Blasetti, M. v. Blasetti, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARYBETH R. BLASETTI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD J. BLASETTI :
:
Appellant : No. 1228 EDA 2020
Appeal from the Decree Entered April 30, 2020
In the Court of Common Pleas of Delaware County Civil Division at
No(s): No. CV-2018-000328
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 07, 2022
Richard J. Blasetti (Husband) appeals from the divorce decree entered
in the Delaware County Court of Common Pleas. Husband contends he was
denied his right to a hearing de novo following the entry of the divorce hearing
officer’s report and recommendation concerning the equitable distribution of
the martial estate he shares with Marybeth R. Blasetti (Wife). Husband also
requests that, in the alternative, the matter be remanded to the trial court to
establish a complete record on his nunc pro tunc motion. See Appellant’s
Brief at 10. Based on the following, we affirm.
Husband and Wife were married on November 24, 1989, and have two
adult children who currently reside with Wife. See Trial Ct. Op., 8/31/21, at
1-2. Husband is an attorney, employed by Delaware County as a public
defender, and is engaged in private practice as a solo practitioner. See id. at
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1-2. Wife is a dental hygienist and a preschool teacher’s aide. See id. at 1.
Husband resides at an apartment in Wayne, Pennsylvania, while Wife lives in
the former marital residence, also located in Wayne. See id.
Wife filed a complaint in divorce on January 16, 2018, under 23 Pa.C.S.
§ 3301(c) (mutual consent) and (d) (irretrievably broken). See Trial Ct. Op.
at 2. Husband responded by a filing a counter-affidavit and asserting that the
parties were not living separate and apart and the marriage was not
irretrievably broken. See id. Pursuant to a court order, a special master,
Robert A. Turco, Esquire, was appointed and a hearing was held. On June 12,
2019, the special master issued his report and recommendations, in which he
“concluded that the overwhelming evidence conclusively demonstrated that
the marriage was irretrievably broken” and that date of separation was
January 17, 2018. Id. at 2 (record citation omitted). Thereafter, on July 9,
2019, the court entered an order, stating that the marriage was irretrievably
broken, the date of separation was January 17, 2018, and grounds for divorce
had been established. See Order, 7/9/19.
On December 10, 2019, an equitable distribution hearing was held
before Hearing Officer Edward T. Lawlor, Jr., Esquire (Divorce Hearing Officer).
See Trial Ct. Op. at 2. Husband appeared pro se and Wife was represented
by counsel. See id. The Divorce Hearing Officer later entered his report and
recommendation (DHO Report) regarding the division of the parties’ marital
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estate, which was dated January 30, 2020, and docketed February 4, 2020.1
The February 4th DHO Report was accompanied by a “Notice of Filing of
Divorce Hearing Officer’s Report and Time in Which to File an Appeal to the
Court.” The notice provided the following, in relevant part:
Please be advised that pursuant to Delaware County Rule
1920.54, the following apply:
(ii) The parties to a decision of an Equitable Distribution Master
shall have the right to Appeal from the Decision of the Equitable
Distribution Master by the filing of a Request For Hearing De Novo
within twenty (20) days of the date of entry of the Decision.
Notice of Filing of Divorce Hearing Officer’s Report and Time in Which to File
an Appeal to the Court, 2/4/20, at 1 (unpaginated).
Subsequently, on February 26, 2020, “with no demand for a hearing de
novo pursuant to Pa.R.C.P. 1920.55-3(c)2 filed of record, the [c]ourt entered
the [February 4th DHO Report] as an [o]rder.” Trial Ct. Op. at 2. The order
was docketed on March 2, 2020 (March 2nd Order).
Four days later, Husband filed a pro se pleading titled, “Defendant’s
Appeal From Master’s Report,” which concisely stated: “The Master’s Report
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1 The marital estate consisted of the marital residence, a county retirement
fund, and two individual retirement accounts. The Hearing Officer
recommended “the assets in this case shall be divided on a 55/45 basis in
favor of Wife.” Divorce Hearing Officer’s Report and Recommendation,
2/4/20, at 2 (unpaginated).
2As will be discussed in more detail infra, Delaware County Rule 1920.54 and
Pa.R.C.P. 1920.55-3(c) are substantially similar in language, i.e., that the
parties have 20 days to request a hearing de novo.
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signed by The Honorable Stephanie H. Klein as motion judge on February 26,
2020 and filed on March 2, 2020 is hereby appealed on March 6, 2020.”
Defendant’s Appeal From Master’s Report, 3/6/20, at 1 (unpaginated).3
On April 30, 2020, the court entered a divorce decree, ordering that
Husband and Wife were divorced from the bonds of marriage.
On May 21, 2020, Husband filed another pro se document titled “Motion
to Set Aside Divorce Decree/For Reconsideration of Divorce Decree/For Appeal
of Equitable Distribution Master’s Recommendations Nunc Pro Tunc.”4 Before
the court could dispose of the motion, Husband filed a counseled notice of
appeal from the divorce decree.5
In a per curiam order, this Court quashed the appeal as untimely.6 See
Order, 7/24/20. Husband then filed a petition for allowance of appeal to the
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3 In its Pa.R.A.P. 1925(a) opinion, the court notes the “docket entry is
mislabeled and does not indicate any type of appeal. For 03-06-2020 the
docket entry reads: ‘Motion – Motion for Appointment of Special Master.’” Trial
Ct. Op. at 3 n.1.
4On June 16, 2020, Wife filed a motion to quash in response to Husband’s
motion.
5 Husband complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
6 A Rule to Show Cause was originally issued in this matter as to whether the
appeal was untimely because instead of filing an appeal, Husband filed the
motion for reconsideration. Husband responded that the judicial emergency
orders of the Supreme, Superior, and Delaware County Courts suspended time
calculations such that his appeal should be considered timely. In the per
curiam order, this Court indicated the appeal was required to be filed within
(Footnote Continued Next Page)
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Pennsylvania Supreme Court. In April 2021, the Supreme Court granted
Husband’s petition and summarily vacated this Court’s order, determining that
the Delaware County court’s judicial emergency order was ambiguous. See
Blasetti v. Blasetti, 252 A.3d 594 (Pa. 2021). The matter was remanded to
this Court and is now pending before us.
Husband identifies the following “issues” in his “Statement of Questions
Involved:”
1. The entry of the final Decree in Divorce in this matter was done
so in error and was a nullity in that:
a. An Equitable Distribution Master’s Report dated February
4, 2020, was never forwarded to [Husband] nor did he ever
see a copy of same;
b. On or about February 26, 2020, an Order was entered by
the [court] adopting the [Divorce Hearing Officer]’s
recommendations in equitable distribution as the final
Equitable Distribution Order in this matter;
c. Almost immediately thereafter, [Husband] filed an Appeal
from the [February 4th DHO Report] wherein he sought to
appeal the . . . report and the Order of the [trial court] dated
February 26, 202[0] but docketed March 2, 2020;
____________________________________________
30 days of May 1, 2020, but since the 30th day fell on a Sunday, the appeal
was required to be filed no later than June 1st. Additionally, the Court stated
that “review of the Second Order Extending The Thirty-Second (32nd) Judicial
District’s Past Declared Emergency order of April 28, 2020 extended the
Judicial Emergency in Delaware County until June 1, 2020. Thus, the appeal
period was not affected by the Judicial Emergency order of April 28, 2020.”
Order, 7/24/20. As a result, this Court indicated that since the appeal was
not filed until June 4th, three days late, it did not have jurisdiction over the
April 30th divorce decree, entered on May 1st. See id.-5-
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d. On March 9, 2020, despite the pending Appeal from the
[February 4th DHO Report], a Praecipe to Transmit Record
was filed by [Wife]’s attorney indicating no related claims
pending based upon [the court]’s [March 2nd] Order;
e. The Praecipe to Transmit did not reflect the pending
Appeal of the Hearing Officer’s recommendations and, as
such, entry of the final Decree based upon an erroneous
Praecipe to Transmit Record renders that Decree a nullity;
f. Subsequently, a final Decree in Divorce was entered by
the [court] on April 30, 2020, and received in the afternoon
mail by Husband on May 5, 2020;
g. Immediately after securing counsel, Appellant filed a
Petition on May 21, 2020, to set aside the Divorce
Decree/For Reconsideration of the Divorce Decree/For
Appeal of Equitable Distribution Hearing Officer’s
Recommendations Nunc Pro Tunc;
h. Presumably based upon the current pandemic and limited
work staff, the Motion to Set Aside still has not been
processed and assigned to a Judge for hearing as of the date
of the dictation of this 1925(b) statement;
2. Appellant has been deprived of his substantive and procedural
due process rights as alleged in the Petition to Set Aside and for
Leave to Appeal Nunc Pro Tunc in that Appellant did not receive
notice of the [Divorce Hearing Officer]’s hearing and, as such was
unable to address issues that were not adequately addressed by
the Hearing Officer in the Hearing Officer’s Report;
3. Based upon the pandemic, Appellant’s ability to appeal the
[Divorce Hearing Officer]’s Report, the final Order from [the
court], and the final Decree in Divorce, have all been substantially
and significantly hampered due to the pandemic and the resultant
work stoppages and/or slowdowns in the judicial system;
4. Appellant is entitled to a hearing de novo on his Equitable
Distribution Appeal for the reasons recited hereinabove in full at
length;
5. Entry of the final Decree based upon the pendency of a request
for Appeal de novo from the Hearing Officer’s Recommendations,
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which had not been resolved of record prior to entry of the final
Decree, renders that final Decree a nullity.
Appellant’s Brief at 4-6 (footnote omitted).
However, in the argument section of his brief, Husband focuses on two
issues – his right to a hearing de novo and in the alternative, his request that
the matter be remanded to the trial court to establish a complete record. See
Appellant’s Brief at 10. We will confine our analysis to those two claims.
We note that Husband’s first argument is contingent on the question of
whether he has properly preserved the claim. Husband asserts that he is
“entitled to a hearing de novo on his equitable distribution appeal based on
the procedural machinations which [led] to the inappropriate entry of the final
Decree in Divorce.” Id. at 11. He notes that nunc pro tunc relief may be
granted where there is a breakdown in the court’s operations through a default
of its officers. See id. at 12. Moreover, he states “it is understood that
procedural rules are not ends in themselves, and that the rigid application of
those rules does not always serve the interests of fairness and justice[,]”
which is why Pennsylvania Rule of Civil Procedure 126 was adopted – to give
courts the latitude to overlook any procedural defect that does not prejudice
a party’s rights. Id. at 13.
Turning to his case, Husband alleges that he never received a copy of
the February 4th DHO Report. See id. at 14. He states that after he received
the court’s March 2nd Order, which entered the report and recommendation
as a court order, he immediately filed a pro se appeal of the DHO Report. See
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id. Moreover, he asserts that this pleading “was incorrectly listed on the
docket as [a] Motion for Appointment of Special Master rather than a Demand
for Hearing De Novo.” Id. Husband states “any casual observer of the docket
would not have identified Husband’s appeal; however, this pleading effectively
placed all parties on notice that the February 4, 2020[,] report [and
recommendation] was being appealed. This clerical error mislabeling the
appeal as a Motion for Special Master enabled the Delaware County Divorce
Administrator to process the defective Praecipe to Transmit.” Id. at 14-15.
Husband maintains that the “systemic failure surrounding the lack of notice of
the Divorce Hearing Officer’s Report and the error in correctly labeling [his]
appeal effectively deprived [him] of his substantive and procedural due
process rights.” Id. at 15. Additionally, he states that because he did not
receive notice of the report and recommendation, he “was unable to address
issues that were not adequately addressed” in the report, “including, but not
limited to, the appropriate valuation of the marital residence.” Id. Husband
concludes that “[t]hese breakdowns in the court’s operations are precisely the
type of situations meant to be remedies by nunc pro tunc filings and the liberal
application of the civil rules as provided by” Rule 126. Id. at 16.
We begin with the procedural rules governing hearing officer procedures
in divorce proceedings. As the trial court mentions, “It is well established law
that to preserve issues for appeal related to a Master’s Report[,] a party must
file exceptions or file a written demand for a hearing de novo.” Trial Ct. Op.
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at 5 (citations omitted). See Pa.R.C.P. 1920.55-2(b) (“Within 20 days of the
date of receipt or the date of mailing of the hearing officers report and
recommendation, whichever occurs first, any party may file exceptions to the
report . . . .”) and 23 Pa.C.S. § 3321 (“The court may appoint a master to
hear testimony on all or some issues . . . and to make recommendations and
return the same to the court, in which case either party may demand a hearing
de novo before the court.”).
Pennsylvania Rule of Civil Procedure 1920.55-1 states:
(a) Matters referred to a hearing officer for hearing shall proceed
as prescribed by Pa.R.C.P. No. 1920.55-2 unless the court by local
rule adopts the alternative procedure of Pa.R.C.P. No. 1920.55-3.
(b) The president judge or the administrative judge of Family
Division of each county shall certify that all divorce proceedings
which are referred to a hearing officer in that county are
conducted in accordance with either Pa.R.C.P. No. 1920.55-2 or
Pa.R.C.P. No. 1920.55-3. . . .
Pa. R.C.P. 1920.55-1.
The trial court indicates Delaware County has adopted Rule 1920.55-3.
See Trial Ct. Op. at 8. Pennsylvania Rule of Civil Procedure 1920.55-3
provides, in relevant part:
(c) Within 20 days of the date the hearing officer’s report is mailed
or received, whichever occurs first, any party may file a written
demand for a hearing de novo. If a demand is filed, the court
shall hold a hearing de novo and enter a final decree.
(d) If no demand for de novo hearing is filed within the 20-day
period, the court shall review the report and recommendation and,
if approved, shall enter a final decree.
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Pa.R.C.P. 1920.55-3.7
As the trial court points out, this case is similar to Sebastianelli v.
Sebastianelli, 876 A.2d 431 (Pa. Super. 2005). There, the appellee-wife
filed a complaint in divorce seeking, inter alia, equitable distribution. See id.
at 432. Following an equitable distribution hearing, the appointed master filed
a report and recommendation. See id. Neither party filed exceptions. See
id. Rather, the appellant-husband filed a petition for special relief, wherein
he alleged that appellee-wife improperly removed funds from the custodial
account for her own personal use. See id. The court entered a divorce
decree, and specifically incorporated the master’s report and
recommendation. See id. The court thereafter dismissed appellant-
husband’s petition for special relief. See id. The appellant-husband then filed
a notice of appeal. See id. A panel of this Court affirmed, concluding
appellant-husband “should have raised his issue in a timely exception to the
master’s report and that Husband’s failure to do so results in waiver of his
claim.” Id.____________________________________________
7 Likewise, as mentioned by the trial court, Delaware County Local Rule
1920.54(k)(ii) provides similar language. See Trial Ct. Op. at 6 (“The parties
to a decision of an Equitable Distribution Master shall have the right of appeal
from the decision of the Equitable Distribution Master by the filing of a request
for Hearing de novo within twenty (20) days of the date of entry of the
Decision.”).
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Turning to the present matter, the DHO Report was docketed on
February 4, 2020. The notice attached to the DHO Report informed the parties
that they had the right to appeal the decision by filing a request for a hearing
de novo within 20 days of the date of the decision. See Notice of Filing of
Divorce Hearing Officer’s Report and Time in Which to File an Appeal to the
Court at 1. Therefore, the parties had until February 24th to file a request for
a hearing de novo. Husband did not file a request for a hearing de novo within
that time period.
Rather, on March 6, 2020, he filed a pro se pleading, titled “Defendant’s
Appeal From Master’s Report.” A review of the document reveals that
Husband did not set forth any explicit language requesting a hearing de novo,
but merely stated he wanted to appeal the March 2nd order that confirmed
the DHO Report. See Defendant’s Appeal From Master’s Report at 1.
Furthermore, as the trial court properly notes, even if Husband’s March 6th
pleading could be construed as a demand for a hearing de novo, it was not
filed until 11 days after the deadline had run pursuant to Pa.R.C.P. 1920.55-
3, thereby still making it untimely. See Trial Ct. Op. at 6.8
____________________________________________
8 Additionally, Husband’s subsequent May 21, 2020, filing titled “Motion to
Set Aside Divorce Decree/For Reconsideration of Divorce Decree/For Appeal
of Equitable Distribution Master’s Recommendations Nunc Pro Tunc,” which is
substantively closer in form to a demand for a hearing de novo, also faces the
same fate as it is facially untimely. See Pa.R.C.P. 1920.55-3(d).
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As indicated above, Husband alleges that he never received a copy of
the DHO Report. However, a review of the record reveals that the Divorce
Hearing Officer mailed the DHO Report to the same address that is listed on
the March 2nd order for Husband. Additionally, there was no indication on the
docket that any mailings were returned. See Docket, 2/4/20 and 3/2/20; see
also Trial Ct. Op. at 11. As such, the record does not support Husband’s
contention that there was a breakdown in the court’s operations through a
default of its officers, and that he should be afforded the remedy of a liberal
application of the procedural rules.
We recognize Husband was acting pro se at the time the DHO Report
was filed and the March 2nd Order was entered. It is well-settled that “[a]ny
layperson choosing to represent himself [or herself] in a legal proceeding
must, to some reasonable extent, assume the risk that his [or her] lack of
expertise and legal training will prove his [or her] undoing.” Smithson v.
Columbia Gas of PA/ NiSource, __ A.3d __, __, 2021 WL 3483301 at *4
(Pa. Super. Aug. 9, 2021). Nevertheless, it merits mention that Husband is a
practicing attorney and therefore, should be familiar with legal nuances, such
as the procedural rules and the civil docket.
Accordingly, Husband’s failure to file a timely written demand for a
hearing de novo from the DHO Report results in a waiver of his first claim.
See Sebastianelli, 876 A.2d at 432; see also Pa.R.A.P. 302(a) (“Issues not
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raised in the trial court are waived and cannot be raised for the first time on
appeal.”).
As for Husband’s second claim, Husband requests this Court remand the
matter for trial court to make a complete record. See Appellant’s Brief at 17.
By way of background, Husband filed his “Motion to Set Aside Divorce
Decree/For Reconsideration of Divorce Decree/For Appeal of Equitable
Distribution Master’s Recommendations Nunc Pro Tunc” on May 21, 2020,
which the trial court treated as a motion for reconsideration. Before the trial
court could dispose of that motion, Husband filed his notice of appeal to this
Court on June 4th. While the appeal was pending, the trial court sent a letter
to this Court, stating:
The Trial Court scheduled a hearing on the Motions for July 14,
2020. The Notice of Appeal was perfected in the Superior Court
and another Common Pleas Judge entered a Pa.R.A.P. 1925 (b)
request to [Husband]. However, this matter merits a Hearing in
the Trial Court on [Husband]’s nunc pro tunc Motion in order to
make a trial record as to [Husband]’s notice of the Equitable
Distribution Master’s Recommendation. Therefore, the
undersigned is requesting this matter be remanded in order to
establish a more complete trial record.
Letter from the Honorable Linda A. Cartisano to Benjamin D. Kohler, Esq.,
7/9/2020, at 1-2 (unpaginated).
In its Rule 1925(a) opinion, the court9 correctly noted that “[e]xcept as
otherwise provided or prescribed by law, a court upon notice to the parties
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9 It merits mention that the trial judge who issued the Rule 1925(a) opinion
is the same judge who penned the July 9th letter.
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may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.” 42 Pa.C.S. § 5505. See Trial Ct. Op.
at 3 n.2. “The mere filing of a motion for reconsideration, however, is
insufficient to toll the appeal period.” Valley Forge Ctr. Assocs. v. Rib-
It/K.P., Inc., 693 A.2d 242, 245 (Pa. Super. 1997) (citation omitted).
Furthermore, “[i]f a trial court fails to grant reconsideration expressly within
the prescribed 30 days, it loses the power to act upon both the petition and
the original order.” Id. (citations omitted). Since the trial court did not
expressly grant Husband’s motion within the prescribed time, it was
precluded from considering the motion and requesting this Court remand the
matter. Accordingly, we find this argument unavailing and need not address
it further.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2022
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