B.J.S. v. D.F.K.

J-S81025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.J.S. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
D.F.K.
Appellee No. 1005 MDA 2017
Appeal from the Order Entered May 19, 2017
In the Court of Common Pleas of Columbia County
Domestic Relations at No: 00306-DR-2009, PACSES NO. 421111164
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 20, 2018
Appellant, B.J.S. (“Mother”), appeals from an order dated May 19, 2017
that recalculated the child support obligation of D.F.K. (“Father”). The trial
court lacked jurisdiction to enter this order, because the record in this case
had not yet been remanded to the trial court from Mother’s prior appeal to
this Court at 1293 MDA 2016. Thus, we quash Mother’s appeal from this
order. We also take the opportunity to make several observations that might
assist the trial court during further proceedings in this case.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S81025-17
PROCEDURAL HISTORY
I. Background. Mother and Father married in 1999 and separated in
2009. Two children were born during the marriage in 2002 and 2006.
In September 2009, Mother filed a complaint for child support and
spousal support. On November 4, 2009, Mother obtained a child support
award in the amount of $1,005.12 per month. The court did not award Mother
spousal support.
In early 2015, Mother filed a petition for modification. On December
17, 2015, a master held a hearing during which Mother presented testimony
regarding unreimbursed medical and tutoring expenses. Father testified
about his income from wrestling camps that he operated and defended
discrepancies between his total bank deposits and the income he claimed in
his federal taxes. Father attributed the discrepancies to money he earned
from investments and contributions by his paramour, L.C., to a shared credit
account. On March 24, 2016, the master held a second hearing in which
Mother and Father provided further detail regarding their income and child-
related expenses.
On March 31, 2016, the master authored a recommendation and report
awarding Mother child support of $764.68 per month. The master calculated
this award using an agreed-upon monthly earning capacity for Mother of
$2,164.70. The master determined that Father’s monthly earning capacity
was $5,096.92 by averaging his Schedule C net income for 2013, 2014 and
2015. Utilizing the support guidelines, the master arrived at a child support
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award of $955.98 per month, which it deviated downward pursuant to
Pa.R.C.P. 1910.16–5 due to substantial other income in Mother’s household
provided by her current husband, G.S. The master made an additional twenty
percent reduction pursuant to Pa.R.C.P. 1910.16–4(c) due to Father’s
significant period of partial custody.
Mother filed exceptions to the master’s recommendation and report, and
by order dated July 25, 2016, the trial court denied and dismissed her
exceptions. The court adopted the master’s report and confirmed the
previously calculated child support award. Mother appealed to this Court at
1293 MDA 2016. Mother filed a brief in this Court; Father did not.
II. This Court’s May 4, 2017 memorandum. In a memorandum
dated May 4, 2017, this Court vacated the trial court’s order and remanded
for further proceedings. We held:
[W]e find the court did not abuse its discretion in deviating from
the support guidelines in regards to Father’s substantial partial
custody or L.C.’s contributions to Father’s household expenses.
The court did err in calculating Father’s income, applying a
deviation from the guidelines based on G.S.’s 2013 income, and
failing to attribute to Father his proportionate share of the
childrens’ tutoring expenses. Accordingly, we vacate the support
order and remand for recalculation of Father’s net income and
support obligation in accordance with this memorandum.
B.J.S. v. D.F.K., 1293 MDA 2016, at 15-16 (Pa. Super., May 4, 2017).
We rejected Mother’s argument that the trial court erred in reducing
Father’s child support obligation by twenty percent due to “substantial or
shared physical custody.” Id. at 6-8. We held that the trial court’s ruling on
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this subject was supported by Father’s credited testimony that he exercised
custody over the children 43½ percent of the year. Id. at 7-8.
On the other hand, we held that the trial court erred in calculating
Father’s income. We reasoned:
Mother alleges that Father’s bank records showed deposits of
approximately $141,000[.00] for 2014. However, Mother
continues, Father only reported a net income of $68,000[.00],
after deducting his business expenses of approximately
$30,000[.00] . . . Hence, she concludes that the trial court
miscalculated Father’s income, and that he should be assessed a
higher monthly income than what was utilized in arriving at his
support obligation.
The master’s report and recommendation included the following
findings of fact with regard to Father’s income:
1. Father’s [wrestling] camp income was only [$]696[.00] in
2015, and no camps planned [sic] for 2016. Not assigning
income from this in making this recommendation.
2. [Father’s] business fluctuates. Gross income varies, but
expenses are similar year-to-year. Using average of past 3
years income in this recommendation.
3. [Mother] presented evidence of $141,000[.00] in cash flowing
through [Father’s] bank [account]. [Master was] not
persuaded that this was all from his business. However, for
sake of argument, even if there was some [additional] business
income, you need to subtract business expenses to get net.
That net would be subject to self-employment taxes in addition
to income taxes, resulting in much lower amount than the
$8,948 net/month proposed by [Mother].
Master’s Report, 3/31/16, at unnumbered 3. The trial court
adopted this position, observing, “[Father’s] income was properly
calculated . . . [t]he cash flow through [Father’s] bank accounts
does not alter this figure, as [Father] had adequate credible
explanations (e.g., holding his [m]other’s investments for
placements[.] )” Final Order, 7/25/16, at unnumbered 1 n.1. As
it stands, the master attributed Father’s additional income to his
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business, and the trial court attributed the difference to cash he
received on behalf of his mother. We find that the record does
not support either of these findings.
Instantly, Mother presented evidence of a discrepancy between
Father’s reported 2014 income and the deposits in his sole bank
account. N.T. Modification Hearing, 12/17/15, at 35–36, 70.
Mother noted that Father had deposits totaling $141,617.83 in
2014, but he had reported income from his business tallying only
$96,908[.00]. Id. at 70. When asked to explain the difference,
Father averred, “I may have liquidated some investments—moved
them into my account and reinvested them. Stuff like that.” Id.
at 71. Father conceded that some of the difference was due to
his income from wrestling camps, but when he was pressed to
explain the remainder, he stated, “I am thinking [I liquidated]
other investments.” Id. at 72. In addition, Father acknowledged
that half of a $26,661.13 deposit in 2015 was his portion of a
shared investment with his mother. Id.
We find the trial court erred in failing to include Father’s deposits
from his investments as income. Father’s testimony indicated that
he obtained large cash payments from his investments in 2014
and 2015. Although he did not explain the nature of his
investments, in light of the expansive definition of “income”
provided under the guidelines, we find Father’s proceeds from his
investments should have been included in the child support
calculation. See 23 Pa.C.S. § 4302 (income includes, inter alia,
“income derived from business; gains derived from dealings in
property . . . [and] dividends”); Spahr v. Spahr, 869 A.2d 548,
552 (Pa. Super. 2005) (observing, “When a payor spouse owns
his own business, the calculation of income for child support
purposes must reflect the actual available financial resources of
the payor spouse.”). Since Father testified that the discrepancy
in his cash flow and reported income was due to his investments,
the master erred in determining the discrepancy could be
explained as additional, yet unaccounted for, business income.
Moreover, the trial court erred in finding the money merely
represented his mother’s investments. Simply, the record does
not substantiate these conclusions.
For the same reason, the court erred in failing to consider Father’s
wrestling camp earnings, as minimal as they may be. Father
retained earnings from his work operating a wrestling camp.
Father, himself, proffered evidence indicating that he earned
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$1,143[.00] in 2014, and $696[.00] in 2015 as a result of those
efforts. Those earnings should be included in Father’s income
calculation.
Id. at 8-12.
We further held that the trial court abused its discretion in deviating
from the support guidelines by considering the income of Mother’s current
husband, G.S., because there was no evidence submitted into the record on
this subject. Id. at 13.
On June 13, 2017, this Court remanded the record at 1293 MDA 2016
to the trial court.
III. Trial Court’s May 19, 2017 opinion and order. On May 19,
2017, several weeks before this Court remanded the record to the trial court,
the trial court issued an opinion and order in response to our May 4, 2017
decision. The trial court stated that our decision required it to determine the
amount of Father’s investment income and wrestling camp earnings. The
court confined its analysis of these issues to the transcripts from the December
17, 2015 and March 24, 2016 hearings and documents admitted into evidence
during these hearings. It declined to admit other documentary evidence, such
as bank statements that Mother’s attorney used to cross-examine Father.
With regard to Father’s investment income, the court placed heavy
weight on (1) Father’s 2014 tax return, which reported $750.00 as dividend
income and $14.00 as capital gain income, totaling $764.00 and (2) Father’s
2015 tax return, which reported no dividend or capital gain income. The court
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also summarized Father’s testimony concerning his investment income as
follows:
Father testified that he had “other investments” and stated that
he transfers these investments through his checking accounts.
When referring to these “other investments,” Father was not
asked, nor did he state, the income level or principal value of those
particular investments. Father explained that he handles his
mother’s investments, and that these investments were
“underperforming” and he and his mother “decided to do
something about it. We closed it and she sent the money down
to me and I’m going to invest it down here in this area.” This
asset was in Father’s name since about 1993 or 1994, during
which time he was married to Mother. Father testified that he
intended to keep this asset for [his] mother and not liquidate it.
This amount was reflected in a deposit of $26,661.13 on Father’s
September 30, 2015 bank statement of which half was Father’s.
in attempting in good faith to explain deposits into his account two
(2) years after the fact with no preparation, Father testified: “I
may have liquidated some investments—moved them into my
account and reinvested them. Stuff like that . . . I don’t know. I
am thinking liquidating other investments.”
That is the extent of the record expressly dealing with “investment
income.”
Trial Ct. Op. 5/19/17, at 7-8.1
____________________________________________
1 In another passage, the court described Father’s testimony as credible and
attributed his inability to remember bank deposits to the passage of time:
Father ran all gross receipts from his business, all business
expenses and all personal disbursements in and out of his
checking account. It is beyond fairness to show someone in
business their checking account statement for a given month two
years prior and to expect them to recollect with complete certainty
the nature of a particular deposit at that time.
Id. at 2 n.1.
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The trial court “accept[ed] as credible and of greatest weight the
information on Father’s tax returns.” Id. at 8; see also id. at 6 (Father’s tax
returns were credible “given the reliable regularity of reporting interest,
dividends and investment sales via Form 1099’s and the penalties for not
reporting same”). The court thus found Father’s investment income to be
$764.00, or $63.67 per month.
With regard to wrestling camp income, the trial court determined that
Father made net income before taxes of $1,143.00 in 2014 and $696.00 in
2015. The court found that the drop in net income was the result of market
conditions, not Father’s voluntary choice, so it set Father’s earning capacity
for wrestling camp income at the 2015 level of $696.00 per year, or $58.00
per month.
Adding Father’s monthly investment income and monthly wrestling
income together, the court raised Father’s monthly earning capacity by
$112.67, from $5,096.92 to $5,218.59. The court stated:
No matter how one computes it, the record does not support a
conclusion by this fact finder (given consideration of the totality
of the record, consideration of only that evidence which we find to
be credible and according evidence deemed to be credibie the
weight we deem it to deserve[]) that Father made $141,617.00 in
deposits in 2014 . . . These deposits are not accepted as credible
proof, nor proof of any significant weight, of Father’s “investment
income.”
Id. at 5.
Next, the trial court determined:
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The Superior Court held that, despite evidence that Mother’s
husband is an attorney who is gainfully employed, we are not to
accord a deviation from the guidelines on account of Mother’s
husband’s income. We granted a 20% deviation in favor of Father
on two (2) bases: (1) [e]rroneously considering Mother’s
husband’s income; and (2) on the basis of Father’s summer child
care expenses. The latter basis was not disturbed on appeal in
that Mother did not preserve it as a ground for appeal in her
[e]xceptions. On the basis of Father’s child care expenses, it is
hereby determined that a 10% deviation is appropriate.
Id. at 9-10.
Utilizing the support guidelines, the trial court calculated Father’s child
support obligation as $1,033.01 per month, which it reduced by ten percent
to $929.71 per month. Id. at 11.
On June 15, 2017, Mother filed a notice of appeal. Mother raises the
following issues in her appellate brief:
I. Whether the trial court abused its discretion by failing to strictly
follow the Superior Court’s order to vacate the court of common
pleas’ order dated July 25, 2016 and to include all [of Father]’s
income including investment income and wrestling camp income
which has been calculated to be $141,617.83, as directed, when
calculating [Father]’s child support allegation.
II. Whether the trial court erred in awarding a substantial custody
deviation in this case in light of the lower court’s order granting
the inclusion in the record of the July 1, 2014 and June 1, 2015
custody orders which clearly demonstrates that [Father] does not
exercise 40% or more of the custody of the minor children.
III. Whether the trial court erred in awarding a child care
deviation in this case as it is not supported by any evidence
presented and it is unreasonable to award a deviation for child
care for children of this age.
IV. Whether the trial court erred when it failed to award
unreimbursed medical expenses for the children, which were
preserved by [Mother] by presenting the unreimbursed medical
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expense evidence to the Columbia County Domestic Relations
Office.
Mother’s Brief at 5.
DISCUSSION
The trial court lacked jurisdiction to enter the May 19, 2017 order,
because as of that date, the Superior Court had yet not remanded the record
back to the trial court. See Stanton v. Lackawanna Energy, Ltd., 915 A.2d
668 (Pa. Super. 2007); Bell v. Kater, 839 A.2d 356 (Pa. Super. 2003).
To place Bell and Stanton in context, we summarize relevant rules of
appellate procedure. Pa.R.A.P. 1701 states that “after an appeal is taken or
review of a quasijudicial order is sought, the trial court or other government
unit may no longer proceed further in the matter.” Pa.R.A.P. 1701(a). “The
effect of [Rule 1701(a)] is that once a party has properly appealed a decision
of the trial court, the trial court lacks jurisdiction to act further on the case.”
Commonwealth v. Moore, 715 A.2d 448, 452 (Pa. Super. 1998). Rule
1701(a) ceases to apply once the appellate court remands the record to the
lower court. Pa.R.A.P. 2591(a). Once the record is remanded, “the court or
other government unit below shall proceed in accordance with the judgment
or other order of the appellate court.” Id.
Pa.R.A.P. 1701(b) provides a limited number of exceptions to Rule
1701(a)’s general rule divesting the trial court of jurisdiction during the
pendency of an appeal. Specifically, the trial court may (1) “[t]ake such action
as may be necessary to preserve the status quo, correct formal errors in
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papers relating to the matter, cause the record to be transcribed, approved,
filed and transmitted, grant leave to appeal in forma pauperis, grant
supersedeas, and take other action permitted or required by these rules or
otherwise ancillary to the appeal or petition for review proceeding”; (2)
“enforce any order entered in the matter, unless the effect of the order has
been superseded . . .”; (3) grant reconsideration of the order which is the
subject of the petition if a timely motion for reconsideration is filed and the
trial court enters a timely order expressly granting reconsideration; (4)
“[a]uthorize the taking of depositions or the preservation of testimony where
required in the interest of justice”; (5) “[t]ake any action directed or
authorized on application by the appellate court”; and (6) “[p]roceed further
in any matter in which a non-appealable interlocutory order has been entered
. . . .” Pa.R.A.P. 1701(b).
Bell and Stanton provide illuminating illustrations of these principles.
In Bell, the defendant filed an untimely notice of appeal following entry of
judgment in favor of the plaintiffs. Subsequently, realizing that her appeal
was untimely, the defendant filed a petition in the trial court for leave to appeal
nunc pro tunc. The trial court granted the defendant’s petition; coincidentally,
on the same date, this Court quashed the defendant’s first appeal. The
defendant filed a second appeal in reliance upon the trial court’s order granting
her leave to appeal nunc pro tunc.
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This Court quashed the second appeal, reasoning that under Rule
1701(a),
[t]he trial court’s order . . . which granted [the defendant] leave
to appeal nunc pro tunc[] is a nullity because it was entered at a
time when the trial court did not have jurisdiction—i.e., the order
was entered after [the defendant] filed her first notice of appeal
with this Court and before the record was remanded to the trial
court pursuant to Pa.R.A.P. 2591(a). Rule 2591(a) indicates that
Rule 1701(a) “shall no longer be applicable to the matter” once
the record is remanded. Since the record had not yet been
remanded at the time the trial court entered its order granting
[the defendant]’s appeal nunc pro tunc, the trial court did not have
jurisdiction to enter such order and, therefore, such order is void.
See Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa.
Super. 2003) (concluding that trial court lacked jurisdiction to
convene a bail hearing and consider the merits of petition seeking
bail where record had not yet been remanded from appellate
court).
Moreover . . . we conclude that Rule 1701[(b)] provides no
exceptions that would have permitted the trial court to enter a
valid order granting leave to appeal nunc pro tunc following [the
defendant]’s filing of her first notice of appeal. In other words,
we have no basis upon which to conclude that the trial court’s
order granting leave to appeal nunc pro tunc is anything other
than a nullity.
Bell, 839 A.2d at 358.
In Stanton, a power company purchased an easement on an energy
company’s land and constructed a swing-arm gate on the easement. A ten-
year-old boy collided with the swing-arm gate while riding a motorbike. The
boy’s parents filed a personal injury action against, inter alia, the power
company. The power company moved for summary judgment on the ground
that it was immune under the Recreational Use of Land and Water Act
(“RULWA”), 68 P.S. §§ 477–1—477–8, which bars liability against owners of
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unimproved land who open that land without charge for recreational use by
members of the public. The trial court denied the power company’s motion
for summary judgment, but the power company obtained leave from this
Court to take an interlocutory appeal from the trial court’s order. This Court
reversed and remanded for entry of summary judgment, ruling that the power
company was an owner and that it did not act willfully or maliciously. On
March 3, 2003, the trial court entered an order granting summary judgment
to the company.
On March 13, 2003, the plaintiffs filed a timely petition for allowance of
appeal to the Supreme Court from this Court’s order of reversal. The Supreme
Court granted allocatur solely on the question of whether the energy company
was an owner under the RULWA. On November 23, 2005, the Supreme Court
upheld this Court’s decision that the company was an owner. In a footnote,
the Supreme Court observed that there was another issue that had not yet
undergone appellate review: whether the swing-arm gate constituted “land”
under the RULWA. The Court continued:
The Superior Court’s mandate in this case, which this Court
affirms, directs the trial court to enter judgment in favor of [the
power company]. Upon entry of that order, the [plaintiffs] will be
out of court, and will be free, if they so desire, to seek to appeal
that final order to secure appellate review of the question
concerning the swing-arm gate.
Stanton, 915 A.2d at 671 (citing Stanton v. Lackawanna Energy, Ltd.,
886 A.2d 667, 678 n.10 (Pa. 2005)).
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On December 3, 2005, the trial court entered a second order that
granted summary judgment in favor of the power company. On December 8,
2005, the plaintiffs appealed to this Court with regard to whether the swing-
arm gate constituted land under the RULWA. The power company argued that
the plaintiffs “waived” this issue by failing to take a timely appeal from the
trial court’s March 3, 2003 order. We rejected the power company’s
argument, because
[w]hen the trial court entered this order, the Superior Court had
not remanded the record to the trial court, nor could it have. Rule
2572(a) instructs that “[t]he record shall be remanded to the
court or other tribunal from which it was certified at the expiration
of 30 days after the entry of the judgment or other final order of
the appellate court possessed of the record.” Pa.R.A.P. 2572(a).
Additionally, the Rules prescribe that the pendency of, inter alia,
a petition for allowance of appeal shall stay the remand until the
petition’s disposition. Pa.R.A.P. 2572(b). If the Supreme Court
grants the petition for allowance of appeal, the Superior Court
Prothonotary must transmit the record to the Supreme Court.
Pa.R.A.P. 1122. Herein, [the plaintiffs]’ decision to file a petition
for allowance of appeal stayed the remand of the record to the
trial court and, once the Supreme Court granted the petition, the
Superior Court transmitted the record to the Supreme Court. The
Supreme Court did not return the record to the trial court until it
resolved [the plaintiffs]’ appeal. Thus, it would appear that the
trial court lacked jurisdiction to enter the March 3, 2003 order.
Stanton, 915 A.2d at 672.
We further held that none of the exceptions within Rule 1701(b) applied:
The trial court’s March 3, 2003 order did not preserve the status
quo or correct a formal error; the order declared that [the
plaintiffs] could not recover as a matter of law on claims that the
trial court had previously deemed worthy of trial. See Pa.R.A.P.
1701(b)(1), Note (stating that “[s]ubdivision (b)(1) ... is not
intended to permit fundamental corrections in the record”).
Further, the March 3, 2003 order did not enforce a prior order of
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the trial court, did not timely grant reconsideration, and did not
authorize depositions. Likewise, our Court did not direct or
authorize the trial court to enter the order while our Court retained
the record and awaited the filing of a petition for
reconsideration/reargument or for allowance of appeal. Finally,
as our Court had granted [the power company] permission to
appeal, the trial court did not have the authority to proceed under
the sixth exception.
Id. at 673. Thus, the trial court’s March 3, 2003 order was void. Id.
We further held that the trial court’s December 3, 2005 order was void:
the Supreme Court filed an opinion on November 23, 2005 that
affirmed the Superior Court’s February 26, 2003 order. The
Supreme Court remanded the record to the trial court on
December 19, 2005. See Pa.R.A.P. 2572(b); 2573. Nevertheless,
the certified record reveals that the trial court entered an order
granting [the power company’s] motion for summary judgment
on December 3, 2005, sixteen days before the trial court received
the record. As the remand of the record obviates the jurisdictional
impediments imposed by Rule 1701(a), see Pa.R.A.P. 2591(a),
and as no exceptions to Rule 1701(a) apply, we may only conclude
that the trial court lacked the authority to enter the order . . . The
December 3, 2005 order is a legal nullity . . . and cannot constitute
a final order for appeal.
Id. Because the December 3, 2005 order was void, “[the plaintiffs’] notice of
appeal, filed December 8, 2005, is premature. Although the trial court has an
obligation to enter the order granting the motion for summary judgment, it
must await the restoration of its jurisdiction before doing so.” Id.
Accordingly, we quashed the plaintiffs’ appeal as “prematurely filed.” Id.
In the present case, this Court remanded for further proceedings in its
memorandum filed on May 4, 2017. On May 19, 2017, before this Court
remanded the record, the trial court entered an opinion and order revising
Father’s support obligation. Under Rule 1701(a), and under Bell and
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Stanton, the trial court lacked jurisdiction to enter its opinion and order
because this Court had not yet remanded the record to the trial court. Indeed,
this Court could not have remanded the record on or before May 19, 2017,
because Pa.R.A.P. 2572(a) required us to retain the record until thirty days
after entry of our judgment. Further, none of Rule 1701(b)’s exceptions
applied. The May 19, 2017 opinion and order did not preserve the status quo
or correct a formal error, enforce a prior order of the trial court, timely grant
reconsideration, authorize depositions, or take any action that this Court
directed or authorized on application. Neither did the trial court enter its
opinion and order following an appeal from a non-appealable interlocutory
order. For these reasons, the May 19, 2017 opinion and order is a nullity,
Bell, 839 A.2d at 358; Stanton, 915 A.2d at 673, and we must quash
Mother’s appeal from this order.
Because the May 19, 2017 order is void, the trial court must again
decide Father’s support obligation after remand of the record, the event that
will restore jurisdiction in the trial court. Pa.R.A.P. 2591(a). We cannot direct
the trial court on what support decision to reach, for that would usurp the trial
court’s role as factfinder. We will, however, offer several points that the trial
court might consider during further proceedings.
First, the trial court stated in its May 19, 2017 opinion that (1) it found
Father’s testimony “credible” and placed heavy weight on his tax returns; (2)
this evidence showed that Father earned $764.00 in investment income in
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2014 and no investment income in 2015; and (3) therefore, Father’s annual
investment income was $764.00, or $63.67 per month for support purposes.
We note that our May 4, 2017 memorandum states: “Father’s testimony
indicated that he obtained large cash payments from his investments in
2014 and 2015.” B.J.S. v. D.F.K., 1293 MDA 2016, at 10 (emphasis added).
Because our memorandum is the law of this case, see Commonwealth v.
Starr, 664 A.2d 1326, 1331 (Pa. 1995), the trial court’s findings should be
consistent with this determination in our memorandum.
Second, in its May 19, 2017 opinion, the trial court confined its review
to the existing evidence and declined to admit further evidence or testimony
into the record. We note that our May 4, 2017 memorandum did not prohibit
the trial court from admitting additional testimony or documentary evidence,
e.g., the bank statements that Mother’s attorney used to cross-examine
Father or checks (if any) that Father deposited into his account. Thus, the
trial court might consider admitting additional evidence during further
proceedings. In Re Petition To Contest The General Election For District
Justice In Judicial District 36–3–03 Nunc Pro Tunc, 695 A.2d 476, 480
(Pa. Cmwlth. 1997) (absent express direction of appellate court to admit
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additional evidence on remand, admission of such evidence lies within trial
court’s discretion).2
Appeal quashed. Jurisdiction relinquished.
Judge Panella joins the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/20/18
____________________________________________
2“This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Maryland Cas. Co. v. Odyssey, 894 A.2d 750, 756 n. 2 (Pa. Super. 2006).
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