Com. ex rel. Myers, M. v. Cribbs, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
EX. REL. MELANIE SUE MYERS : PENNSYLVANIA
:
:
v. :
:
:
KYLE DAVEY CRIBBS A.K.A. :
CHARLOTTE REYNN CRIBBS : No. 150 WDA 2019
:
Appellant
Appeal from the Order Entered July 30, 2018
In the Court of Common Pleas of Jefferson County Civil Division at No(s):
588-2010 CD
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 23, 2019
Appellant, Kyle Davey Cribbs, also known as Charlotte Reynn Cribbs,
pro se, appeals from the order of the Civil Division of the Court of Common
Pleas of Jefferson County, entered July 30, 2018, that denied her “Petition for
Writ of Error Coram Nobis.” We affirm.
On June 15, 2010, at the current civil docket number, No. 2010-00588
(“No. 10-588”), Appellant’s mother, Melanie Sue Myers, filed a petition for an
order against Appellant pursuant to the Protection from Abuse Act (“PFA”).1
The Petition for Protection from Abuse (“PFA Petition”) stated: “Due to
[Appellant] being a minor child[2] and Melanie Myers, having primary custody
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1 23 Pa.C.S. §§ 6101-6122.
2 Appellant’s date of birth is May 23, 1994.
* Retired Senior Judge assigned to the Superior Court.
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of the minor child, [Appellant]’s father, William L. Cribbs will be [Appellant]’s
guardian in this matter.” PFA Petition at ¶ 14.f. Nothing in the certified record
indicates that Mr. Cribbs received notice of the PFA Petition or of Myers’s
request that he serve as Appellant’s guardian at the final PFA hearing. The
trial court granted a temporary PFA order later that same day.
On June 25, 2010, following a hearing, the trial court entered a final PFA
order. Myers had “appeared personally” at the hearing. Final PFA Order,
6/25/2010. Appellant, who was 16 years old at the time, “though properly
served, failed to appear” at the hearing. Id. There is no record of an attorney,
guardian, or other advocate appearing at the hearing on Appellant’s behalf,
and nothing in the certified record indicates that Mr. Cribbs was given notice
of the hearing. No motion for reconsideration or notice of appeal was filed
from the final PFA order.
On January 14, 2011, pursuant to a request from Myers,3 the trial court
entered an amended final PFA order, allowing Appellant “to have phone and
face to face contact with [Myers] for the sole purpose of participating in
treatment plans and family counseling.” Amended Final PFA Order,
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3 The amended PFA order states that “Plaintiff’s request for an amended final
protection order is granted[,]” Amended Final PFA Order, 1/14/2011, but no
written petition for amendment or modification of the final PFA order appears
in the certified record. The amended final PFA order additionally states that
Myers “appeared personally” but makes no mention of whether Appellant
appeared or if he had been served with notice of the hearing. Id. Yet,
Appellant makes no claim that she lacked notice of the amended final PFA
order.
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1/14/2011, at ¶ 5.4 Appellant was still 16 years old at the time of the amended
final PFA order hearing, and, again, there is no record of an attorney,
guardian, or other advocate appearing at the hearing on Appellant’s behalf.
No motion for reconsideration or notice of appeal was filed from the amended
final PFA order.
On July 15, 2011, counsel for Myers sent a letter to the trial court asking
to “have the Protective Order dismissed.” Letter from J.D. Ryan, Esquire, to
the Honorable John H. Foradora (July 15, 2011). According to the letter: “At
the time the Order was requested, Ms. Myers felt it was proper and necessary.
She indicated to me that she late learned that there were issues she was
unaware of that caused problems between her and [Appellant]” and “no longer
feels this Order is necessary” as she “is no longer in fear of abuse.” Id.
On July 19, 2011, the trial court entered an “Order to Vacate,” stating:
“upon Plaintiff’s motion to withdraw or discontinue this action, 1. This matter
is withdrawn without prejudice. 2. . . . All costs have been paid. 3. The Final
Order (filed on Jan 14, 2011) is hereby vacated.” Order to Vacate,
7/19/2011 (emphasis in original).
On March 19, 2014, at Docket Number CP-33-CR-0000624-2013
(“No. 624”), Appellant pleaded guilty to manufacture, delivery, or possession
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4Neither the final PFA order in 2010 nor the amended final PFA order in 2011
explicitly stated that the temporary PFA order was vacated or voided.
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with intent to manufacture or deliver a controlled substance (“PWID”) 5 and
was sentenced to eight to sixteen months of confinement followed by twenty
months of probation. On August 3, 2016, Appellant was found to have violated
her supervision and was sentenced to three years of probation.
Also on March 19, 2014, at Docket Number CP-33-CR-0000626-2013
(“No. 626”), Appellant pleaded guilty to an additional count of PWID6 and was
sentenced to eight to sixteen months of confinement followed by twenty
months of probation, to be served consecutively to her sentence at No. 624.
On August 3, 2016, Appellant was found to have violated her supervision and
was sentenced to three years of probation, concurrent to her probationary
sentence at No. 624.7
On January 3, 2018, after another allegation that Appellant had again
violated her supervision at both No. 624 and No. 626, Appellant appeared for
a Gagnon I8 hearing with counsel present, during which she waived her right
to said hearing. Notice of Gagnon I Hearing, 12/28/2017; Gagnon Order,
1/4/2018.
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5 35 P.S. § 780-113(a)(30).
6 Id.
7 In addition to the certified record for No. 10-588, we also received the full
certified records for both No. 624 and No. 626 for our consideration during
this appeal.
8 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation hearings).
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That same day, at Docket Number CP-33-CR-0000540-2017 (“No. 540-
17”), Appellant pleaded guilty to endangering welfare of children and simple
assault.9 She was sentenced to an aggregate judgment of sentence of six
months and one day to four years of confinement.10
On January 17, 2018, the trial court held a Gagnon II11 violation of
probation (“VOP”) hearing for No. 624 and No. 626. During that hearing, the
VOP court stated:
And as I pointed out at your sentencing a couple of weeks ago,[12]
you’ve got this simple assault against the [biological] mother of
your children[, A.S.W.]. She has a PFA against you. Your father
has a PFA against you. . . . I think there were seven times that,
through collect calls, you and [A.S.W.] had contact in violation of
the PFA in which she indicated you would have to call collect. You
also attempted to call her a number of other times and also your
father, who has a PFA. . . .
And I think, because of this type of assaultive behavior and
threatening behavior, getting PFA’s from your family members,
from the people you love, that it shows you could and are
potentially dangerous to individuals, especially those closest to
you.
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9 18 Pa.C.S. §§ 4304(a)(1) and 2701(a)(1), respectively.
10 Appellant’s appeal from this judgment of sentence was quashed by this
Court. Commonwealth v. Cribbs, No. 1243 WDA 2018, unpublished
judgment order at 1 (Pa. Super. August 15, 2019).
11The notes of testimony are improperly labelled as a “Gagnon One Hearing.”
N.T., 1/17/2018, at 1.
12The bench of the Jefferson County Court of Common Pleas consists of only
one judge, the Honorable John H. Foradora, who oversaw all of Appellant’s
aforementioned final PFA, plea, sentencing, and Gagnon/VOP hearings.
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N.T., No. 624 and No. 626, 1/17/2018, at 5-6. Appellant was sentenced to
an aggregate term of 10 to 20 years of confinement, to be served
consecutively to her sentence at No. 540-17. Id. at 7. Following the denial
of her motion for reconsideration, Appellant appealed to this Court.13 Her
appellate counsel filed a petition to withdraw and an Anders14 brief
challenging the discretionary aspects of her sentence, and, on May 7, 2019,
this Court affirmed her judgment of sentence and granted counsel’s petition
to withdraw. Commonwealth v. Cribbs, No. 278 WDA 2018, unpublished
memorandum (Pa. Super. filed May 7, 2019) (panel reconsideration granted,
July 8, 2019).
On July 20, 2018, at No. 10-588, Appellant filed a Petition for Writ of
Error Coram Nobis (“Coram Nobis Petition”). The petition pleaded as follows:
11.) [Appellant] signed the acknowledgment of service of
Original Process [of the PFA Petition], absent the presence of an
Adult or Legal Guardian.
12.) A Hearing was scheduled for sometime after before this
Court.
13.) [Appellant] was not able to attend this Hearing because, at
the time, [Appellant] had no legal guardian, or even an adult, to
care for [Appellant]. [Appellant] had no means or resources of
adequate transportation at the age of sixteen (16). . . .
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13 Appellant’s combined appeal of No. 624 and No. 626 pre-dated
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). See Commonwealth
v. Cribbs, No. 278 WDA 2018, unpublished memorandum at 3 n.4 (Pa. Super.
filed May 7, 2019).
14 Anders v. California, 386 U.S. 738 (1967).
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16.) Consequently, a Judgment by Default was entered against
[Appellant], for failing to appear, in favor of the Plaintiff,
Melanie Sue Myers for a three (3) year [PFA] Order.
17.) Shortly thereafter, [Appellant] violated the aforemention[ed
PFA] Order and was held in Indirect Criminal Contempt of Court
by th[e trial c]ourt.
Coram Nobis Petition at ¶¶ 11-13, 16-17. Appellant then requested that “the
Temporary [PFA] Order and Final Order of [PFA] must be deemed voidable.”
Id. at ¶ 29.
On July 30, 2018, the trial court denied the Coram Nobis Petition. In its
order, the trial court asserted:
The [trial c]ourt would note . . . that no record of an indirect
criminal contempt related to this case appears in CPCMS (Civil
Pleas Case Management System), only one related to the matter
in which [A.S.W.] was the plaintiff, which stands as further
evidence that petitioner believes errantly that the above-
captioned matter has any negative effect on [her] circumstances.
Order, 7/30/2018.
On August 6, 2018, Appellant filed this timely appeal. 15 The trial court
entered its opinion on December 5, 2018, in which it acknowledged that “it
did in fact find [Appellant] in contempt for violating the terms of the PFA order
entered at this docket number.” Trial Court Opinion, filed December 5, 2018,
at n.1. However, this correction did not change the trial court’s ultimate
decision denying the Coram Nobis Petition.
Appellant now presents the following issues for our review:
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15Appellant filed her statement of errors complained of on appeal on
November 21, 2018.
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A. Whether the [trial] court erred by concluding that the
Appellant was not held in indirect criminal contempt of court when
the Appellant was indeed held in indirect criminal contempt as a
juvenile delinquent and placed under a consent decree?[]
[B.] Whether the Commonwealth is properly named as a
respondent to this case?[]
[C.] Whether this pro se application on direct appeal is a question
of extraordinary circumstance and the law?[]
[D.] Whether the [trial] court erred by concluding that the
Appellant does not still suffer the prejudice of the invalid [PFA
order] when the [trial] court considered said order upon the
record?[]
Appellant’s Brief at 1-2 (issues re-ordered to facilitate disposition;
unnecessary capitalization omitted).
Preliminarily, we must discuss whether the trial court had authority to
address any challenges to the orders entered in No. 10-588. If the orders
were not in effect at the time that Appellant filed her Coram Nobis Petition,
then said petition would be moot.
We first note that the Order to Vacate only explicitly states that the
“Order (filed on Jan 14, 2011) is hereby vacated.” Order to Vacate,
7/19/2011 (emphasis in original). The Order to Vacate does not clearly
mention that the final PFA order dated June 25, 2010, was also vacated.
Nevertheless, the Order to Vacate also states: “This matter is withdrawn
without prejudice.” Id. This sentence implies that all entries in this action
were withdrawn, which would include the final PFA order dated June 25, 2010.
Even assuming the trial court intended the Order to vacate both the
June 2010 final PFA order and the January 2011 amended final PFA order, we
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must consider whether the trial court had jurisdiction to vacate these orders
at the time it entered the Order to Vacate. Pursuant to Commonwealth v.
Charnik, 921 A.2d 1214 (Pa. Super. 2007), we conclude that the trial court
had no jurisdiction by July 2011 to vacate either the June 2010 final PFA order
or the January 2011 amended final PFA order. The facts of Charnik are as
follows:
Janine H. Charnik (Wife) filed a PFA petition against Charnik on
November 17, 2004. On December 14, 2004, following a hearing,
Judge Mark E. Mascara granted Wife’s petition and entered a final
PFA order excluding Charnik from the marital residence. . . . On
July 22, 2005, Wife filed a petition to withdraw the PFA order. The
trial court, on that date, entered an order setting aside the final
PFA order that it had entered seven months prior.
Id. at 1215-16. This Court then explained:
A petition may be withdrawn; a final order, however, requires a
judicial act to be set aside or vacated. Although the trial court
entered an order setting aside the final PFA order, it had no
jurisdiction to do so. See footnote 3 . . .
3 The PFA order entered on December 14, 2005 was a final
order, from which no motion to reconsider or appeal was
filed. The trial court, therefore, had no jurisdiction to set
aside that order seven months later. See
Pa.R.C.P.1901.7(b); Pa.R.C.P.1930.2(a); see also
Pa.R.C.P.1901 et seq. (proceedings pursuant to the PFA are
governed by the Rules of Civil Procedure). Once a final
order or judgment is entered, an appeal must be filed within
30 days, or the trial court must expressly grant
reconsideration within 30 days. If either of these two events
does not occur, the judgment is final. Absent extraordinary
cause, the order is not subject to collateral attack. . . . This
did not occur here. . . . There is no intervening motion to
reconsider or notice of appeal. Charnik makes no claim here
that he had no notice of the final PFA order. We conclude,
then, that the trial court had no authority to withdraw the
PFA order.
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Id. at 1217 & 1218 n.3 (emphasis in original). This Court further observed:
“We note, too, that the facts of this case illustrate a typical sequence in an
abusive relationship; the abuse, the remorse, the forgiveness, and the
repetition of that cycle.” Id. at 1221.
The procedural history of the current action is analogous to Charnik’s.
The trial court entered the final PFA order on June 25, 2010, and an amended
final PFA order on January 14, 2011.16 Compare Final PFA Order, 6/25/2010,
and Amended Final PFA Order, 1/14/2011, with Charnik, 921 A.2d at 1215-
16. No motion for reconsideration or notice of appeal was filed within 30 days
of the entry of either order. See Charnik, 921 A.2d at 1218 n.3. There is no
suggestion in the certified record that Appellant had no notice of the final PFA
order or the amended final PFA order. See id. Following a request by the
petitioner, Myers, to withdraw said PFA order, the trial court vacated the
amended Final PFA order and withdrew the entire matter on July 19, 2011 –
more than one year after the 2010 final PFA order and over six months after
the amended final PFA order. Compare Letter from J.D. Ryan, Esquire, to
the Honorable John H. Foradora (July 15, 2011) and Order to Vacate,
7/19/2011, with Charnik, 921 A.2d 1215-17 & 1218 n.3. Hence, as in
Charnik, 921 A.2d at 1217 & 1218 n.3, the trial court had no jurisdiction to
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16 We need not reach the question of whether the trial court had authority to
enter the amended final PFA order, as it does not affect our analysis pursuant
to Charnik.
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enter the Order to Vacate more than 30 days after the entry of either PFA
order. For this reason, the Order to Vacate was improperly entered, and the
trial court had the authority to address a challenge to this final PFA order.
See id. at 1218 n.3. The Coram Nobis Petition therefore was not moot, and
we may address Appellant’s substantive issues raised on appeal.
Nonetheless, we perceive that Appellant’s first issue raised on appeal is
moot, now that the trial court corrected the procedural history in its opinion.
Trial Court Opinion, filed December 5, 2018, at n.1. Additionally, whether the
Commonwealth was properly named as the respondent in this case is
immaterial, because the Commonwealth has elected not to file a brief to this
Court. Letter from Jeffrey D. Burkett, Esquire, District Attorney of Jefferson
County, to Nicholas Corsetti, Esquire (May 22, 2019).
Appellant’s remaining issues concern the denial of her Coram Nobis
Petition.
The term “coram nobis” is defined as “in our presence” or “before
us,” and “[t]he essence of coram nobis is that it is addressed to
the very court which renders the judgment in which injustice is
alleged to have been done, in contrast to appeals or review
directed to another court....” Black’s Law Dictionary 304-05 (5th
ed. 1979). In 1945 this Court explained the nature of the writ as
follows:
The writ of error coram nobis is an ancient common law writ,
the purpose of which is to bring before a court a judgment
previously rendered by it for review or modification, on
account of some error of fact . . . affecting the validity and
regularity of the proceedings, and which was not brought
into the issue at the trial thereof.
Commonwealth v. Morrison, 158 Pa.Super. 311, 313, 44 A.2d
850, 851 (1945) (citation omitted; emphasis added). This Court
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suggested that the writ would lie, for example, where the error
concerned the status of a party, such as an infant, or where an
accused was forced to plead guilty owing to a well-founded fear of
mob violence. Id. . . . The writ of error coram nobis is generally
regarded as an extraordinary remedy.
Commonwealth v. Fiore, 665 A.2d 1185, 1189-90 (Pa. Super. 1995).
Appellant improperly filed her Coram Nobis Petition at the instant docket
number, No. 10-588. A writ of coram nobis was a remedy for criminal cases,
and Appellant has filed the instant petition in a civil matter.
Assuming Appellant had filed the Coram Nobis Petition pursuant to No.
624 and No. 626, her petition would still have been properly denied, because
“the granting of a petition for [writ of error coram nobis] is not proper unless
the extrinsic facts were not only not discovered at the time of trial, but also
not discoverable by the petitioner at such time by the exercise of due
diligence.” Commonwealth v. Mangini, 386 A.2d 482, 490 (Pa. 1978). The
procedural history of No. 10-588 was known to Appellant at the time of her
VOP hearings, and Appellant could have informed the VOP court of any
necessary corrections to the history of PFA orders against her during her VOP
sentencing hearing, in her motion for reconsideration, or as part of her direct
appeal of No. 624 and No. 626. A fact known to Appellant was obviously
discovered and discoverable by her, and the granting of her Coram Nobis
Petition thus would have been improper. See id.17
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17 All that being said, nothing in the record indicates that the VOP court
actually considered the record from No. 10-588, including the PFA orders
therein, when sentencing Appellant; instead, the record shows that the VOP
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For the reasons given above, all of the challenges raised by Appellant
on appeal are meritless, and we affirm the order denying Appellant’s Coram
Nobis Petition.18
Order affirmed.
Judge Dubow Concurs in the Result.
Judge McLaughlin Concurs in the Result.
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court only considered the PFA orders protecting A.S.W. and Mr. Cribbs. N.T.,
No. 624 and No. 626, 1/17/2018, at 5-6; see Mangini, 386 A.2d at 490 (“A
writ of error coram nobis[’s] . . . function is to bring before the court rendering
the judgment matters of fact which if known at the time the judgment was
rendered, would have prevented its rendition.”).
18 To the extent that the existing record at No. 10-588 could potentially
prejudice Appellant in future proceedings, see Appellant’s Brief at 15-21,
nothing in this decision precludes her from filing a motion to void all the PFA
orders from No. 10-588 pursuant to Varner v. Holley, 854 A.2d 520, 523-24
(Pa. Super. 2004) (“when a minor is a party to a civil action, . . . [the] minor
shall be represented by a guardian who shall supervise and control the conduct
of the action in behalf of the minor”; accordingly, a “PFA order is voidable”
where the respondent “was a minor unrepresented by a guardian” (emphasis
added)). See also Linde v. Linde Enterprises, Inc., 118 A.3d 422, 431–
32 (Pa. Super. 2015) (distinction between a “void” and a “voidable” action);
Oswald v. WB Public Square Associates, LLC, 80 A.3d 790, 797 (Pa.
Super. 2013) (“clear distinction between judgments which are simply
‘voidable’ based upon mere irregularities and those which are ‘void ab initio’”);
Graziani v. Randolph, 887 A.2d 1244, 1251–52 (Pa. Super. 2005) (Klein, J.,
concurring) (explaining confusion between terms “void” and “voidable”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2019
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