Sweeney, T. v. Sweeney, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TAMARA J. SWEENEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THOMAS J. SWEENEY AND ALBERT : No. 3095 EDA 2018
C. OEHRLE, :
:
Intervenor :
Appeal from the Judgment Entered October 17, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2012-11558
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 19, 2019
Appellant Tamara J. Sweeney appeals from the judgment in the nature
of a charging lien against real property entered in favor of Albert C. Oehrle,
Esq., in the amount of $32,042. Appellant raises various challenges to
Attorney Oehrle’s entitlement to a charging lien. We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant filed a divorce complaint against her husband, Thomas J. Sweeney,
on May 7, 2012. Attorney Oehrle, the third of four attorneys to represent
Appellant, entered his appearance on May 20, 2013. Thereafter, Attorney
Oehrle represented Appellant in the proceedings before the trial court and
Master. On August 29, 2014, the Master issued his report and
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* Retired Senior Judge assigned to the Superior Court.
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recommendation on equitable distribution, alimony, counsel fees and costs.
On September 16, 2014, Attorney Oehrle filed exceptions to the Master’s
report on Appellant’s behalf.
Before the trial court ruled on Appellant’s exceptions, Attorney Oehrle
filed a petition to withdraw as counsel on October 3, 2014. In the petition,
Attorney Oehrle claimed that he had “irreconcilable differences” with
Appellant, making it “impossible or impracticable” for him to continue
representation. Pet. for Leave to Withdraw, 10/3/14. On November 12, 2014,
the trial court granted Attorney Oehrle’s petition. Attorney Oehrle formally
filed a withdrawal of appearance on November 13, 2014.
On December 19, 2014, Attorney Oehrle filed an emergency petition for
a charging lien, claiming that Appellant owed an outstanding balance of
$38,342 pursuant to the parties’ fee and representation agreements. On
March 11, 2015, the trial court deferred consideration of Attorney Oehrle’s
emergency pending its resolution of the equitable distribution exceptions.
Attorney Oehrle filed an application for clarification or reconsideration on
March 31, 2015. The trial court denied Attorney Oehrle’s application on May
18, 2015, noting that it would “schedule a hearing regarding [Attorney]
Oehrle’s request for a charging lien” after the resolution of the equitable
distribution issues. Order, 5/18/15.
On June 18, 2015, the trial court issued the divorce decree and entered
a final equitable distribution order. Appellant timely filed a pro se notice of
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appeal on July 13, 2015.1 On August 30, 2016, this Court affirmed the divorce
decree and equitable distribution order. See Sweeney v. Sweeney, 2164
EDA 2015 (Pa. Super. filed Aug. 30, 2016) (unpublished mem.).
The parties took no further action until February 7, 2017, when Attorney
Oehrle filed a petition to intervene and enforce a charging lien. Appellant filed
a pro se objection on June 22, 2017. The trial court conducted hearings on
the matter on September 6, 2017, and December 21, 2017, where Appellant
continued to represent herself. On December 26, 2017, the trial court granted
Attorney Oehrle’s petition to intervene, concluding that Attorney Oehrle
possessed “a legally enforceable interest in this action (i.e., the right to seek
payment of his legal fees from the equitable distribution award).” Order and
Op., 12/26/17, at 3-4.
On April 16, 2018, Attorney Oehrle filed a petition seeking an order to
assert a charging lien. Following a continuance, the trial court conducted a
hearing on September 18, 2018. On September 19, 2018, the trial court
directed the prothonotary to enter judgment in the nature of a charging lien
in favor of Attorney Oehrle and against Appellant in the amount of $32,042.
The trial court’s order also stated:
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1 On December 10, 2015, while the appeal was pending, Appellant filed a pro
se petition and affidavit for leave to proceed in forma pauperis (IFP) in the
trial court. The trial court denied Appellant’s petition on December 14, 2015,
explaining that Appellant had sufficient income and assets. The trial court
docket reveals that Appellant made no further attempts to obtain IFP status,
and she remains without IFP status for the instant appeal.
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The charging lien is a lien against the real property, located at 173
Buckwalter Road, Royersford, Pennsylvania . . . and against all
funds recovered by [Appellant] from the sale or disposition of that
property or any part thereof or interest therein.
Order, 9/19/18. On October 17, 2018, Attorney Oehrle filed a praecipe to
enter the judgment.
Also on October 17, 2018, Appellant timely filed a pro se notice of
appeal. On November 27, 2018, Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal, raising the following
issues:
1. In the order to enter judgment in the nature of a charging lien
in favor of [Attorney] Oehrle and against [Appellant], the court
offered no reason for its decision nor did it make any statement
from the bench. It is impossible for the Appellant to guess at the
court’s reasoning, thereby forcing the submission of a statement
of errors expressly conditioned upon the premise that the court
had engaged in wrongful reasoning.
2. The court is acting in bad faith by trying to indirectly invoke a
waiver argument. Appellant claims a waiver may not be invoked
because the reasons for a court’s ruling are not discernable from
the record.
3. Appellant further states that the court failed to address points
of law arguing in her favor [sic] at the initial hearing on July 11,
2013. Appellant made repeated attempts to raise sixteen (16)
arguments outlined in the [Appellant’s] response to order to show
cause and was rebuffed (cut-off) repeatedly by the Judge despite
relying on case law and codes, enumerated facts, and violations
of professional conduct by the intervenor.
4. Because the Judge pre-empted the Appellant from presenting
evidence, she violated the Rules of Evidence that governed the
hearings. This is in direct violation of 225 Pa. Code―Rules of
Evidence.
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5. Failure to consider evidence that was relevant, material,
admissible, strong, sufficient, provable, and complete
demonstrates the Judge was biased in favor of [the] opposing
party and close-minded. This is a clear violation of Canon 2 of the
PA Code of Judicial Conduct that commands impartiality.
6. In an egregious error, the court failed to consider the petition
by the intervenor seeking order to assess charging lien was
untimely. The petition was filed on April 16, 2018 while the
divorce decree and order including equitable distribution, from
which intervenor attempted to attach financial interest, was
ordered, adjudged and decreed on June 18, 2015. Thus, the
intervenor waited 2 years, 9 months, and 30 days after the final
divorce judgment was rendered to assert [the] lien after
judgment, which is proof of untimeliness.
7. Furthering the court’s attempt to silence the Appellant, the
Judge again refused to hear legal arguments and presentation of
evidence at a second hearing on September 18, 2018. Instead,
the Judge addressed only the accuracy of the billings statements
in the fee dispute case and not its overall legal merits. This is a
clear violation of Canon 3 of the PA Code of Judicial Conduct, which
requires the Judge to provide each person a full right to be heard
according to the law.
Rule 1925(b) Statement, 11/27/18, at 1-2 (citations, quotation marks, and
some capitalization omitted).
The trial court filed a Rule 1925(a) opinion on January 7, 2019. The
trial court emphasized that Appellant failed to pay for the transcription of the
notes of testimony from the September 18, 2018 hearing, “which the trial
court need[ed] to review in order to support its ruling on appeal.” Trial Ct.
Op., 1/7/19, at 2. The trial court cited Pa.R.A.P. 1911 for the proposition that
an appellant shall request and pay for all relevant transcripts, and an
appellant’s failure to take such action may result in the dismissal of the appeal.
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The trial court concluded that this Court should consider Appellant’s issues
waived due to her failure to comply with the Rule 1911.
Appellant now raises six issues for this Court’s review:
[1]. Whether the court should uphold the [trial] court’s ruling
when the presiding Judge fails to file, within 30 days, a brief
opinion of the reasons for the Order that gave rise to the
statement of errors complained of on appeal.
[2]. Whether the court is allowed to assert an untimely charging
lien.
[3]. Whether the court can assert a charging lien when a final
divorce decree and equitable distribution is issued more than
seven (7) months after an attorney withdraws representation.
[4]. Whether the court can assert a charging lien when, during
representation, an attorney failed to meet the five-prong test as
delineated in Recht v. Urban Redevelopment Authority of the
City of Clairton, [168 A.2d 134 (Pa. 1961)].
[5]. Whether the court should protect an attorney’s lien who
previously represented the client but did not contribute to the
creation of a fund of money which was not in existence at the
inception of representation.
[6]. Whether the court is allowed to assert a charging lien when
there is no positive judgment or settlement for [Appellant].
Appellant’s Brief at 6-8 (unpaginated) (some citations and capitalization
omitted).2
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2Although Appellant’s statement of questions involved presents six issues for
our review, Appellant’s argument section is divided into four parts. See
Pa.R.A.P. 2119(a) (stating that the argument shall be divided into as many
parts as there are questions to be argued).
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On appeal, Appellant initially asserts that the trial court issued an
untimely Rule 1925(a) opinion, which failed to provide any reasons in support
of the order directing the entry of judgment in the nature of a charging lien in
favor of Attorney Oehrle.3 Id. at 18. Regarding the trial court’s emphasis on
the missing transcripts, Appellant “states that she was aware of the
transcription requirement but is financially impaired and unable to meet the
document production requirement.” Id. at 19. Appellant claims that she “has
filed for [IFP] status with the [trial] court several times before but has been
denied despite [providing] supporting . . . financial . . . information.” Id.
Appellant further argues that Attorney Oehrle untimely filed his petition
seeking order to assert a charging lien, because he waited almost three years
after the entry of the divorce decree to file the petition. Id. at 20. Moreover,
Appellant contends that Attorney Oehrle is not entitled to a charging lien,
because his representation did “not generate tangible fruits of service in . . .
securing a fund out of which he seeks to be paid.” Id. at 21. Appellant
concludes that “there is no asset [upon] which to attach a lien,” and the trial
court “inappropriately entered judgment in favor” of Attorney Oehrle. Id. at
25.
Before addressing Appellant’s substantive claims, we must consider
whether Appellant has preserved any issues in this appeal. See
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3Appellant incorrectly cites Rule 1925(a)(2)(ii), governing children’s fast track
appeals, to support her assertion that the trial court untimely filed the Rule
1925(a) opinion. See Appellant’s Brief at 18.
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Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011); see also Pa.R.A.P.
1925(b)(4)(vii). The interpretation and application of Rule 1925 raise
questions of law over which the standard of review is de novo and the scope
of review is plenary. See Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d
1002, 1005 (Pa. 2010) (plurality).
Pa.R.A.P. 1925(b) provides that a judge entering an order giving
rise to a notice of appeal “may enter an order directing the
appellant to file of record in the trial court and serve on the judge
a concise statement of the errors complained of on appeal
(‘Statement’).” Rule 1925 also states that “[i]ssues not included
in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415, 719
A.2d 306 (1998), our Supreme Court held that “from this date
forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
Rule 1925. Any issues not raised in a 1925(b) statement will be
deemed waived.” Lord, 719 A.2d at 309. This Court has held
that “[o]ur Supreme Court intended the holding in Lord to operate
as a bright-line rule, such that ‘failure to comply with the minimal
requirements of Pa.R.A.P. 1925(b) will result in automatic
waiver of the issues raised.’” Greater Erie Indus. Dev. Corp.
v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super.
2014) (en banc) (emphasis in original).
U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua,
193 A.3d 994, 996-97 (Pa. Super. 2018) (some citations omitted).
Instantly, Appellant’s Rule 1925(b) statement and appellate brief do not
include the same issues. Specifically, Appellant’s Rule 1925(b) statement
asserts that (1) the trial court did not provide adequate reasons in support of
its decision; (2) the trial court acted in bad faith by trying to invoke waiver;
(3) the trial court repeatedly cut-off Appellant during the hearing; (4) the trial
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court prevented Appellant from presenting evidence; (5) the trial court
demonstrated bias; (6) Attorney Oehrle’s petition seeking an order to assert
a charging lien was untimely; and (7) the trial court deprived Appellant of an
opportunity to be heard. See Rule 1925(b) Statement at 1-2.
Although Appellant’s appellate brief includes her challenge to the
timeliness of Attorney Oehrle’s petition, she abandoned the other issues
related to the manner in which the trial court conducted the relevant
hearings.4 See Appellant’s Brief at 18-26. Instead, Appellant presents new
arguments regarding whether Attorney Oehrle satisfied the legal standards to
establish his entitlement to a charging lien. Id. As Appellant failed to preserve
these new arguments by first raising them in her Rule 1925(b) statement, we
deem the arguments waived. See Hua, 193 A.3d at 996-97.
Although Appellant’s Rule 1925(b) statement included her challenge to
the timeliness of Attorney Oehrle’s petition seeking an order to assert a
charging lien, we note that Pa.R.A.P. 2119 requires:
(a) General rule. The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively
displayed—the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.
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4 To the extent Appellant attempted to challenge the manner in which the trial
court conducted the hearings, we agree with the trial court’s determination
that Appellant’s failure to pay for the transcription of the relevant notes of
testimony inhibits our ability to engage in effective appellate review of such
claims. See Pa.R.A.P. 1911 (reiterating that an appellant’s failure to request
any transcript required may result in, among other things, dismissal of the
appeal).
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* * *
(c) Reference to record. If reference is made to the pleadings,
evidence, charge, opinion or order, or any other matter appearing
in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the
place in the record where the matter referred to appears (see
Pa.R.A.P. 2132).
Pa.R.A.P. 2119(a), (c).
An appellant may face waiver under Rule 2119(a) by failing to cite to
relevant case law or otherwise failing to develop issues in a meaningful fashion
capable of review. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (indicating that “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived”
(citations omitted)). Additionally, “[a]lthough the courts may liberally
construe materials filed by a pro se litigant, pro se status confers no special
benefit upon a litigant, and a court cannot be expected to become a litigant’s
counsel or find more in a written pro se submission than is fairly conveyed in
the pleading.” Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).
Instantly, Appellant’s brief contains significant defects. Regarding the
one issue preserved in her Rule 1925(b) statement, Appellant violated Rule
2119(a) by failing to cite pertinent authority or otherwise develop her issue in
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a meaningful fashion.5 See Johnson, 985 A.2d at 924. Appellant also fails
to cite to the relevant portions of the record that support her argument. See
Pa.R.A.P. 2119(c). We cannot act as Appellant’s counsel or read more into
her brief than it fairly conveys. See Blakeney, 108 A.3d at 766. Therefore,
Appellant’s challenge to the timeliness of the petition seeking an order to
assert a charging lien is waived due to her failure to comply with the briefing
requirements of the Rules of Appellate Procedure.6 See Pa.R.A.P. 2119;
Johnson, 985 A.2d at 924.
In sum, Appellant’s failure to comply with Rule 1925(b) and failure to
provide an adequate appellate brief result in the waiver of her claims on
appeal. See Johnson, 985 A.2d at 924; Hua, 193 A.3d at 996-97.
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5 Appellant cites to four cases from sister jurisdictions and no relevant
authority from Pennsylvania. We reiterate that decisions of the courts of
others states may have persuasive, but not binding, authority on this Court.
See Okeki-Henry v. Southwest Airlines, Co., 163 A.3d 1014, 1017 n.4
(Pa. Super. 2017) (stating same).
6 Even if she did not waive her claim, Appellant would not be entitled to relief.
Although Appellant suggests that Attorney Oehrle did not seek the charging
lien until after the entry of the final divorce decree, the record belies
Appellant’s claim. Attorney Oehrle first filed an emergency petition for a
charging lien on December 19, 2014, before entry of the final divorce decree.
The trial court deferred consideration of Attorney Oehrle’s emergency pending
its resolution of the equitable distribution exceptions. Issues surrounding the
equitable distribution were not resolved until after this Court affirmed the
divorce decree and equitable distribution order in 2016. Thereafter, Attorney
Oehrle filed his petition to intervene in February 2017. On this record,
Attorney Oehrle provided timely notice of his intent to pursue a charging lien.
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Accordingly, we affirm the judgment in the nature of a charging lien in favor
of Attorney Oehrle and against Appellant.7
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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7 Appellant also filed a motion to strike Attorney Oehrle’s appellate brief as
untimely filed. We note that Attorney Oehrle timely filed his brief on March
21, 2019, thirty days after Appellant filed her brief. See Pa.R.A.P. 2185(a)
(requiring that, as a general rule, an appellee shall serve and file his brief
within thirty days after service of the appellant’s brief). Therefore, we deny
Appellant’s motion to strike.
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