempt to file an appeal.” Trial
Ct. Op. at 4. We, however, find no authority that a filing on the last day of a
permissible filing period is in any way deficient.
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docketing it on the same day. See Pa.R.A.P. 903(a), 905(a)(3).
Accordingly, we do not quash.
We do, however, find all issues waived for Wife’s failure to comply with
the court’s order to file a Pa.R.A.P. 1925(b) statement. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); In re
Estate of Boyle, 77 A.3d 674, (Pa. Super. 2013) (stating failure to comply
with minimal requirements of Pa.R.A.P. 1925(b) will result in automatic
waiver of issues raised on appeal).
We further find Wife’s issues waived for failure to develop them, cite
relevant authority, and provide meaningful legal analysis. See Pa.R.A.P.
2119. Although Wife’s statement of questions raises eighteen issues, her
one-page argument section is divided into four paragraphs.6 Wife’s Brief at
8; see Pa.R.A.P. 2119(a) (requiring argument section to be divided into as
many parts as there are questions to be argued). Although Wife provides
citations of Pennsylvania statutes and court decisions, she sets forth no
discussion of what those authorities state or how they apply in the case sub
judice.
6
This section is entitled “Summary of Argument”; Wife’s brief does not
include an “Argument” section. See Pa.R.A.P. 2118, 2119. The four issues
stated are: Husband’s alleged “perjury” in stating whether he lived in New
York or Pennsylvania, Husband’s improper divorce filing where she filed for
divorce in Lancaster County in November 2010, “indigent/destitute and
equitable distribution,” under which Wife argues a need for alimony, and
court error in failing to swear-in her and Husband. Wife’s Brief at 8.
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Finding all of Wife’s issues waived, we affirm the order of the trial
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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