Shultz, A., III v. Shultz, F. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
ALLEN L. SHULTZ, III : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
FAITH E. SHULTZ : No. 1102 MDA 2022
Appeal from the Order Entered June 15, 2022
In the Court of Common Pleas of Franklin County Civil Division at No(s):
2017-1766
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM PER CURIAM: FILED: JUNE 21, 2023
Allen L. Shultz, III (“Husband”) appeals, pro se, from an order entered
June 15, 2022 divorcing Husband from Faith E. Shultz (“Wife”) and approving
the master’s report and recommendations in Husband’s divorce with Wife. We
dismiss Husband’s appeal based upon his failure to comply with the briefing
requirements of the Pennsylvania Rules of Appellate Procedure.
Husband and Wife were married in 1986 and lived together until 2014
when Wife moved out of the marital home. Wife returned to live in the home
again in July 2015, but she finally moved out in June 2016. On April 21, 2017,
Husband filed a divorce complaint through counsel. Wife filed an answer and
counterclaim, and Husband then filed an amended complaint on October 4,
2017. Husband’s counsel withdrew in 2018, and Husband then filed, pro se,
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* Retired Senior Judge assigned to the Superior Court.
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an amended divorce complaint on August 16, 2019. Husband has continued
to represent himself through the remainder of these proceedings.
On August 7, 2020, the trial court entered an order approving the
grounds for divorce but deferring the entry of a divorce decree until the
resolution of the parties’ equitable distribution claims. On August 13, 2020,
the trial court denied a request by Husband for recusal. Husband filed appeals
from both of these orders, which were quashed by this Court sua sponte as
non-final interlocutory orders. See Order, No. 1132 MDA 2020, 10/26/20;
Order, No. 1182 MDA 2020, 10/26/20.
On October 16, 2020, the trial court appointed James M. Stein, Esquire,
as master to preside over the claims for divorce, alimony, alimony pendente
lite, and counsel fees and expenses. A hearing was held before the master on
June 14, July 7, and July 28, 2021.
On October 6, 2021, the master filed his report and recommendations
in the trial court. In the report, the master found the date of the parties’
separation as December 18, 2014, finding that the Wife’s subsequent return
to the marital home for an 11-month period did not result in a reconciliation
among the parties. Report and Recommendations, 10/6/21, at 9-10. The
master determined that the valuations proposed by Wife’s expert were
credible and recommended that the trial court accept the values that were
assigned to the parties’ marital assets, which included the marital home, five
additional properties, and various personal property. Id. at 6-8. The amount
of marital debt was set at $100,870, including $98,275 on a home equity line
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of credit, while the debt on the home equity line of credit accrued after the
date of separation was attributable solely to Husband. Id. at 8-9.
The master recommended that the marital estate be split with 60% of
the net value to be received by Wife and 40% to Husband, with Husband
remaining responsible to pay Wife the sum of $91,822.60 over a period of 10
years after the division of the identified assets. Id. at 15-16. The master
further recommended that the trial court award alimony to Wife in the amount
of $200 per month until February 28, 2027, when she turned 65. Id. at 21.
Finally, the master recommended that the court direct Husband to pay $5,000
in attorney’s fees to Wife’s counsel based upon Husband’s “numerous and
repeated steps to delay the resolution of this matter, including the filing of
numerous frivolous motions and appeals which have been denied for various
procedural and substantive reasons.” Id. at 22-23.
Husband filed exceptions to the master’s report and recommendations,
and the trial court heard oral argument on the exceptions on March 3, 2022.
On June 15, 2022, the trial court entered an order overruling Husband’s
exceptions, along with an accompanying opinion explaining the court’s
reasoning as to each of his 14 exceptions. The court entered a separate order
on that date ordering Husband and Wife’s divorce and approving the master’s
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recommendations. Husband then filed a notice of appeal from this latter
order.1, 2
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1 Husband also indicated in his notice that he was appealing from the order
overruling his exceptions. However, that order was not final as it did not order
the equitable distribution of the parties’ assets. Reed v. Reed, 511 A.2d 874,
877 (Pa. Super. 1986) (stating that “[a]n order dismissing exceptions to a
Master’s Report but not entering a final decree of equitable distribution is not
a final order” and therefore a right of appeal does not attach to such order).
Nevertheless, Husband’s appeal from the final order decreeing the parties’
divorce and distributing their property draws into question the propriety of the
earlier non-final orders in this case, including the overruling of his exceptions.
Pa.R.A.P. 341, Note; K.H. v. J.R., 826 A.2d 863, 870-71 (Pa. 2003).
2 The last day upon which Husband could have filed his appeal was July 15,
2022. Pa.R.A.P. 903(a) (setting forth 30-day appeal deadline). Husband
mailed his notice of appeal to the Prothonotary of the Pennsylvania Supreme
Court on July 15, 2022, and the notice was stamped as received on July 19,
2022. The notice of appeal was required to be filed in the trial court, but,
pursuant to the Judicial Code and our appellate rules, we use the date when
it was received in our Supreme Court as the date of filing. 42 Pa.C.S. § 5103;
Pa.R.A.P. 902(a); Pa.R.A.P. 905(1)(1), (4). Nevertheless, we may not use
the date that Husband mailed the notice of appeal as the file date. Pa.R.A.P.
905(a)(3) (date that clerk receives notice of appeal “shall constitute the date
when the appeal was taken”). Therefore, Husband’s notice is deemed to have
been filed on the date of receipt, July 19, 2022, four days past the appeal
deadline.
On September 20, 2022, this Court issued a rule to show cause order directing
Husband to file a response indicating why his appeal should not be quashed
as untimely filed. Husband filed a response, in which he stated that he went
in person to the trial court on July 15, 2022, he was prevented from making
the filing by courthouse staff and escorted from the building, and he then
mailed his notice on that same day to our Supreme Court. Further
investigation by this Court revealed that Husband was not able to file the
notice because he refused to file in forma pauperis paperwork or pay a filing
fee at that time. This Court discharged the rule to show cause through an
October 20, 2022 order and referred this issue to the panel deciding the merits
of the appeal.
(Footnote Continued Next Page)
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Prior to reaching the merits of this appeal, we must address the
question—raised by Wife in applications to dismiss and in her appellate brief
and noted by the trial court in its Pa.R.A.P. 1925(a) opinion—of whether
Husband’s failure to comply with our Rules of Appellate Procedure requires
dismissal of this appeal or waiver of all his appellate issues. Wife argues that
Husband’s concise statement of errors complained of on appeal filed pursuant
to Rule 1925 “takes issue with every possible item that he could think of that
relates in any way to this case, and sets them forth in a defamatory,
incoherent rant.” Wife’s Brief at 5. Noting that the concise statement was
replete with personal attacks on herself, the trial court, the master, and others
involved in the case, Wife contends that Husband’s statement “fails to identify
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We conclude that Husband has asserted grounds for allowance of his appeal
nunc pro tunc. An appeal may be permitted nunc pro tunc where the appellant
shows that (1) the appeal was filed late as a result of non-negligent
circumstances, including a breakdown in the court’s operations, (2) the notice
of appeal was filed shortly after the expiration date, and (3) the appellee was
not prejudiced by the delay. Vietri ex rel. Vietri v. Delaware Valley High
School, 63 A.3d 1281, 1284 (Pa. Super. 2013). A breakdown occurred here
where Husband appeared to file his notice of appeal and was only prevented
from doing so as a result of a disagreement with court staff regarding the
payment of the fee. Pa.R.A.P. 902(b) (failure to take any step, aside from the
filing of a timely notice of appeal, will not provide grounds for dismissal of the
appeal); First Union National Bank v. F.A. Realty Investors Corp., 812
A.2d 719, 722-23 (Pa. Super. 2002) (holding that appeal filed within allotted
time period but without payment of requisite fee or attempt to obtain in formal
pauperis status was valid; “the perfection of the appeal does not depend in
any way on the payment of the filing fee”). Furthermore, the appeal was
promptly filed after the expiration date when Husband mailed it on that day
to our Supreme Court and it was received four days later. Finally, there is no
allegation that Wife was prejudiced by the very short delay in the filing of the
appeal.
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each error with sufficient detail or clarity that allows a response” and that it
raises an “outrageous” number of issues. Id. at 6.
Wife further argues that Husband failed to comply with the briefing
requirements set forth in Chapter 21 of the Rules of Appellate Procedure,
asserting that his “almost 400-page brief is a diatribe of accusations and
defamatory statements,” including only Husband’s version of the facts and
procedural history without any citations to the record or correspondence to
what actually occurred in this case. Id. Wife notes that Husband includes
numerous attachments to his brief that are irrelevant to this appeal and were
not introduced as exhibits in the lower court. Id. at 6-7. According to Wife,
Husband’s brief contains no citations to pertinent legal authority, and it is
simply “a compilation of redundant and incoherent thoughts that leave [Wife]
unable to appropriately and effectively respond.” Id. at 7. Wife contends
that, notwithstanding Husband’s pro se status, it is impossible to discern from
his concise statement and brief what issues he seeks to raise, and therefore
dismissal of his appeal or waiver of all his appellate issues is required. Id. at
9-10.
We first address Wife’s arguments related to the deficiencies in
Husband’s appellate brief. Pursuant to our appellate rules, an appellant’s brief
must be divided into various prescribed sections, including a statement of the
questions involved, statement of the case, summary of the argument, and
argument. Pa.R.A.P. 2111(a)(4), (5), (6), (8). An appellant must comply
with the strictures of our appellate rules regarding the composition of his brief
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or risk quashal or dismissal of his appeal. Pa.R.A.P. 2101 (“[I]f the defects
are in the brief . . . of the appellant and are substantial, the appeal . . . may
be quashed or dismissed.”); Smithson v. Columbia Gas of PA/NiSource,
264 A.3d 755, 760-61 (Pa. Super. 2021) (dismissing appeal where defects in
appellant’s brief foreclosed any possibility of appellate review); Elliot-
Greenleaf, P.C. v. Rothstein, 255 A.3d 539, 541-42 (Pa. Super. 2021)
(quashing appeal based upon “serious inadequacies” in appellant’s brief).
As relevant to this specific case, we note that the statement of questions
involved “must state concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without unnecessary detail.”
Pa.R.A.P. 2116(a). The statement of the case shall include the procedural
history of the case, discussion of the determinations under review, and a
condensed chronological narrative of the facts of the case with appropriate
reference to the record, but this section “shall not contain any argument” and
instead must communicate “a balanced presentation of the history of the
proceedings and the respective contentions of the parties.” Pa.R.A.P.
2117(a)(1), (2), (4), (b). Furthermore, the argument section “shall be divided
into as many parts as there are questions to be argued,” with distinctively
displayed headings “followed by such discussion and citation of authorities as
are deemed pertinent.” Pa.R.A.P. 2119(a). The appellant must also include
“a concise, but accurate, summary of the arguments presented” in the
summary of argument section of the brief. Pa.R.A.P. 2118.
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As Husband is representing himself in this appeal, we observe that,
although this Court will construe the materials filed by a pro se litigant
liberally, pro se status confers no special benefit upon an appellant.
Smithson, 264 A.3d at 760; Norman for Estate of Shearlds v. Temple
University Health System, 208 A.3d 1115, 1118 (Pa. Super. 2019). A “pro
se litigant must comply with the procedural rules set forth in the Pennsylvania
Rules of the Court,” and we must not act as an appellant’s counsel.
Smithson, 264 A.3d at 760-61; see also In re deLevie, 204 A.3d 505, 511
(Pa. Super. 2019). “To the contrary, any person choosing to represent himself
in a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.” Norman, 208 A.3d at 1118-
19; see also Smithson, 264 A.3d at 761.
Upon review of Husband’s appellate brief, we agree with Wife that the
defects of the brief are so numerous and fundamental so as to preclude our
ability to effectively address his appeal. Husband does include a statement of
the case in his brief, but this section lacks a procedural history of the case and
information regarding the determinations for which he seeks review, and his
discussion of the factual background is riddled with argumentative assertions
and rehashing of the events that led to his separation from Wife. Pa.R.A.P.
2117(a)(1), (2), (4), (b); Appellant’s Brief at 14-17. Husband’s brief lacks an
argument section entirely, and his summary of the argument section does not
concisely summarize any argument that he seeks to raise but instead only
identifies general topics that he appears to seek that this Court address.
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Pa.R.A.P. 2118, 2110; Appellant’s Brief at 5 (“DISABILITY FEDERAL PROPERTY
RIGHT, ADA RIGHTS, SUPPORT OBLIGATIONS, FRAUD[,] MALICIOUS
ABANDONMENT, EXPLOITATION, EXTORTION . . .”).
Husband does present some semblance of argument across the 33
questions and numerous additional sub-questions in the statement of
questions section of the brief, but his contentions are repetitive and fail to
identify with any clarity the specific trial court errors of which he complains.
See Pa.R.A.P. 2116, Note (“[A] party should draft the statement of questions
involved accordingly, with sufficient specificity to enable the reviewing court
to readily identify the issues to be resolved while incorporating only those
details that are relevant to disposition of the issues.”). Even if we were to
treat the statement of questions as his argument section, Husband would still
fall short of the strictures of our appellate rules as the issues are poorly
developed and devoid of any discussion of pertinent legal authority. Pa.R.A.P.
2119(a), (b); see also Elliot-Greenleaf, 255 A.3d at 542 (“The Rules of
Appellate Procedure state unequivocally that each question an appellant raises
is to be supported by discussion and analysis of pertinent authority.”) (citation
omitted). Viewing Husband’s brief as a whole, we are constrained to conclude
that the deficiencies are so substantial to require our dismissal of this appeal.
Pa.R.A.P. 2101; Smithson, 264 A.3d at 760-61; Elliot-Greenleaf, 255 A.3d
at 541-42.
Even if we did not find that dismissal of this appeal was warranted based
upon the defects in Husband’s appellate brief, we would find that Husband
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waived all of his appellate issues due to his failure to comply with Rule of
Appellate Procedure 1925(b). Husband’s obligation to file a Rule 1925(b)
concise statement was triggered when the trial court issued an order on
August 15, 2022 directing him to do so. Pursuant to this rule, Husband was
thus required to file a concise statement that “concisely identif[ies] each error
that [he] intend[ed] to assert with sufficient detail to identify the issue to be
raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii); see also Pa.R.A.P.
1925(b)(4)(vii) (providing that issues not raised in accordance with the
requirements of Rule 1925 are deemed waived). “[A] concise statement which
is too vague to allow the court to identify the issues raised on appeal is the
functional equivalent of no concise statement at all.” Commonwealth v.
Price, 284 A.3d 165, 170 (Pa. 2022) (brackets and citation omitted); see
also Satiro v. Maninno, 237 A.3d 1145, 1150 (Pa. Super. 2020).
When a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. When an appellant fails
adequately to identify in a concise manner the issues sought to be
pursued on appeal, the trial court is impeded in its preparation of
a legal analysis which is pertinent to those issues.
Satiro, 237 A.3d at 1150 (quoting Lineberger v. Wyeth, 894 A.2d 141, 148
(Pa. Super. 2006)).
A concise statement may also be found wanting when it includes too
much information. Rule 1925 directs the appellant that his filing must not be
“redundant or provide lengthy explanations as to any error.” Pa.R.A.P.
1925(b)(4)(iv). Furthermore, this Court has found waiver where an appellant
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has filed a “voluminous” concise statement that raises an “outrageous”
number of issues. See, e.g., Satiro, 237 A.3d at 1150-51 (finding that the
appellant waived his appellate issues where he raised 29 issues in his concise
statement).
[T]his Court has held that when appellants raise an outrageous
number of issues in their 1925(b) statement, the appellants have
deliberately circumvented the meaning and purpose of Rule
1925(b) and have thereby effectively precluded appellate review
of the issues they now seek to raise. We have further noted that
such voluminous statements do not identify the issues that
appellants actually intend to raise on appeal because the briefing
limitations contained in Pa.R.A.P. 2116(a) makes the raising of so
many issues impossible. Further, this type of extravagant
1925(b) statement makes it all but impossible for the trial court
to provide a comprehensive analysis of the issues.
Id. (citations, quotation marks, and brackets omitted).
Here, Husband’s concise statements3 suffer the flaws of being both too
voluminous and also too vague to allow the trial court to ascertain the issues
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3 Husband filed two concise statements in this matter. Husband’s initial
September 6, 2022 was timely filed within 21 days of the trial court’s August
15, 2022 order, but he filed the statement in this Court rather than in the
lower court. In its September 9, 2022 Pa.R.A.P. 1925(a) opinion, the trial
court found that Husband waived his appellate claims due to his failure to file
a concise statement. Trial Court Opinion, 9/9/22, at 2-3. In our September
20, 2022 rule to show cause order, we directed Husband to indicate why his
appeal should not be dismissed for waiver of all his issues. In light of
Husband’s response to the rule to show cause in which he indicated that he
served the concise statement on the trial court by mail and our further review
of the trial court’s August 15, 2022 order that was ambiguous as to the court
in which the concise statement was to be filed, we discharged the rule to show
cause. In a subsequent December 29, 2022 order, we directed Husband to
file and serve a concise statement with the trial court by January 3, 2023.
Husband complied with this directive, filing a supplemental statement, which
(Footnote Continued Next Page)
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Husband sought to raise. Husband’s initial September 6, 2022 statement
contains factual allegations of error stretching over 33 paragraphs and sub-
paragraphs, and his supplemental January 3, 2023 statement contains one
additional paragraph. Furthermore, many of the paragraphs in the statements
are not restricted to a single issue; for example, the paragraph in the January
3rd statement, which stretches over a full-page in single-spaced type,
identifies numerous potential issues, including fraud, judicial misconduct,
misconduct by Wife’s counsel, and due process and equal protection
violations. Rule 1925(b) Statement, 1/3/23, ¶3.
Husband’s Rule 1925(b) statements also failed to identify specific trial
court errors and were insufficient given the imprecise and sometimes
unintelligible language that employed in the statements and the numerous
objections to the proceedings below based upon outlandish and nonsensical
legal theories. See, e.g., id. (“[The presiding judge] went on to engage in
full retaliation against [Husband] attempting to unlawfully exploit[,] extort[,]
asset strip, and force [Husband] into peonage []and debt slavery by his null,
[] void, contemptuous, and repugnant orders . . .”); Rule 1925(b) Statement,
9/6/22, ¶4 (“The actors in this court continue to violate ‘[Husband’s] civil
rights in disability’ in continuing to hide exculpatory evidence of my now 8
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attached and incorporated his earlier statement and raised additional issues.
On January 17, 2023, the trial court filed a supplemental Rule 1925(a) opinion,
in which it concluded that Husband waived his appellate issues based upon his
failure to adhere to the applicable appellate rules. Trial Court Opinion,
1/17/23, at 2-3.
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certified disabilities in Brady vs Maryland type violations.”); id. ¶21
(“[Husband] was not physically competent to participate in the Star Chamber
hearing of [the] divorce Master . . . The whole hearing was [a] predetermined
sham . . . to further injure innocent disabled [Husband] in ill will, bias, and
partiality . . .”).
The trial court found that the numerous paragraphs of Husband’s
concise statement lacked “sufficient detail” and were “not discernable to the
point that” the court could not meaningfully respond and that Husband fell
back on “the familiar accusations of wrongdoing that [he] has levied against
this court for the last five years in multiple filings.” Trial Court Opinion,
1/17/23, at 2-3. The trial court then noted that Husband did appear to take
issue with the court’s rulings overruling his exceptions to the master’s report
and recommendations, and thus the court relied on its earlier opinion
addressing the exceptions to the extent necessary for appellate review. Id.
at 3. Notwithstanding the trial court’s efforts to discern Husband’s appellate
issues, we agree with its conclusion that Husband forfeited review of any
issues due his non-compliant concise statements. See Satiro, 237 A.3d at
1151 (holding that Rule 1925(b) statement was “so voluminous and vague”
that meaningful appellate review was precluded, issues were accordingly
waived, and trial court’s attempt to decipher issues did not rescue appellant
from finding of waiver).
Accordingly, we conclude that Husband’s brief failed to comply with our
appellate rules to a degree that requires dismissal of this appeal.
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Furthermore, even if we did not dismiss this appeal, we would concur in the
trial court’s judgment and affirm on the grounds that Husband waived his
appellate issues through filing of his deficient concise statements.4
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4 In addition, to the extent that any issues Husband intends to raise could
possibly be discerned, we would also find that they lack merit. Husband
objects to the trial court’s adoption of the master’s recommendation that he
had a monthly earning capacity, including rental income and potential wages
or salary, of $2,606.49; he appears to assert that this finding was barred by
the Social Security Administration’s determination that he was totally
disabled. Such an argument, however, ignores the fact that, in domestic
relations matters, a trial court is not bound by a finding of a spouse’s earning
capacity in an administrative proceeding as to which the other spouse was not
a party. Ewing v. Ewing, 843 A.2d 1282, 1286-87 (Pa. Super. 2004).
Husband also takes issue with the trial court’s determination of Wife’s monthly
earning capacity as $852 per month, the adoption of Wife’s expert’s valuations
of the couple’s properties, and that any amount on the home equity line of
credit above $98,275 constituted non-marital debt attributable solely by
Husband. However, these findings are supported by the record and the trial
court’s credibility determinations. N.T., 6/14/21, at 125-30, 202, 226-27;
N.T., 7/28/21, at 9-17, 66-71; Wife’s Exhibits 1, 2, 9, 12, 15, 22; Trial Court
Opinion, 6/15/22, at 3-4, 6. As such, we cannot reverse these findings on
appeal. Brubaker v. Brubaker, 201 A.3d 180, 184 (Pa. Super. 2018) (“[I]t
is within the province of the trial court to weigh the evidence and decide
credibility [when fashioning an equitable distribution award,] and this Court
will not reverse those determinations so long as they are supported by the
evidence.”) (citation omitted). Finally, Husband has not raised any plausible
allegations of judicial misconduct or conflict of interest that would have
required the recusal of the judge presiding over the proceedings below.
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Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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