Kesselman, L. v. Kesselman, L. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LISA KESSELMAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LYNN N. KESSELMAN
No. 146 MDA 2017
Appeal from the Order Entered December 6, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 5791 of 2013
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 11, 2017
Appellant, Lisa Kesselman, appeals from the divorce decree entered
December 6, 2016, in the Luzerne County Court of Common Pleas. We
quash.
Appellant and Appellee, Lynn N. Kesselman, were married on
December 20, 1986. Appellant filed a complaint in divorce on May 13, 2013,
seeking alimony, alimony pendent lite (“APL”), and equitable distribution.
The court appointed Biagio V. Musto, II, Esquire, as a special master to
make recommendations on the claims for divorce and equitable distribution.
Following a series of hearings, Master Musto filed his Report and
Recommendation with the court. Appellee filed exceptions. The trial court
ruled on Appellee’s exceptions, remanding the matter back to Master Musto
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to recalculate certain numerical figures and draft a final proposed order
outlining the trial court’s findings.
On December 6, 2016, after receiving the proposed order from the
Master, the trial court filed a divorce decree, which divorced the parties
under § 3301(d) of the Divorce Code and finalized the economic issues
raised in Appellant’s divorce petition. Appellant filed exceptions to the trial
court’s decree on December 20, 2016, and then filed a motion to reconsider
the following day. Appellant filed an appeal from the December 6, 2016
divorce decree on January 18, 2017.
As a preliminary matter, we must address Appellee’s request, filed via
a “Motion to Quash Appeal as Untimely Pursuant to Pa.R.A.P. 903 and
Appellee’s Request for Sanctions Pursuant to Pa.R.A.P. 2744,”1 requesting, in
part, the dismissal of Appellant’s claims based upon her failure to file a
timely appeal. See also Appellee’s Brief, at 4-7.
The question of timeliness of an appeal is a jurisdictional issue, as an
untimely appeal divests this Court of jurisdiction to hear the merits of the
case. See Sass v. Amtrust Bank, 74 A.3d 1054, 1063 (Pa. Super. 2013).
Further, this Court will not deem a facially untimely appeal to be timely
“except under the narrowest of circumstances in which counsel for the
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1 A motions panel of this Court entered an order deferring this motion for the
disposition of the merits panel. See Order, filed 3/23/17.
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offending party can establish either a breakdown in the operations of the
judicial support system or extenuating circumstances that rendered h[er]
incapable of filing the necessary notice.” Id.
Pennsylvania law provides that parties in domestic relations matters,
including divorce proceedings, are not permitted to file post-trial motions.
See Pa.R.C.P. 1920.52(a)-(b); Pa.R.C.P. 1930.2(a). Therefore, a party’s
notice of appeal must be filed within 30 days of the entry of a domestic
relations order. See Pa.R.A.P. 903(a).
Here, the order in question was entered on December 6, 2016.
Therefore, an appeal should have been filed by January 5, 2017 in order to
be considered timely. But Appellant did not file her notice of appeal until
January 18, 2017. The appeal is blatantly untimely unless Appellant can
show “either a breakdown in the operations of the judicial support system or
extenuating circumstances that rendered h[er] incapable of filing the
necessary notice.” Sass, 74 A.3d at 1063.
Appellant attempts to do just that by asserting that the trial court
failed to provide her with a copy of the divorce decree, which delayed her
discovery of the decree until December 20, 2016. The notice on the trial
court docket, see Pa.R.C.P. 236(b), indicates the Prothonotary mailed the
decree to the parties on December 7, 2016. Despite that, even if we accept
Appellant’s allegation that the judicial support system somehow broke down
and prevented Appellant from learning of the decree until December 20,
2016, that still left sixteen days in which Appellant could have filed a timely
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notice of appeal. Appellant failed to do so. Instead, Appellant filed a notice of
appeal from the divorce decree on January 18, 2017—thirteen days after the
appeal period lapsed. Given this, we cannot find that a breakdown of the
judicial system or extenuating circumstances prevented Appellant from filing
a timely notice of appeal.
Accordingly, we are without jurisdiction to address Appellant’s claims
and agree with Appellee that the appeal must be quashed. We deny
Appellee’s Request for Sanctions Pursuant to Pa.R.A.P. 2744.
Appeal quashed. Motion granted in part and denied in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
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