K.F.P. v. J.M.P. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.F.P. OBO MINOR V.I.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.M.P. : No. 2334 EDA 2020
Appeal from the Order Entered November 5, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2020-06408
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS: FILED JUNE 1, 2021
K.F.P. (Wife) appeals pro se from the order which granted J.M.P.’s
(Husband) petition for special relief to enforce the settlement agreement and
vacated the temporary protection order previously entered pursuant to the
Protection From Abuse (PFA) Act1. We affirm.
The trial court, with the Honorable Daniel J. Clifford presiding, set forth
the factual and procedural history in this matter in his opinion. See Trial Ct.
Op., 1/26/21, at 1-5. Relevant to this appeal, Wife filed a PFA petition against
Husband on May 26, 2020, on behalf of herself and the parties’ son, V.I.P.,
born in December of 2019. The Honorable Richard Haaz issued a temporary
PFA order that same day.
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1 23 Pa.C.S. §§ 6101-6122.
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The Honorable Melissa S. Sterling held a PFA evidentiary hearing on June
18, 2020, and the parties were represented by their respective counsel. At
the start of the hearing, Judge Sterling asked the parties if they had attempted
to settle the PFA matter. N.T., 6/18/20, at 3-4. The parties explained that
they had previously discussed settlement, but could not reach an agreement.
Id. at 4. Judge Sterling took a brief recess so that the parties could engage
in further negotiations. Id. at 4-5. The parties did not reach an agreement
at that time, and Judge Sterling proceeded with the PFA hearing. Id. at 4-5.
The parties, who were then also involved in a pending divorce action, testified
regarding Wife’s claims of abuse. Id. at 6-57. Upon completion of the
testimony, Judge Sterling encouraged counsel for both parties to again discuss
a possible agreement during a recess before she issued a ruling. Id. at 66.
The trial court explained:
Upon return from the recess, Wife’s counsel informed Judge
Sterling that the parties had reached an agreement. Specifically,
Wife’s counsel stated that “some things are going to be
accomplished under the divorce docket, and once those things are
accomplished, [Wife] has agreed to withdraw the PFA.” It was
indicated that Husband’s [c]ounsel was “going to create a
stipulation containing those terms, the parties are going to
circulate it, sign it, it’s going to be entered under the divorce
action. Once that’s done, there will be a [c]ourt [o]rder requiring
him to stay away from the house and get counseling.”
A handwritten agreement, titled “ORDER”, was then signed by the
parties, and signed by Judge Sterling, setting forth the following
agreed[-]upon terms:
1. The [p]arties will sign an exclusive possession agreement
granting [Wife] exclusive possession of [the marital
residence]. [Husband] may come to residence to pick up
child.
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2. [Husband] shall be permitted to come to [Wife’s]
residence at a mutually agreed upon time to retrieve his
personal property with third[-]party present.
3. [Husband] shall complete a batterers’ intervention
course.
4. Parties to communicate via text and email only.
5. Once a stipulation containing the above terms is
entered under divorce docket, [Wife] agrees to
withdraw the above-captioned PFA petition and
vacate the temporary order.
* * *
Order, Sterling, J., 6/18/2020 [(agreed order) (emphases
added).]
Prior to closing the record, Judge Sterling reiterated: “[t]here’s an
agreement.”
Trial Ct. Op. at 2-3 (footnotes omitted). Judge Sterling then re-listed the PFA
hearing for a later date to give the parties time to draft and sign a final
stipulation, and to file it on the divorce docket. Id. at 3.
On October 21, 2020, prior to the re-listed hearing date, Husband filed
a petition for special relief to enforce the agreed order. Husband asserted that
he complied with the terms of the agreed order, but that Wife refused to sign
the final stipulation and withdraw her PFA petition as required under the
agreed order. Specifically, Husband contended that he had provided Wife with
proof that he had completed a batterers’ intervention course. Id. at 3-4.
On October 23, 2020, Wife filed a response denying that Husband “had
completed the proper batterers’ intervention course in accordance with [her]
memory of all of the off-the-record verbal discussions between the parties and
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counsel in their settlement negotiations during the recess.” Id. at 4 (footnote
omitted). Wife alleged “that the course Husband was supposed to take was
to be more therapeutic in nature as opposed to a one-time course.” Id.
(footnote omitted).
On October 26, 2020, the parties and their counsel appeared before the
trial court for the re-listed PFA hearing. The trial court summarized the
hearing as follows:
During the proceeding, the undersigned went through the agreed
order of June 18, 2020, point by point, to determine if there had
been compliance with all of its terms. Although Wife repeated her
dissatisfaction with the type of batterers[’] intervention course that
Husband took, ultimately, it was demonstrated that there had
been compliance with each point in the agreed order including,
but not limited to, Wife having exclusive possession of the marital
residence to the exclusion of Husband (as this was not included
as part of the temporary PFA order).
Id. at 5 (footnote omitted and formatting altered).
We add that Wife’s counsel explained that, prior to his involvement in
the case, Wife, acting pro se, sent an e-mail to Husband’s counsel indicating
that the type of batterers’ intervention course she contemplated him taking in
order to settle the PFA matter. N.T., 10/26/20, at 9; see also Ex. P-2 (Wife’s
e-mail correspondence to Husband’s counsel, dated June 4, 2020). Wife’s
counsel explained that the program his client proposed “was through an
organization called Menergy here in . . . southeastern Pennsylvania, and it
would be an individualized program. So they wouldn’t give an estimation of
how long it would take because that would be subject to an initial evaluation
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that would have to be done.” N.T., 10/26/20, at 4; see also Ex. P-1
(paperwork for a Menergy batterers’ intervention course attached to Wife’s
June 4, 2020 e-mail). Husband’s counsel stated: “I think part of the issue
was we didn’t agree to that. That’s why we came to a [PFA] hearing [on June
18, 2020].” Id. at 9. Wife’s counsel represented that Wife would not have
signed the agreed order if the understanding was that Husband would
complete a four-hour class and not the course she desired. Id. at 17. At the
conclusion of the hearing, the trial court took the matter under advisement.
On October 27, 2020, Wife filed a pro se petition for special relief
alleging that although the parties had agreed that Husband would complete a
specific batterers’ intervention course, he instead completed a different
program. Pet. for Special Relief, 10/27/20, at 2-4. Wife alternatively argued
that because the parties thought they had reached an agreement, but actually
did not reach an agreement with respect to the batterers’ intervention course,
their agreement was not valid and the agreed order should be vacated. Id.
at 5. Wife also asserted that Husband acted in bad faith during the
negotiations. Id. at 4-5. Wife requested that the trial court order Husband
“to complete the [b]atterer[s’] intervention program he originally agreed to,
or, alternatively, vacate the [agreed order] of June 18, 2020, given that
[Husband] does not intend to comply with it, and make a ruling on the merits
of the case, granting a final protection from abuse order.” Id. at 6.
By memorandum and order entered on November 5, 2020, the trial
court made the following factual findings, in part:
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F. [Wife] concedes that [Husband] complied with all of the terms
of the agreed order[;] however, she does not agree with the type
of “batterers[’] intervention course” that [Husband] took.
G. [Husband] completed a four[-]hour “Domestic Violence Class”
on June 22, 2020 provided by the North American Learning
Institute. The course included a “written knowledge assessment”
and is conducted by a certified domestic violence
specialist/certified anger management specialist (CDVS-1/CAMS-
1). See Exhibit “D-1.”[fn3]
The course description indicates that the class has a
[fn3]
number of different names but all reference the same
requirements (i.e.[,] “batterers[’] intervention program”,
“family violence”, “DV”, etc.).
H. [Wife] does not dispute that [Husband] took the course;
rather[,] she indicates that she anticipated that [Husband] would
be taking a “therapeutic” type course that would include numerous
therapy type sessions (not a one-time class).
I. The parties[’] agreed order does not specify a particular course
offered in Montgomery County (or regionally), the course
provider, the length, or time period(s) for the course or any
particular course criteria.
J. There is no provision in the agreed order that the course to be
taken by [Husband] would be “approved” in advance by [Wife].
K. Notably, the agreed order does not indicate that the course
would be therapeutic.
L. As acknowledged by [Wife] in her petition, [Husband]
completed a psychological evaluation by a licensed professional as
part of the pending [child] custody action. The concerns [Wife]
raises about [Husband] can be appropriately addressed in the
custody case. See [Pet., 10/27/20, at ¶¶ 38-42].[fn4]
[fn4] A two-day hearing on custody is scheduled on November
19 and 20, 2020.
M. Accordingly, the court finds that [Husband’s] completion of the
course was compliant with the terms of the agreed order.
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Trial Ct. Mem. & Order, 11/5/20, at 2-3 (some formatting altered) (emphasis
in original). Based on these findings, the trial court granted Husband’s petition
for special relief and denied Wife’s pro se petition for special relief. Id. at 4.
Further, the trial court upheld the terms of the June 18, 2020 agreed order
and vacated the May 26, 2020 temporary PFA order. Id.
Wife filed a timely pro se notice of appeal and entry of appearance as a
self-represented party on November 27, 2020.2 Wife filed a timely court-
ordered Pa.R.A.P. 1925(b) statement. On January 26, 2021, the trial court
filed a Rule 1925(a) opinion which concluded that Wife’s issues were waived
but it addressed the merits of her claims.
On appeal, Wife raises the following issues, which we have reordered as
follows:
1. Did [Wife] concede that [Husband] complied with all the terms
of the agreed order, or did [Wife] aver that [Husband] complied
with all terms except one, the specified batterer[s’]
intervention program?
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2 On January 19, 2021 this Court issued a rule to show cause why this appeal
should not be quashed as interlocutory. Order, 1/19/21. Wife filed a pro se
response on January 20, 2021 baldly asserting that November 5, 2020 order
was a final order. Resp. to Rule to Show Cause, 1/20/21, at 1-2. On February
2, 2021, this Court quashed the appeal because “[Wife] failed to address, in
the response, the issues of appealability . . . .” Order, 2/2/21, at 2. On the
same date, Wife filed a pro se motion for reconsideration of the quashal order.
In her motion for reconsideration, Wife asserted that the November 5, 2020
order, which vacated the temporary PFA order, effectively denied her PFA
petition, but not “on the merits of the [PFA] case.” Id. at ¶ 8(h)(i). Wife
contended that the November 5, 2020 order is a final, appealable order. Id.
at ¶¶ 8(g)–9. This Court granted Wife’s motion on February 23, 2021, and
reinstated this appeal.
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2. Did the parties have appropriate consideration of terms, to
make the agreed order of June 18, 2020 enforceable?
3. Did the trial court err in denying the parties a decision based
on the merits of the [PFA] complaint, and instead concluding
the matter based on the written order of June 18, 2020?
4. Is it constitutional for the trial court to accept an alternative
term on behalf of [Wife] with her expressed opposition and
disagreement to the same?
Wife’s Brief at 8 (formatting altered).3
Jurisdiction
Initially, we must address the appealability of the November 5, 2020
order. See K.M.G. v. H.M.W., 171 A.3d 839, 841 (Pa. Super. 2017)
(explaining that “[t]his Court may examine appealability sua sponte because
it affects our jurisdiction over the matter” (citation omitted and formatting
altered)). Husband argues that this appeal should be quashed because the
November 5, 2020 order is not a final order. Husband’s Brief at 8-10.
Pennsylvania Rule of Appellate Procedure 341 states that “an appeal
may be taken as of right from any final order of a . . . trial court.” Pa.R.A.P.
341(a). The rule defines a “final order” as an order that “disposes of all claims
and of all parties.” Pa.R.A.P. 341(b)(1).
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3 Wife raised several claims and sub-issues in her Rule 1925(b) statement that
she did not address in her brief, including a claim that Husband’s counsel acted
unethically during the proceedings below. However, because Wife did not
raise those issues in her brief, we conclude that these issues have been
abandoned for purposes of appeal. See Cook v. Cook, 186 A.3d 1015, 1019
n.1 (Pa. Super. 2018) (holding that issues raised in an appellant’s 1925(b)
statement but not included in the appellant’s brief were abandoned).
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Here, the trial court’s November 5, 2020 order granted Husband’s
petition for special relief, denied Wife’s petition for special relief, enforced the
agreed order, and vacated the temporary PFA order. There are no outstanding
claims or parties remaining in Wife’s PFA action, and therefore, we conclude
that the instant order is a final appealable order. See Pa.R.A.P. 341(a)-(b)(1).
Enforceability of the Agreed Order
In her first three claims, Wife argues that the trial court erred in
enforcing the agreed order and vacating the temporary PFA based on
Husband’s interpretation of its terms. Wife’s Brief at 14-23.
First, Wife claims that Husband did not satisfy one of the express terms
of the June 18, 2020 agreed order. Id. at 14-16, 20-21. Second, Wife
explains that prior to the June 18, 2020 PFA hearing, she sent an email to
Husband’s counsel with information about the specific batterer intervention
program she wanted Husband to complete in exchange for her withdrawing
her PFA complaint. Id. at 14. Wife asserts that during the negotiations
between the parties on June 18, 2020, Wife accepted Husband’s proposed
terms, including sole possession of the marital residence, “but consistently
maintained throughout the negotiations that she would only agree to withdraw
her complaint if he completed the specific batterer intervention program
presented.” Id. at 14-15 (emphasis in original). Wife claims that Husband
agreed to attend the specific course Wife proposed, but that he later denied
agreeing to attend a specific course and attended a course different from the
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one the parties had agreed upon. Id.; see also id. at 20-21 (referencing the
negotiations between the parties).
Wife alternatively contends that “the [p]arties were jointly unable to
meet their contractual obligations of the June 18, 2020 order by agreement,
and due to that fact, that order is further rendered void and unenforceable,
regardless of the underlying reasons why litigants were not able to comply
with that agreement . . . .” Id. at 21. Specifically, Wife claims that the trial
court should not have enforced the agreed order for several reasons,
including: (1) the parties intended the agreed order to be temporary and the
parties never reached a final agreement/stipulation; (2) the parties did not
reach a meeting of the minds regarding the specific course Husband was to
complete; (3) the parties were unable to meet their obligations under the
agreed order; and (4) Husband negotiated in bad faith and/or committed fraud
because he never intended to complete the specific course Wife proposed. Id.
at 16-23.
Husband responds that Wife’s issues are waived because her Rule
1925(b) statement and brief do not conform to the Rules of Appellate
Procedure.4 Husband’s Brief at 11-17. Husband also argues that because he
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4 Husband also contends that Wife’s claim that Husband’s counsel acted
unethically during the proceedings before the trial court is “personal,
baseless[,] and insulting” and requests that we sanction Wife. Husband’s Brief
at 14 n.1 (citing Wife’s 1925(b) statement, 12/23/20, at ¶ 6(f)). As stated
above, we conclude that Wife has abandoned her claim regarding the conduct
of Husband’s counsel. Further, Husband has not cited any authority to support
his request for sanctions. See Husband’s Brief at 14 n.1. Therefore,
Husband’s request for sanctions is denied.
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completed a batterers’ intervention course as required by the terms of the
agreed order, the trial court did not err in finding that he complied with its
terms. Id. at 18-23.
In PFA matters, this Court reviews a “trial court’s legal conclusions for
an error of law or an abuse of discretion.” Custer v. Cochran, 933 A.2d
1050, 1053-54 (Pa. Super. 2007) (en banc) (citation omitted). A trial court
does not abuse its discretion for a mere error of judgment; rather, an abuse
of discretion is found “where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.” Mescanti v. Mescanti, 956
A.2d 1017, 1019 (Pa. Super. 2008) (citation omitted).
With respect to settlement agreements, this Court has explained:
The enforceability of settlement agreements is determined
according to principles of contract law. Because contract
interpretation is a question of law, this Court is not bound by the
trial court’s interpretation. Our standard of review over questions
of law is de novo and to the extent necessary, the scope of our
review is plenary as [this C]ourt may review the entire record in
making its decision. With respect to factual conclusions, we may
reverse the trial court only if its findings of fact are predicated on
an error of law or are unsupported by competent evidence in the
record.
* * *
Where a settlement agreement contains all of the requisites for a
valid contract, a court must enforce the terms of the agreement.
Step Plan Servs., Inc. v. Koresko, 12 A.3d 401, 408-09 (Pa. Super. 2010)
(citations omitted and formatting altered).
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Further, our Supreme Court has stated that
under the law of contracts, in interpreting an agreement, the court
must ascertain the intent of the parties.
In cases of a written contract, the intent of the parties is the
writing itself. If left undefined, the words of a contract are to be
given their ordinary meaning. When the terms of a contract are
clear and unambiguous, the intent of the parties is to be
ascertained from the document itself. When, however, an
ambiguity exists, parol evidence is admissible to explain or clarify
or resolve the ambiguity, irrespective of whether the ambiguity is
patent, created by the language of the instrument, or latent,
created by extrinsic or collateral circumstances. A contract is
ambiguous if it is reasonably susceptible of different constructions
and capable of being understood in more than one sense. While
unambiguous contracts are interpreted by the court as a matter
of law, ambiguous writings are interpreted by the finder of fact.
Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citations omitted).
“Consideration of other factors, such as the knowledge of the parties
and the reasonableness of their bargain, is inappropriate.” Simeone v.
Simeone, 581 A.2d 162, 165 (Pa. 1990) (citation omitted). Additionally,
“[c]ontracting parties are normally bound by their agreements . . . irrespective
of whether the agreements embodied reasonable or good bargains.” Id.(citations omitted).
Further, “Pennsylvania law states that, once formed, a settlement will
not be set aside except upon a clear showing of fraud, duress, or mutual
mistake.” Step Plan Servs., 12 A.3d at 409 (citation and quotation marks
omitted).
This Court has explained:
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Mutual mistake exists . . . only where both parties to a contract
are mistaken as to existing facts at the time of execution.
Moreover, to obtain reformation of a contract because of mutual
mistake, the moving party is required to show the existence of a
mutual mistake by evidence that is clear, precise and convincing.
Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943, 948 (Pa. Super.
2004) (citations omitted and formatting altered).
To prove fraud, a plaintiff must demonstrate by clear and
convincing evidence: (1) a representation; (2) which is material
to the transaction at hand; (3) made falsely, with knowledge of
its falsity or recklessness as to whether it is true or false; (4) with
the intent of misleading another into relying on it; (5) justifiable
reliance on the misrepresentation; and (6) the resulting injury was
proximately caused by the reliance.
Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002) (citation
omitted and formatting altered).
It is well established that “a party who consents to, or acquiesces in, a
judgment or order cannot appeal therefrom.” Brown v. Commonwealth,
Dep’t of Health, 434 A.2d 1179, 1181 (Pa. 1981); see also Karkaria v.
Karkaria, 592 A.2d 64, 71 (Pa. Super. 1991) (stating that “[a] party who has
acquiesced in an order or judgment will not later be heard to challenge it”
(citation omitted)). Further, “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Instantly, the trial court concluded that Wife waived her issues regarding
the batterers’ intervention course in the agreed order because she did not
make a contemporaneous objection before the trial court. Trial Ct. Op. at 8.
Specifically, the trial court explained:
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Wife has waived her issue on appeal because she did not object
to the language contained in the [a]greed [o]rder at the time she
signed it and it was made an [o]rder of the [c]ourt.
As noted in the November 4, 2020 [o]rder . . . the [a]greed [o]rder
of June 18, 2020 did not specify a particular course offered in
Montgomery County (or regionally), the course provider, the
length, or time period(s) for the course or any particular course
criteria. There is no provision in the [a]greed [o]rder that the
course to be taken by Husband would be “approved” in advance
by Wife. Finally, the [a]greed [o]rder does not indicate that the
course would be therapeutic.
Notably, Wife does not dispute that Husband took a batterers [’]
intervention course, rather that he did not take the type of
batterers[’] intervention course that she wanted him to take . .
..
In point of fact, Husband completed a four hour “Domestic
Violence Class” on June 22, 2020 provided by the North American
Learning Institute.
* * *
It was not until after Husband had completed the course, and
sought enforcement of the [a]greed [o]rder of June 18, 2020, that
Wife raised issue to the type of course that she wanted Husband
to complete.
Thus . . . Wife raises an issue with her interpretation of a specific
point in the [a]greed [o]rder only after she signed it and after it
was already made an [o]rder of the [c]ourt. Both Wife and her
counsel clearly had every opportunity to add or make any
clarifications to its terms at the time the [a]greed [o]rder was
negotiated, before it was signed, and before it became an [o]rder
of the [c]ourt. Accordingly, Wife’s issues as it relates to what she
thought she agreed to in the [a]greed [o]rder are waived.
Id. at 9-10 (footnotes omitted) (emphases in original)
The trial court also concluded that Wife waived her challenge to the
terms of her agreement because she acquiesced to the terms of the agreed
order and, therefore, she could not later challenge the agreement absent a
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showing of fraud or mutual mistake. Id. at 10-11 (citing, inter alia, Karkaria,
592 A.2d at 71). Further, the trial court stated that that Wife “did not make
specific averments of fraud or mutual mistake, either in her pleadings or at
the October 26, 2020” hearing, and that she has raised the issue of fraud for
the first time on appeal. Id. at 12.
Based on our review of the record, we agree with the trial court that
Wife waived her challenge to the interpretation of the terms in the agreed
order by consenting to the entry of that order. See Brown, 434 A.2d at 1181.
In any event, we discern no error by the trial court in concluding that the
agreed order did not require Husband to take a particular batterers’
intervention course or give Wife the power to approve the course Husband
would take. See Trial Ct. Mem. & Order at 2-3. Therefore, Wife is not entitled
to relief on this claim. See Step Plan Servs., 12 A.3d at 408; Custer, 933
A.2d at 1053-54.
However, we disagree with the trial court’s conclusion that Wife waived
her claim regarding fraud and/or mutual mistake. Our review of the record
indicates that in her pro se petition for special relief, Wife alleged that there
was a mutual mistake regarding the batterers’ intervention course and that,
alternatively, Husband committed fraud during the settlement negotiations.
See Pet. for Special Relief, 10/27/20, at 4-5. Although Wife did not use the
terms “mutual mistake” or “fraud” in her petition, her allegations implicated
those grounds. See Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa. Super. 2003)
(stating that we may liberally construe filings by pro se parties). However,
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because Wife did not prove her allegations of fraud or mutual mistake by clear
and convincing evidence, we nonetheless conclude that the trial court did not
err in enforcing the agreed order. See Felix, 848 A.2d at 948; Blumenstock,
811 A.2d at 1034.
Therefore, because we find no abuse of discretion or error of law in the
trial court’s decision to enforce the agreed order and vacate the temporary
PFA order, Wife is not entitled to relief on her first three issues. See Step
Plan Servs., 12 A.3d at 408; Custer, 933 A.2d at 1053-54.
Due Process Claim
In her final issue, Wife argues that the trial court violated her due
process rights. Specifically, Wife argues:
The Fifth and Fourteenth Amendments of the Constitution of the
United States protect [Wife’s] civil rights to liberty and due
process.
However, by accepting different terms on the [Wife’s] behalf the
trial court has deprived [Wife] of her individual freedom to enter
specific contract terms by consent.
Instead, the trial court has forced [Wife] to accept an alternative
contract term, that she was not only never in agreement with, but
expressed adamant opposition to, while also vacating protections
that should be afforded to her, without complying with her legal
right to due process (ruling on the complaint).
Wife’s Brief at 23-24 (formatting altered). Essentially, Wife claims that the
trial court violated her due process rights by granting Husband’s petition for
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special relief to enforce the agreed order, and vacating the temporary PFA
order without holding a hearing on the merits of her PFA petition.5 Id.“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018)
(citation omitted and formatting altered). It is well settled that “[p]rocedural
due process requires, at its core, adequate notice, opportunity to be heard,
and the chance to defend oneself before a fair and impartial tribunal having
jurisdiction over the case.” Garr v. Peters, 773 A.2d 183, 191 (Pa. Super.
2001) (citation and quotation marks omitted). “Parties may waive rights,
even due process rights and other rights of constitutional magnitude.” Tecce
v. Hally, 106 A.3d 728, 732 (Pa. Super. 2014) (citation omitted); see also
Pa.R.A.P. 302(a); Morgan v. Morgan, 117 A.3d 757, 762 (Pa. Super. 2015)
(explaining that “appellants may not raise issues for the first time in a Rule
1925(b) statement” (citation omitted)).
Here, the trial court concluded that Wife waived her due process claims
because she raised them for the first time on appeal. See Trial Ct. Op. at 14.
Nevertheless, the trial court addressed the merits of this claim, explaining that
Wife was accorded full due process rights throughout all of the
proceedings conducted by the trial court in this matter. First, a
temporary PFA order was entered by a Judge in an ex parte
proceeding on the same day that Wife filed her [PFA] petition.
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5 To the extent Wife is arguing that the trial court erred in rejecting her
interpretation of the terms of the agreed order, we have already addressed
that claim.
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Second, Wife had a full hearing on the merits of her petition before
a Judge on June 18, 2020 in which both parties were subjected to
direct and cross-examination. Thereafter, yet a third proceeding
was conducted before the undersigned on October 26, 2020 (on .
. . Husband’s petition for special relief to enforce settlement
agreement). During both the June 18th and October 26th
proceedings, Wife was represented by legal counsel. At no time
did her counsel raise a failure to afford Wife due process. Lastly,
although under no requirement to do so, the undersigned
considered the petition Wife filed a pro se, and post hearing, on
October 27, 2020. There is absolutely nothing in the record, or
even set forth in Wife’s concise statement for that matter, which
demonstrates that she was denied access to due process by this
court.
Id. at 14-15 (footnote omitted and some formatting altered).
We agree with the trial court that Wife waived her due process claims
because she raised them for the first time on appeal. See Morgan, 117 A.3d
at 762; Tecce, 106 A.3d at 732; see also Pa.R.A.P. 302(a). Even if Wife
properly preserved her due process claim, we agree with the trial court’s
conclusion that she is not entitled to relief. See S.T., 192 A.3d at 1160.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/01/2021
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