Link, C. v. Link, D. ( 2015 )

J-A01041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTOPHER R. LINK AND IN THE SUPERIOR COURT OF
HEATHER A. LINK, PENNSYLVANIA
Appellants
v.
DENNIS LINK, INDIVIDUALLY AND AS
CUSTODIAN FOR CHRISTOPHER R. LINK
AND HEATHER A. LINK, PURSUANT TO
THE PENNSYLVANIA UNIFORM GIFT TO
MINORS ACT,
Appellee No. 738 WDA 2014
v.
ELISABETH LINK,
Appellee
Appeal from the Decrees entered February 11, 2014 and April 14, 2014,
in the Court of Common Pleas of Beaver County,
Orphans' Court, at No(s): 04-02-435A
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 4, 2015
Christopher R. Link and Heather A. Link, (“Appellants”), appeal from
the trial court’s decrees dismissing their Petition for Accounting of Custodial
Accounts and for Turnover of Funds Removed from Custodial Accounts, and
Motion for Post-Trial Relief. We affirm.
Our review of the record reveals the following: Respondent Dennis
Link (“Father”), is the father of Appellants. Additional respondent Elisabeth
Link, now known as Elisabeth Pflugh (“Mother”), is the mother of Appellants.
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Father and Mother separated in 1994 and were divorced in 2001. N.T.,
5/20/13, at 21, 23. Appellant Christopher Link was born on February 20,
1976, and turned 18 on February 20, 1994. N.T., 5/20/13, at 21.
Appellant Christopher Link testified that his parents’ divorce was
“contentious”, and that he authorized Mother to represent him in domestic
relations proceedings to collect college tuition from Father. Id. at 22.
Appellant Christopher Link has not spoken to Father since 2001. Id. at 23.
It is undisputed that on or about 1979, Father opened Uniform Gift to
Minor Accounts (“UGMA”) for Appellants. See id. at 98-100, 104. Appellant
Christopher Link learned about the UGMA accounts from his sisters and his
Mother “somewhere between May and August” of 2001. Id. at 24-25. In
August of 1994, Father paid for a “very small portion”, approximately
$1,300, of Appellant Christopher Link’s college tuition at Robert Morris from
one of the UGMA accounts. Id. at 30, 32.
Appellant Heather Link was born on April 2, 1979, and turned 21 on
April 29, 2000. Id. at 33. Ms. Link described learning about the UGMA
accounts in the fall of 2000:
In the fall of 2000 I was accepted to Columbia University,
and I went to meet with [Father] to ask him if he would help me
pay for tuition. He told me that he couldn’t, because he was
poor and had no money.
I then went back and talked to my mom and she told me
that, you know, there was a college account for us, and then
when I asked him about it he told me that I didn’t earn the
money and I didn’t deserve it.
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Id. at 34. Ms. Link never received any money from an UGMA account. Id.
at 35. Ms. Link also testified that she knew about the UGMA account in
February of 1999. Id. at 41.
Father testified to opening UGMA accounts for his children. He stated
that the “accounts were withdrawn from and then put into other accounts.”
Id. at 45. He testified that the money was not given to Appellants
Christopher and Heather Link, and “neither did I take possession of it.” Id.
Father explained that the money was used to pay “taxes and to buy cars for
the family, family expenses.” Id. at 46. Father testified that by the end of
1994, there was no money left in the UGMA accounts and they had “a zero
balance.” Id. at 95-96.
Mother testified that her divorce from Father lasted six and a half
years from 1994 through 2001. Id. at 65. Mother learned of the UGMA
accounts in 1994. Id. at 67-68. Mother testified that Father told her that
he was saving for their children’s education; she stated she was “sure”
Father told the children this. Id. at 68. Mother said that she “didn’t know
anything about the UGMA accounts.” Id. at 73.
Appellants filed their Petition for Accounting of Custodial Accounts and
for Turnover of Funds Removed from Custodial Accounts on April 11, 2002.
Docket activity continued until November 13, 2003, with a two and a half
year lapse in activity through May 15, 2006, and another nearly two year
lapse until March 24, 2008, when an entry of appearance was entered on
behalf of Appellants. The trial court explained:
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[Appellants] first filed a Certificate of Readiness for Trial on
September 18, 2012. Hearing on the Petition was convened on
May 20, 2013, over eleven (11) years after the Petition was
filed.
Trial Court Memorandum Opinion and Decree, 2/11/14, at 1. On February
11, 2014, the trial court entered a decree dismissing Appellants’ petition “for
the reasons set forth in the foregoing Memorandum Opinion.” Within the
Memorandum Opinion, the trial court based its dismissal on “all three (3)
grounds raised by [Father’s] pleadings as discussed herein”, i.e., 1.) the
statute of limitations; 2.) the doctrine of laches; and 3.) the equitable
remedy of non pros.
Appellants filed a motion for post-trial relief on February 21, 2014.
The trial court scheduled argument for April 11, 2014, and on April 14, 2014,
entered a decree denying Appellants’ motion. Appellants filed a timely
appeal and statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellants raise three issues:
I. Whether the trial court erred in entering its February 11
and April 14, 2014 Decrees by ruling that the petitioners’ action
was barred by the statute of limitations.
II. Whether the trial court erred in entering its February 11
and April 14, 2014 Decrees by ruling that the petitioners’ action
was barred by the doctrine of laches.
III. Whether the trial court erred in entering its February 11
and April 14, 2014 Decrees by ruling that the petitioners’ action
was barred by the equitable remedy of non pros.
Appellants’ Brief at 5.
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Upon review, and with regard to Appellants’ third issue concerning non
pros, we find that the record supports the trial court’s entry of non pros, and
therefore affirm the trial court on this basis. See, e.g., Cid v. Erie Ins.
Group, 63 A.3d 787, 791 (Pa. Super. 2013) (“we may affirm on any basis”).
On February 21, 2014, after entry of the trial court’s February 11,
2014 decree, Appellants filed their post-trial motion challenging, inter alia,
the entry of non-pros. Appellants did not specifically reference Pa.R.C.P.
3051, which provides:
Rule 3051. Relief from Judgment of Non Pros
(a) Relief from a judgment of non pros shall be sought by
petition. All grounds for relief, whether to strike off the judgment
or to open it, must be asserted in a single petition.
(b) Except as provided in subdivision (c), if the relief sought
includes the opening of the judgment, the petition shall allege
facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse
for the conduct that gave rise to the entry of judgment of
non pros, and
(3) there is a meritorious cause of action.
***
(c) If the relief sought includes the opening of the judgment of
non pros for inactivity, the petition shall allege facts showing
that
Note: The “inactivity” covered by this subdivision is
governed by and subject to Jacobs v. Halloran, 551 Pa.
350, 710 A.2d 1098 (1998).
(1) the petition is timely filed,
(2) there is a meritorious cause of action, and
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(3) the record of the proceedings granting the judgment of non
pros does not support a finding that the following requirements
for entry of a judgment of non pros for inactivity have been
satisfied:
(i) there has been a lack of due diligence on the part of the
plaintiff for failure to proceed with reasonable promptitude,
(ii) the plaintiff has failed to show a compelling reason for
the delay, and
(iii) the delay has caused actual prejudice to the
defendant.
Pa.R.C.P. 3051(a)-(c).
We recently explained:
A request to open a judgment of non pros . . . is in the
nature of an appeal to the equitable powers of the court and, in
order for the judgment of non pros to be opened, a three-
pronged test must be satisfied: 1) the petition to open must be
promptly filed; 2) the default or delay must be reasonably
explained or excused; and 3) facts must be shown to exist that
support a cause of action. Madrid v. Alpine Mountain Corp., 24
A.3d 380, 381 (Pa. Super.2011) (citation omitted); Pa.R.C.P.
3051. A petition under Pa.R.C.P. 3051 is the only means by
which relief from a judgment of non pros may be sought. Id.;
Pa.R.C.P. 3051, Comment. “Any appeal related to a judgment of
non pros lies not from the judgment itself, but from the denial of
a petition to open or strike.” Madrid, 24 A.3d at 381–382
(citation omitted). The “failure to file a timely or rule-compliant
petition to open operates as a waiver of any right to address
issues concerning the underlying judgment of non pros.” Id. at
382. Finally, a trial court's decision to deny a petition to open or
strike a judgment of non pros is reviewed pursuant to an abuse
of discretion standard. Id. (citation omitted).
See Bartolomeo v. Marshall, 69 A.3d 610, 613-614 (Pa. Super. 2013).
Assuming arguendo that Appellants’ motion for post-trial relief was a
de facto Rule 3051 petition, our review indicates that it was promptly filed,
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but did not meet the second prong of Rule 3051(b) where the default or
delay must be reasonably explained or excused. Rather, the essence of
Appellants’ argument was that by not requesting non pros until November of
2012, Father “ha[d] unclean hands as to the application for judgment [of]
non pros, having filed for such too late, to the prejudice of [Appellants].”
Post-Trial Motion, 2/21/14, at 15 (unnumbered). In support of this
argument, Appellants cited one Commonwealth Court and one Third Circuit
decision. See Commonwealth v. Thomas, 814 A.2d 754, 758 (Pa. Super.
2002) (Superior Court not bound by the decisions of the Commonwealth
Court); Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa. Super. 2002)
(“federal court decisions do not control the determinations of the Superior
Court”).
Furthermore, we review a trial court's decision to deny a petition to
open or strike a judgment of non pros “pursuant to an abuse of discretion
standard.” Bartolomeo, 69 A.3d at 614. In their appellate brief, Appellants
contest the trial court’s determination that Father suffered prejudice, and
assert that “Father’s own delay precluded the application of the remedy of
non pros.” Appellants’ Brief at 23-27.
With regard to its determination that Father suffered prejudice, the
trial court referenced the record and explained:
[Father] has also filed a Petition for Non Pros for the
[Appellants’] failure to prosecute their Petition in a timely
fashion. [Father] cites as authority for his position the case of
Jacobs v. Halloran, 551 Pa. 350, 357, 710 A.2d 1098, 1103
(1998), wherein the Supreme Court of Pennsylvania stated,
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“To dismiss a case for inactivity pursuant to a defendant’s
motion for non pros, there must first be a lack of due
diligence on the part of the plaintiff in failing to proceed
with reasonable promptitude. Second, the plaintiff must
have no compelling reason for the delay. Finally, the delay
must cause actual prejudice to the defendant.”
In the case at hand, this Petition was filed on April 11, 2002, and
the hearing date was not set for the first time until March, 2013,
almost eleven (11) years after the Petition was filed and
nineteen (19) years after the accounts were closed with the full
knowledge of the primary Custodian and Guardian of
[Appellants]. If the docket and the Hearing Transcript do not
establish anything else, they do make it crystal clear that both
[Appellants] displayed a “lack of due diligence in failing to
proceed with reasonable promptitude”. A review of the docket,
as noted in and attached to [Father’s] Petition, reveals that
nearly the entire delay was attributable to [Appellants’] failure to
prosecute their claims. By way of example, [Appellants] did not
file an Answer to [Father’]s Preliminary Objections for a period of
two (2) years; between November, 2003 and March, 2008, a
period of four and one-half (4½) years, the only docket activity
to take place was the filing of a Request for Admissions by
[Appellants] and a timely response to the same by [Father] in
2006; and, following denial of [Appellants’] Motion for Summary
Judgment, twenty (20) months elapsed before [Appellants] filed
their Certificate of Readiness for Trial on the Petition. In the
face of this extended delay, [Appellants] offered no
compelling reason for their delay. It was abundantly clear at
the hearing on May 20, 2013 that neither [Appellants] nor
[Father] had gathered any admissible evidence which was not
otherwise in their possession since 2001.
Finally, [Father] did establish actual prejudice resulting
from [Appellants’] delay. As noted in the Motion for Non Pros,
the attorney who represented [Mother] in the divorce action
passed away in 2009, denying all parties the opportunity to call
her as a witness to the events occurring between 1994 and
2001. Furthermore, neither [Father], [Mother] nor [Appellants]
were able to produce records from Kemper nor accounting
records of the Custodian which were in the marital residence
after separation of the parties in 1994. The delay in pursuing
the cause of action, and even more so, the delay in prosecuting
their claims with reasonable promptitude, caused actual
prejudice to [Father].
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Those delays also hamper this Court’s ability to award any
relief to [Appellants]. The Decree [Appellants] seek is
unenforceable when one considers that counsel for [Appellants]
acknowledged on the record, as did counsel for [Father], their
mutual inability to provide records and an accounting of financial
activities that took place between 19 and 34 years ago. The
actions of [Father] between 1979 and 1994 were reprehensible
at the very least, but because of delays since 1994 which were
not of his making, his activities as Custodian are not deemed
actionable at this time.
Trial Court Memorandum Opinion and Decree, 2/11/14, at 8-10
(unnumbered, emphasis added). Upon review, we find no abuse of
discretion in the trial court’s determination.
As to Appellants’ argument regarding Father’s delay in seeking non
pros, Appellants continue to rely on Commonwealth Court and federal court
decisions which are not binding on this Court. Thomas, supra; Werner,
supra.Given the foregoing, we conclude that even had Appellants fully
complied with Pa.R.C.P. 3051, the trial court did not abuse its discretion in
entering non pros. We therefore affirm the trial court.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2015
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