Alford, M. v. Hamburg, N.

J-S11018-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHELLE A. ALFORD : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : NEIL J. HAMBURG : No. 2826 EDA 2018

Appeal from the Decree Entered August 20, 2018 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 16-06997

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY MURRAY, J.: FILED MARCH 21, 2019

Michelle A. Alford (Wife) appeals from the decree in divorce incorporating the master’s report and recommendation as to equitable distribution of the parties’ marital estate. We affirm.

Wife and Neil J. Hamburg (Husband) appeared before an equitable distribution master, who after conducting a hearing, issued a report and recommendation as to equitable distribution on March 5, 2018. Wife filed timely exceptions and the trial court scheduled the matter for a one-day hearing. In the interim, the trial court ordered the parties to file briefs, received a motion in limine from Husband regarding expert testimony and sanctions, conducted an in-chambers conference, heard oral argument on the record, and ordered additional “letter briefs.” On August 9, 2018, the trial court dismissed Wife’s exceptions on the basis that Wife failed to comply with Pennsylvania Rule of Civil Procedure 1920.33 (concerning joinder of related

J-S11018-19

claims, equitable distribution and enforcement) and adopted the master’s report and recommendation as a final order of equitable distribution. Wife filed a motion for reconsideration which was denied by operation of law. A final decree in divorce was entered on August 20, 2018. Wife filed this timely appeal.

On appeal, Wife challenges the trial court’s dismissal of her exceptions to the master’s report, and specifically assails the trial court’s decisions relating to Rule 1920.33 of the Pennsylvania Rules of Civil Procedure. Wife states her issues as follows:

1. Whether the [t]rial [c]ourt committed an error of law and an abuse of discretion in limiting [Wife]’s testimony and precluding [Wife]’s expert witness from testifying pursuant to Rule 1920.33 where Appellee also failed to file his Pre- Trial Statement pursuant to Rule 1920.33.

2. Whether the [t]rial [c]ourt committed an error of law and abuse of discretion by raising, sua sponte, the issue of Rule 1920.33 where neither [Wife] nor [Husband] had brought the same before the [c]ourt.

3. Whether the [t]rial [c]ourt committed an error of law and abuse of discretion by requiring the parties to file written briefs before the [c]ourt but failing to inform the parties that the [c]ourt additionally required Pre-Trial Statements pursuant to Rule 1920.33.

4. Whether the [t]rial [c]ourt committed an error of law and abuse of discretion by imposing strict adherence to Rule 1920.33 where the Scheduling Order did not allow for compliance.

5. Whether the [t]rial [c]ourt committed an error of law and abuse of discretion by granting [Husband]’s Exceptions to the May 19, 2017 Discovery Order?

-2-

J-S11018-19

6. Whether the [t]rial [c]ourt committed an error of law and abuse of discretion by granting Husband’s Oral Motion in Limine and dismissing [Wife]’s Exceptions?

7. Whether the [t]rial [c]ourt committed an error of law and abuse of discretion by construing the Rules in a manner that penalized [Wife] for a non-prejudicial error?

8. Whether the [t]rial [c]ourt committed an error of law and abuse of discretion by failing to acknowledge and accept [Wife]’s Asset and Liability Worksheet attached to her written brief while acknowledging that [Husband] had referenced and attached as an Exhibit to his brief the Master’s Recommendation and Report in lieu of an inventory?

Wife’s Brief at 8-10.

At the outset, we observe that Wife did not raise all eight issues in her Pennsylvania Rule of Appellate Procedure 1925(b) statement. See Statement of Matters Complained of on Appeal, 9/5/18. Rather, Wife raised only the first six issues, almost verbatim, that she presents on appeal. See id.

It is well-settled that “[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). This Court recently summarized the prevailing law:

Pa.R.A.P. 1925(b) provides that a judge entering an order giving rise to a notice of appeal “may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal (‘Statement’).” Rule 1925 also states that “[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). In Commonwealth v. Lord, [] 719 A.2d 306 ([Pa.] 1998), our Supreme Court held that “from this date forward, in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to

-3-

J-S11018-19

Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” Lord, 719 A.2d at 309; see also Commonwealth v. Castillo, [] 888 A.2d 775, 780 ([Pa.] 2005) (stating any issues not raised in a Rule 1925(b) statement are deemed waived). This Court has held that “[o]ur Supreme Court intended the holding in Lord to operate as a bright-line rule, such that ‘failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.’” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc) (emphasis in original) (quoting Commonwealth v. Schofield, [] 888 A.2d 771, 774 ([Pa.] 2005).

“[I]n determining whether an appellant has waived issues on appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers an appellant’s obligation ... therefore, we look first to the language of that order.” In re Estate of Boyle, 77 A.3d 674, 676 (Pa. Super. 2013).

U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua, 193 A.3d 994, 996–97 (Pa. Super. 2018).

Wife’s seventh and eighth issues are waived. Although the trial court in this case did not enter an order requesting a Rule 1925(b) statement, Wife filed her Rule 1925(b) statement contemporaneously with her notice of appeal. Consequently, the trial court did not have the opportunity or the need to file such an order. Were we to conclude that Wife did not waive her seventh and eight issues, it would allow her, and others who contemporaneously file their Rule 1925(b) statements with the notice of appeal, to circumvent the issue preservation requirements of Rule 1925(b). We have stated:

It is of no moment that appellant was not ordered to file a 1925(b) statement. Appellant filed his statement contemporaneously with his notice of appeal. Accordingly, there was no need for the trial court to order him to file a 1925(b) statement. If we were to find that because he was not ordered to file a 1925(b) statement, he

-4-

J-S11018-19

has not waived the issues he neglected to raise in it, we would, in effect, be allowing appellant to circumvent the requirements of the Rule.

Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005). Furthermore, even if Wife did not waive her seventh and eighth issues, we would conclude that they are subsumed by Wife’s six preserved issues, which are likewise meritless.

Wife’s remaining six issues relate to the trial court’s dismissal of her exceptions to the master’s report and recommendation as to the equitable distribution of marital property. We recognize:

A trial court has broad discretion when fashioning an award of equitable distribution. Our standard of review when assessing the propriety of an order effectuating the equitable distribution of marital property is whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure. We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. This Court will not find an “abuse of discretion” unless the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record. In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. We measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights.

Moreover, it is within the province of the trial court to weigh the evidence and decide credibility and this Court will not reverse those determinations so long as they are supported by the evidence. We are also aware that a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.

-5-

J-S11018-19

Morgante v. Morgante, 119 A.3d 382, 386-87 (Pa. Super. 2015) (citations omitted).

With respect to Wife’s specific challenges to the trial court’s determinations as to Pennsylvania Rule of Civil Procedure 1920.33, there is little authoritative case law. However, we have explained:

. . . Pa.R.C.P. 1920.33, Joinder of Related Claims. Distribution of Property. Enforcement (b)(1) requires each party to file and serve on the appropriate party a pre-trial statement regarding assets of the marriage and pertinent information thereto (within 60 days of the master or court hearing), failing to do so (d)(1) except for good cause shown, shall bar a party from introducing any evidence in support or in opposition to claims for the matters not covered.

Anderson v. Anderson, 822 A.2d 824, 828 (Pa. Super. 2003). “It is clear that the rule implicates a filing and inventory of all marital property by both parties[.]” Id. at 829 (italics in original).

Additionally, we emphasize that “our Supreme Court has recognized that the Rules of Civil Procedure are essential to the orderly administration and efficient functioning of the courts.” Bouchon v. Citizen Care, Inc., 176 A.3d 244, 258 (Pa. Super. 2017) (quoting Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006)). “[W]e expect that litigants will adhere to procedural rules as written, and take a dim view of litigants who flout them.” Id. (quotations and citation omitted).

Instantly, and upon careful review, it is apparent that the trial court neither erred nor abused its discretion. Moreover, in addressing each of Wife’s six issues, the trial court has thoroughly and properly explained why the issues

-6-

J-S11018-19

lack merit. Accordingly, upon review of the parties’ briefs and the certified record, and mindful of prevailing legal authority, we conclude that the Honorable Patricia E. Coonahan, sitting as the trial court, has authored a detailed and well-reasoned opinion, dated November 30, 2018, which we adopt as our own in disposing of this appeal.1

Decree affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/21/19 ____________________________________________

1 The parties shall attach a copy of the November 30, 2018 trial court opinion in the event of further proceedings in this matter.

-7-

2016-06997-0109 Opinion, Circulated 03/01/2019 Page 10:31 AM 1

IN THE COURT OF COMMON PLEAS OF M()NTGOMERY COUNTY; PENNSYLVANIA CIVIL ACTION-LAW

MICHELLE A�. ALFORD SUPERIOR COURT DOCKET N0.28.26 EDA 2018

v •. LOWER COURT DOCKET NO. 20·16-06997

Nl:IL J. HAMBURG

OPINION

COONAHAN, .J. Noveml>er .,1,, '2� ., 2018. .I.FACTUAL, AND PROCEDURAL HISTORY:

On February 21, 201.8, Plaintiff/Appellcn1t/Wife ("Wife") and Defendai'1t/Appellee/Husband ("Husband") appeared for an Equitable Distribution

Hearing before Master Gordon Mair. On March 5,. 2018, Master Mair entered his Report and. Recommendation Upon Equitable. D.istribution, Ali mo nv, C.ounsel Fees

and Costs. On March 19, 2018, Wife filed timely Exceptions to the Master�s Report and Re.commendation. On April 18, 20181, the court issued an order directing that the matter be listed for a one (L) day Protracted Hearing. On May 16, 20182, the court issued ah order scheduling the matter for a one (1) day Protra.cted Hearing to be held onJuly 12, 201.8. at 9:00 a.m.

On June S, 201$3; the court, a.f:ter failing to receive any filings from the parties regardih.g the content of the de novo Equitable Distribution Exceptions to be heard on.July .12, 2018, Issued .an order directing counsel for the parties tosubmlt

1 2 3 Do�keted on April 19, zois. Oocketed . on M�y 17, 201. . 8. · Docketed on June 6, 2!)18. fii• 2016·06997-0109 t:VJ.'2018.9;30 AM # 12085384 Rcp�2;)535513 Fee:$0.00 Opinion · Main(Puti!io) ·Mon1CdPt0i1:tonoi�iy

--- -----·····-·-

20.16-06997-0109 Opinion . .Pc:1g·e: 2 hearinq briefs to the court at leastten {lO) days prior to the. scheduled hearing on July 12, 2018.

Off June 29; 20.18, counsel for Vi/i.fe., Dlana C. scbtrnmel, Esquire,.·filed Plaintiff':"s Brief In Support of. Exceptions and Trtal De Novo Regarding Equitable Distributl'on. On lune 29! 2() lEt,. Counsel for H usband, Sa ul t.evtt, Esq uire, sub rnltted a Brief irr Equitable Dlstrlbution.

On Juiy ii, 201.8, counsel {of- Husband filed a Motion in Umine to tlmttthe Testlmonv ofPlalntlff Michelle .A. Alford and Preclude Expert Testlrnony and for·

Sanctions. Counsel for Husband's Motid_r:1 in Limlne requested that the court issue an. order precluding Wife a.nq her expert witness from testifying at the July 12., 2018

hearing due to elleqed false statement .of facts. in Wife's pleadings .ano the fact that Wife had not 'provided. Husband wlth. an. expert· report for the expert she planned to

have testify atthe Ju!y 12, 2018 hearlnq. Ata conference in chambers and during. an oral arqument on the record, the court, suesponte, raised the questlon of cornpltance with Pa.R.C.P. 1920.33. Upon the court raising the issue of cornpllance With Pa'.R.C.P. 19·20.3.3·,.cot.1nser-fo.r Husband made an oral matron to dismlss Wife's. Equitable· DJstrH;,utfon Exc;eptions due to her failure to· comply with Pa.R.C.P. 1920.33.

Fo.llowin·g an oral arqumenton July l2, ·2018� the court Issued an order· taking the matter under advisement and directlnq counsel fat the .partles to submit letter briefs. to the court w.i.t�!ri seven (.7) days. from the date of that order. The order further allowed for counsel for Husband to respond to counsel for Wife's letter brief wlthtn three (3) days of its filing. Counsel for Wife ano counsel for' Husbartd filed their respective· letterbrtefson July· 19, zois.

On August 7, 20184,. the court entered an order gn;thting Husband's Motion. in Limine to limit the testimony of Wife and prohibit Wife's· expert Witness from testifying altoqether. The court further stated that pursuant.to Pa,JtC.P;_ 1920.33

and Pci.R.C.P .. 4019fc) (3), Plaintlff's March is, 20i8 Exceptions· to Recornmen·dation o.f Equitable-Distribution Master Report of Mar¢!} 5; .2n1a were

dlsrntssed. The court concluded by stating that The Master iii Equitable Dtstrtbutton's Report of March 5, 2018 is the finaJ order in equitable distribution in this matter and was to be. foll.owed by· the parties.

On August 14, ZOl8,. counsel for Vvife filed a Motion for Reconsideration of the court's order or August. 7, 201S.. The court did rn)tadcfress thts Motion for Reconsideration wit,'li_n thirty (3.0) days, therefore, the Motion for Reccnslderatlon was denied by operation of law pursuant to Pa.R.C.P. 15)..30.2.

On August 17, 20i85_: the court ISSLj.ed. c1 fi.nal Decre·e.. in Divorce. incorporating· the "terms, conditions and provistons ofthe Master in Equitable otstrtbutlon's Report ofMarch 5( 2018."

On .September 5, 2Cl18, counselfor Wife· flled a Notice of Appeal of the Auf!ust 7,. 2018 non-final order reg·1:1·rdJng_ Husband's Motion In Liinlne and the court's August l7, 2018 Divorce Decree. On September 5, 2018,. counsel for Wife filed a. Statement of Matter's··complained of on Appealpursuant to Pa, R.A.P. 1925.(b) stating as follows:

r. The Court commttted an errorefIawand an abuse of dlscretlon in. limiting Appellant's te!»timoriy and precluding Appellant's expert witness from testifying pursuanrto Rule j.920.�3 Wt.Jere Appellee .also failed to file hls Pre�Trial Sta�ement pursuant to Role 1920.33.

4 Docketed on August,9, 20l8. s Do.cket�d on August 20; 2018.

...., ····--··· , ,.,---·-·-----------------

2016:-06997 �0109 Opinion, Paqe 4

a ..Under Rule 1920.33 both parties are required to file an inventory and a pretrial statement, See Pa.R.C.P. 1920 .. 33. In the seminal case of .Anderso.n v. Anderson, 2003 Pa. Super, 152, 822 A. 2d 824 (Pa. Super. 2003), the Superior Court held that where both parties falled to include certain property in their pretrial statements one party could not inure the benefit of the other party's failure to comply when the beneflttinq party also had "unclean. hands;''-Anderson v. Anderson, 2003 Pa. Super. 152, 822 A. 2d 8.24 (Pa. Super. 2003) (emphasis added),

b. Becaµse neither party filed a Pre-Trial Statement Rule 1920.33 "must;' be construed. "to mean that ... failure of both parties to disclose can only be attributed to the lack of knowledge or unawareness of the true nature of the property, which is sufficient basis for finding goo.d causeshown," See, Welsh v. Welsh, 2013 Pa. super. Unpub. LEXIS 2598 (citing Anderson v. Anderson, 2003 Pa. suoer, 15.2, szz A.2d 824 (Pa. Super. 2003) (emphasis added).

c. More.over, Anderson and its' progeny stand for the clear proposition that Appellee should not benefit without penalty where he also failed to comply with Rule 1920.33. slnce neither party complied with Rule 1920.33 It was error for the Trial Court to effectively punish Appellant to Appellee's benefit by precluding her testimony and the testimony of her witness resulting in a dismissal of Appellant's Exceptions and, ultimately, the entry of the Decree iii Dlvorce.

d. Appellee's failure to complv with the provisions of'Rule 1920.33 operate to "nulllf[yJ the effect" so as to preclude the Trial Court from sanctioning Appell:ant.for her noncompliance. Anderson v. Anderson, 2003 Pa. Super. 152, 822 .A. 2d 824 (Pa. Super. 2003). To hold otherwise is. to punish Appellant to the benefit of Appeuee who effectively escapes being held accountable. for his failure to comply with the Rule.

2. The court committed an .error of .law and abuse of disc.retion by raising, sue sponte, the issue of R.ule 1920.33 where neither Appellant nor Appellee had brc>ught the same before the c�uirt.

a. The Court..committed an abuse of dlscretlon by raising the issue of Ru le .1920. 3 3 sue · sponte w hen neither Appellee nor Appellant had raised the same for the Court. AS. a general proposition; trial courts should not raise Issues sue sponte. See generally, Commonweettb v. Waters, 481 Pa. 85, 98 (Pa. 1980) (citihg Commonwealth v.. Branham, 467 Pc1. 605, 359 A; 2d 766 .(1976); Butler Area Sch. D, v; Butte» Ed. Ass'n, 481 Pa. 20, 391 A. 2d 1295 (1978); In re ouncen Trust, 480 Pc1. 608, :391 A. 2d 1051 (1978); Weigand v, WeiganrJ, 461 Pa. 482, 337 A. 2d 256 (1975)). . .

201.6-06997-0109 Opinion, Page 5

b. In Appellee's Motion in Limine, Appellee failed to raise either party's compliance with Rule 1920.33 as an issue before.the Trial Court. To wit, Appellee had an afftrrnative obligation to raise the issue of compliance with Rule 1920.33 for the Trial Court in orderferthe Trial Court to take action. But Appellee did not raise the issue, because presumably, AppeUee had also failed to comply with Rule 1920.33 and/or Appellee reasonably believed that the pre-trial Order entered on June 5, 2018 governed.

c: Because the Issue was not before the Trial Court it was error for the Trial Court to raise itsua sponte particularly where neither party (a) raised the issue, (b) had complied with the Rule, and ( c) each of the parties had both properly submitted their written briefs in accordance with the Pre.:Trial Order from June 5, 2018.

d. M.oreover; Appellee made oral motion moving to haveAppeltant's Exceptions dlsrnlssedj in his oral motion Appellee cited to Rule i920.33. only after the Trial Courtraised the. issue sue spente. As such Appellant was unfalrlv prejudiced by the Trial Court's actions, which effectively provided a basis for Appelleeto argue to have the matter dismissed. This operated as just the kind of "gotcha" moment the Superior court contemplated when finding that one party cannot inure the benefit of the other partv'sfatlure to comply with R1.Jle 1920. 33 without any sanctions for the benefiting party who also failed to comply. See generally, Anderson v. Anderson, 2003 PA Super 1.52 (Pa. Super; 2003-). · · ·

3 .. The Court committed an error of law and abuse o.f discretion by requiring the. parties to file written briefs before the Court but failing to inform the parties that the ccurt additionally required Pre-Trial Statements pursuant to Rule 1920.33.

a. The parties, pursuant to. Montgomery County Local Rule 1920.33f- Initial Hearing Statement-Pre. trial statement-Sanctions, each ·fifed an Initial Hearing Statement prior to an equitable distribution hearing before the Equitable Distribution Master. ·

b. Montgomery County Local Rule l920.33f requires the parties to file a Pre Tri.al Statement ''[n]o later than 20 days prior to the date of any subsequent hearing before the .equltable distribution master, each · party shall file the pre-trial statement, In the form required t,y subdivision (b) of this rule .. " Montgomery county Local Rule 1920.33f does not state that the parties are to file a fl.re-Trial statement prior to the date of a hearing in front of a judge.

c. The Trial Court; by Order entered.on June 5, 2018,. required the parties to file briefs ten (10) days In advance of a one (t) day

201a..:oe997 ·0109 Opinion, Page 6

protracted hearing scheduled for July 12, 201$. Said order provided no further .dtrective.

d, Both Appellant and Appelleetimely 'filed their Br1.efs on June 29, 2018 rn compliance with the Trial court'sJune S, 2.018 Order!

e. Mqreover, the mformetton provided by the parties in their written briefs ostensibly mirrors the information required under Rule 1920.33., That neither party submitted a Pre-Trial Statement operates as evidence that the parties reasonably believed that the Order entered by the Trial Courton Julie 5, 2018 governed. Put another way, both Appellant and Appel lee reasonably believed that the June �, 2018 Order controlled as evidenced by the fact that they both submitted robustwritten Briefs pursuant to said Order; ··

4. The Court committed an error of lav., and abuse o.f dlscretton by imposing strict adherence to Rule 1920.33 where the Scheduling Order .did not allow tor compliance,

a. The. matter was first scheduled on May 16, 2018 for a protracted hearing llsted for July 12., 2018. As a matter of practical effect neither party would effectively comply with the stringent .requirernents of Rule 1920.3.3 even if they had tried since at that time there were only fifty-six (56) days from the date of scheduling to the date .of the hearing. This further bolsters Appellant's reasonable contention that the Pre-Trial Order of June 5, 2018 requiring the parties to file briefs controlled. Moreover, the fact, again, that Appellee complied with .the June 5, 2018 Order and not Rule 1920 . .33 further .supports Appellant's position.

b, Additionally, the parties both fully complied with the requlrementsof Montgomery County Local Rule l920,33f. because the parties had throughout the pendencv of the proceedings complied with the operative rules, since the Trial Court entered a Pre-Trial Order requiring written brlefs; and as a. result of the msurttctent advance notice for either party to complv with the requirements of Rule 1920.33(b), it is error to hold Appellant to a standard that she could not, through no fault of her own, meet. Bec.ause the protracted hearing was held less than sixty (60) days from the 'date that the same was .scheduled Appellant's compliance was rendered impossible! ·

5. The. Court committed an error of law.and abuse of discretion by· granting Appellee's Exceptions to the May . 19, 2017 Discovery. Order.

a; The Trial Court has also erred by granting Appellee's Exceptions t.o the May 19, 2017 Discovery order as it overly prejudiced Appellant by precluding a large and extremely relevant portion of necessary documents for adrnlsslon, To proceed forward wlth an Equitable Distribution hearing

6 .............. ······················-·············-········-··--··-··········-···---··--·-······-----------------·--------------·--- --------

io.1e-oe997_0109 Opinion, Page.7

without such pertinent documents not only overly prejudices Appellc:int but truncates the Trial Court's ability to fully end fairly weight all factors prior to issuing a ruling.

6� The Court committed an error of law and abuse of discretion by granting Appellee's Oral Motion in Ltmtne and dismissing Appellant's Exceptions.

a. As. aforementioned, Appellant was unduly prejudiced by the Trial Court's action in granting Appellee's Oral Motion in Limine. To wit, the Trial Court erred in sanctioning Appellant for actlonsthat were· both (a) outside of her control and (b) held Appellant to an unfair standard that effectively rewarded Appellee Where both acted In the same manner, pertlcularlv where, as articul. ated in Anderson, supra, the ruleswere intended to provide an even playing filed lh the economtc dtssolutlon of the rnarrlaqe. See generally, Anderson v Anciers.on., 2003 PA Super 152. (Pa. Super. 2003).

b, Appel lee was in. no way prejudiced by Appellant's actions, To wit, Appellee's expert has been involved in the litigation almost since the matter's inception. App.ellee had multiple direct tnteractlcns with said expert and was familiar with the course and scope of his work. Most, if not all, of the documentation Apellanes [SIC] expert utllized in compiling his findings and purported testlrnonv was directly available .to .and provided by Appellee. Appellant's expert was merely synthesizing Appellee's directly provided fully accessible information. Moreover, Appellant's expert had been. present to. te.st.ify et.p rlo r proceedl ligs .end a 11 of the information utilized by the expert is, and has. been, abundantly available to Appellee .

. c. Lastly, the Trial Court erred in granting Appellee's Oral Motion particularly where the. Trial Court had less restrictive alternatives available to It such as continuing the matter and allowing both of the. parties adequate time to comply With Rule 1920.33(b). To dismiss Appellant's Exceptions effectively foreclosing herfrom putting forth an argument was unduly harsh and prejudicial under the circumstances, particularly where Appetlee would not have suffered undue harm in slrnply continuing the matter so that the parties could both be afforded an opportunity to comply. · ·

d. As a general prcposltlon courts should not preclude expert testimony in the absence of prejudice. See generally; Feingold v, Southeastern · P�nnsylvimfa Transportation Authority, 512 Pa. 567 (1986). In this instance Appellee was not prejudiced Where he had effectively had control of au the informaticm reviewed by Appellant's expert, Appell�nfs expert had been involved in the matter since near its inception, and Appellant had been consistently listed as a wltness prior to hearings.

---····----·····----------··· --- ·

2016-06997-0109 opinion, Page 8

On October 15, 2018, counsel for Wife filed an Application for Emergency Re lief with the Superior Court of Pennsylva nla. On October .16, 2018, the Superior court of Pennsylvania Issued a Per Curietti order denying counsel for Wife's October 15, 20l8 Application for Emergency Relief; stating that Wife did not .successfully demonstrate satisfaction of the requirements for issuance of a stay as set forth in Pa. Public Utility Cmm'n v. Process Gas Consumers Group; 467 A. 2d 805 (Pa.

1983),. namely, L likely to prevail ori the merits of an appeal; . 2. without the

requested relief, will suffer trreparabte injury; 3. the issuance of a stay will not substantially harm other Interested parties; and 4. the issuance .of a stay will not adversely affect the public interest. II. DISCUSSION:

This opinion is filed pursuant to and is in compliance with Pa.R;A.Pi 1925(a). The court addresses Wife'-s matters complained of on appeal .ad serteum.

Absent abuse of discretion on the part of the trial court in a divorce action, the Pennsylvania Superi<>r Court will not reverse an award of equitable distributi.on.

Fonzi v. Fonzi, 6.33 A. 2d 634; 6.36 (Pa. super, 1993); Hill v. Hill, 584 A. 2dl040, 1041 (Pa. Super. i991). Moreover, when reviewing the. record regarding equitable

distribution in a dlvorceactlon, the Superior Court shall be guided by the fact that .trtal courts have broad equitable powers to effectuate justice. Fonzi, supra.

i. The Court committed c;ai'l error of law and an abuse of discretion in limiting Appella.nt;s testimony and precluding AppeUant's expert witness from testifying pursuantto Rule 1920.33 vi,here Appellee also failed to file his Pre-Trial statement pursuant to Rule 1920.33.

a .. Under Rule 1920.33 both parties are required to file an inventory and a pretrial statement. See Pa�R.C.P. 1920.33. In the sernlnal case of Anderson v, Anderson, 2003 Pa. Super. 152, 822 Pi. 2d 824 (Pa. Super. 2003.), the Superior Court held that where both parties failed to

, ...... ... __ , __ ,,

201'5".06991:.0109 Opinion, Page 9

include certain property in their pretrial statements one party could not inure the benefit of the other party's failure to cornply when the benefitting party also had "unclean hands." Anderson v, Anderson, 2.003 Pa. Super. 152, 822 A. 2d 824 (Pa. Super. 2003) (emphasis. added) •

. b. B�cause neither party filed a Pre-Trial Statement Rule 1920.33 "must" be construed "to mean that. .. failure of both parties to dlsclose can .onlv be attributed to the lack of knowledge or unawareness of the true nature of the property, which is sufficient basis for finding good cause shown," See Welsh v. W(j/sh; 2013 Pa. Super. unpuo. LEXIS 2598 (citing Anderson v. Anderson, 2003 Pa. Super. 1�2� 822 A.2d 824 (Pa. Super. 2003) (emphasis added).

c. Moreover, Anderson and its' progeny stand for the clear proposition that Appellee should not benefit without penalty where he also failed to comply with Rule 1920.33. Since neither party complied with Rule 1920.33 it was error forthe Trial Court to effectively punish Appellant to Appellee's benefit by precluding her testimony and the testimony of her witness resulting in a dismissal of Appe Ila rit's Exceptions and, ultimately, the entry of the Decree in Divorce.

d. Appellee's failure to comply with the provisions of Rule 1920�33 operate to "nullif[y] the effect" so as to preclude the trial Court from sanctioning Appellant for her noncompliance. Andersen v. Anderson, 2003 Pa. Super. 152; 822 A. 2d 824 (Pa. Super. 2003). To hold otherwise is to punish Appellant to the benefit of Appellee who effectively escapes being held accountable for his failure to corrrplv with the Rule.

pa.R.C.P. 1920.33(a)-(a)(1) states that if a p.leadin.g or petition raises a claim for equitable division of marital property under the divorce code, the parties. are to provide the court and the opposing party with a list of assets and .liabilities of the parties prior to trial. Furthermore, Pa .. R.C.P. l920.33(b) statesthetwlthln the tlme requlredby order Of court or written directive of the master or, if none, at least 60 days before the scheduled hearing on the claim for equitable dlvtslon, the parties are to file and serve. upon the other party, inter alia, a pre-trial statement setting forth the assetsand liabilities of the parties. Pa.R.C.P. 1920.33(.c) states that ifa party fails to file .elther an inventory under subsection (a) of this rule or a pre-trial

2016:.06997':0109 Opinion; page 10 statement under subsection (b) of this rule, the court may make an appropriate order under Pa.R.C.P. 4Q19(c) governing sanctions. Finally, Pa.R.CP. 1920.33(d) states that a party who .fails to cornplv with subsection (b) of this rule may be barred from offering testimony or introducing evidence in support ofor in opposltton .to claims; for the matters omitted from the pre-trial statement

Here, in Husband'sbrlef filed on June·29, 2018, Husband states under

sectlon IV, Marital Assets and Liabilities, that the "Master's Report and Recommendation of March s, 2018 has .an accurate description ofthe parties' marital estate." Husband attached a copy of the Master's Report and

Recommendation to his June 29, 201.8 brlefto indicate to the court that Husband was adopting the Master's March 5, 1018 llst of assets and liabilities as his own

and, lt.was therefore Husband's opinion that those values should be considered by the court at the. July 12, 2018 bearing.

conversely; Wife, as the party taking exceptions to the report and recornrriendatlon of the Equitable Distribution Master, fa lied to attach to her June 29, 2018 brief,.. a copy of the assets. and llabllltles of the parties according to Wife. Similarly, unlike. Husband, Wife did not include a staternent.ln her June 29, 20.18 b rief adopting the assets and liabilities of the parties as set forth by the Equ ita ble Distr.ibution Master in his March 5; 2018 recommendation and report. Iii fact, a review of the docket indicates that at no point in time did Wife make a good faith effort to provide Husband, counsel for Husband, or the court with Wife's list of assets. and liabilities of the parties.

As the court pointed out to the parties .dufinq conference. in. chambers and on the record atthe July 12, 2018 oral argument; items that were previously filed

2016-06997-0109 Opinion, Page 1.1 before the Master are not relevant ln a de nova hearing and, therefore, it was

incumbent upon Wife to cornplv in good faith with Pa.R.C.P. 1920 .. 33. Forthe court to ignore Wife's ignorance of .and blatant non .. compliance with the rules. and allow

Wife to proceed with her ..exceptions would have: been unfair and unduly prejudicial to Husband, especially slnce Husband's June 29l 2018 brief addressed the parties' assets and liabilities desplte the fact that Husband was the hon-moving party.

Wife's analysis of Anderson v. Anderson, 2003 Pa. Super. 152, 822 A. 2d $24 {Pa. Super .. 2003.) and Welsh.v .. Welsh, 2013. P�:1. Super'. unpub, LEXIS 2598 are incorrect as both cases are clearly distinguishable from the facts in the instant case. Specifically, Anderson deals With one asset being left off both parties' inventories and Welsh deals with only part of an asset being left off the parties' inventories. ln the present matter, only Husband provided the court and the opposing party a list of assets and liabilities from the marital estate. Wife made no good faith effort to provide such a Ilstto the court and to opposing counsel. The cases Wife.cites do not involve the wholesale disregard of Pa.R.C. P. 1920.33 and are not applicable to the

facts of the instant case. Therefore, Wife.'s claim(s) as raised In paragraph (1} of her 1925(b) Concise statement are without merit, are not supported by the facts in this matter, and

should, therefore, be dismissed.

2. Th.e Court committed an error of law and abuse of discretion by raising, slia sponte, the issue of Rule 19.20�3-3 where neither Appellant nor AppeU�e had brc:>ught the same before the Court.

a.The Court corrrmittedan abuse of discretion by raising the lssue.of Rufe. 1920:33 sue sponte when neither Appellee nor Appellant had raised the serne for the Court; As a general proposition, trial courts should not raiseissues su« spotite. See generally, Commonwealth v, Waters; 481 Pa .. 85, 98 (Pa. 1980) (citing Commonwealth v. Branham, 467 Pa. 605,. 3.59 A. 2d 766 (1976).; Butler Ar�a Sch. .D. v. eutlet Ed. Ass'n, 48.t.Pa. 20, 391 A; zc 12.95

·------------·- .. -

2016-06997-0109 Opinion, Page 1.2

(1978); In re Duncan Trust, 480 Pa. 608� 391 A. 2d 1051 (1978); We.lgand v. Weigand, 461 Pa. 482, 337 A. 2d 256 (1975)).

b.In Appellee's Motion in timine, Appellee failed to raise either party's compliance with Rule 1920.33 as an issue before the Trial Court. To wit; Appel lee had an affirmative .obligation to raise the issue of compliance With Rule 1.920 .. 33 for the Tri.al Court in order for the Trial Court to take action, Bt.it. Appellee did not raise the issue, because' presumably, Appellee had also failed. to comply with Rule 1.920.33 and/or Appellee reasonably believed that the pre-trial Order enteredon June s, 2018 governed.

c: Because the issue was not before. the Trial Court it.was error forthe Trial Court to raise it suasponte·particula·rty where neither party (ajratsed the issue, (b) had complied with the Rule, and (c) each of the parties had both properly submitted their Written briefs ln accordance With the Pre-Trial Order from June 5, 2018.

d. Moreover, Appellee made oral rnotton moving to have Appellant's Exceptions dismissed; in his oral motion Appel lee cited to Rule 1920.33. only after the Trial Court ralsed the issue sue sponte. As such Appellant was unfairly prejudiced by the Trial Court's actions, which effectively provided a. basis for Appellee to argue to have. the matter dismissed. This operated as Just the kind of )'gotcha" momentthe Superior Court contemplated when find.ing that one party cannot inure the benefit of the other party's fallureto comply with Rule 1920.33 Without any sanctions for the benefiting party who also failed to comply. see generally; Anderson v. Anderson, 2003 PA Super 152 (Pa. Super: 2003). · · ·

The trial court is the best exponent. of its own court rules. Blessing v.

Philadelphia Rapid TrarisitCo., 188 A. 573,. 574 (1936); Saturen v. Gibraltar Mut. Ins; Co., 1.59 A. 2d 577 (1960).

Here, Wife argues that the trial court was not permitted to sue soonte raise the issue of compliance with Pa...R.C..P. 19Z:0.33. Wife is mistaken; As an officer of

the court, attorneys are requlredto be aware of and follow the rules of court, specifically, local and state rules of civil procedure .. It is the duty of the trial court to bring any non-compliance by pro se parties or their counsel to the attention of the parties.

2016-,06997-0.109 Opiriion, Page 13

ln the instant case, on June. 5, 2018, the court, after failing torecelve filings from the parties regarding the content of the Equitable Distribution Exceptions to be heard on July 12, 2018, issued an order directing counsel for the parties to submit hearing briefs to the court at least ten ( 10) days prior to the previously scheduled July 12� 2018 hec1ring. Wife, who filed the exceptions, was; therefore, charged with cidhering to the .Pennsvlvanle R1..Jles of Civil Procedure, namely Pa;R.C;P. 1920.33, requiring the parties to file an inventory of the parties' assets and

nabruttes prior to the Equitable Distribution Exceptions de novo hearlnn. Plain and simple, counsel for Wi.fe did not comply with this rule.

Therefore, Wi.fe;s clalmts) .as raised in paragraph (2) of her 1925(b;) Concise Statement are without merit, are not supported by the facts in this matter, and should, therefore, .be dismissed .

.3.The CQurt comrmtted an error .of law and. abuse of discretion by. requiring the parttes.to file written briefs.before the Court but failing to info.rm the parties that t'1e Court additionally required Pre-Trial Statements. pursuant to Rule. 1920.33�

a.The parties, pursuant to Montgomery County Local Rule 1920.33f-[rjitial Hearing Statement-Pre trial statetnent-sencttons, each filed an Initial .Hearing Statement prior to an equitable dlstribution hearing before the �quitable Distribution .Master.

b.r-tontqornerv County Local Rule l920.33f requires the parties to file a Pre Trial .statement "Inlc later than 20 days prior to the date of any subsequent hearing before.the equitable dlstrlbutlon master, each party shall file the pre- trial statement, in the form required by subdlvtslon (b) oft.hi!:i rule:" · Montgomery County Local Rule 1920.33f does not state that the parties are to flle.a Pre-Trial Statement prior to the date of a hearing in front .of a judge..

c.The Trial Court, by Order entered on June 5, 2018, required the parties to file briefs tentro) days in advance of a one (1) day protracted hearing scheduled for July 12, 2018. Said order provided no further directive ..

d.Both Appellant and Appellee timely filed their Briefs on June 29, 2018 in compliance With the Trial Court's June 5'., 2018 Order.

.. ····-····-··· ··-·--···--····-·--··-----------·--

·2016.:..<:)6997-0109 Opinion, Pc!!ge 14

e. Moreover, the inforrrration provided ·by the parties in their written brfefs ostensibly mirrors the information required under Rute . 1_920.33'.. That rrelther party submitted a Pre-Trial ,Statement operates .as .evldence that the parties reesonablv'bellevec 'that :the Order entered by. the Trial Court on June· 5, 2018. goVer'ned. Put another way, both Appellant and Appellee reasonably . bettevedthat the June 5, 20:1,8 Order controlled as evidenced by the fact that they both submitted robust written. Briefs pursuant.to '$.�id Order.

Here, while Montgomery County Local Rule of Civil Proce·dure.19.20.33(1)

pertalns to hearings before the Master in. Egurtable Distrtbutlon, the existerrce of 'this local rule does not neqate the exlstenceof Pa.R.C.P, 1920· .. $3 which statesthat

at least sl?<ty (60� days before the parties are. 'to.appear for a heartnq beforethe court on an equitable division matter, the parties are t� file- and serve upon the

etherparty a· pre-tnal statement settlnq forth, inter .alla� the· assets and· liahi!Iti·es. ofthe parties, expert. witness (es); lay Witness ·c es), andIncome of the parties. As. stated above, parties and their respective ..counsel are charqed with being .aware of .�hd following all state and Iota I rules of civil procedure. Husband complied With ·P'a.R,C.P. '1"920.33 whtle Wife did not.

Therefore, . Wife's clatmts) . . as. raised in: . paragraph . (3) ofher 192'.S(b) Concise

statement are without merit, are not supported by the facts i'n thls matter; and should, therefore, be dismissed.

4. The CQ1.1rt committed a.n error of law and abuse ofdlsereflon by imposing·strict adherence to Rule:1920.33.. where the s·cheduling Ord�r did not allow f<>.r compliance. ·

a.The matter was first scheduled on May 16, 2018 fo.r a· protracted hearing llsted forJuly 12, 2018. As a· matter ,of practical effectrrelther party wouJd effectively comply with _th.� stringent requirements of Rule 1920.3.3 even If they hadtrtec since atthatttme there were ontv fitt"y--esix (56) davsfrom the date of scheduling to the date. ofthe hearing; This further bolsters Appellant's reasonable cententlon that the. Pre-Trlal Order ofJune 5, 2018. requiring the parties tofile briefs -controlted, Moreover, the tact, aqaln, that Appellee complied with the June 5, :20.1s· Order and not Rule l920 .. 33·further supports Appellant's posltlon, . .

1.4.

-------------

2016-06997-0109 Opinion, Page 15

b .Add ltiona fly, the parties both fu Jly comp I ied with the require men ts of MontgQmery County Local Rule 1920.33f. because the parties had throughout the pendencv ofthe proceedings complied with the operative rules; smce the Trial Court entered .a Pre.,. Trial Order requiring written briefs, and as a result of the insufficient advance notice for either party to comply with the requirements o.f Rule l920.33(b); it is. error to hold Appellantto a standard that she could. not, through no fault of her own, meet. Because the protracted heating was held less than sixty (60) days from the date that the same was scheduled Appellant's. compliance was rendered impossible.

Here, at.a minimum, Wife was to make a good·faith effort to comply with Pa.R..C.P. 1920.3l, At the tlrne the court issued the June S, 2018 order directing

the parties to file pre-trial statements, the court had received no filings from either

partv; including Wife as the moving party, related tothe July 12l 2018 de novo Equitable Distribution Exceptions Hearing. F.urthermore, Wife is incorrect in stating

that Husband failed to comply with Pa.R.C.P. 1920.33.. As stated above, Husband's June 29, 2018 Pre-Trial Brief adopted and incorporated the Master in Equitable Distribution's Maroh 5, 2018 listln'g of the parties' assets and liabilities. Wife's pre-trial brief contained no such adoption and/or incorporation of the parties' assets and liabilities. Wife falsely states that throughout the pendencv of the proceedings, -she complied with the operative rules; However, as. stated above, at no point in time did Wife make a good faith effort to provide Husband, counsel for Husband, or the court with a listing of the. items Wife was required to provide pursuant to P,LR;C.P.

1920.33. As the court pointed out to the parties during conference in chambers and on

the record at.the July 12, 2.018 oral argument, items that were previously filed before the Equitable Distribution Master are hot relevant in a de novo Equitable Distribution Hearing, therefore, it was incumbent upon Wife as the moving party to comply In good faith With Pa.R.C.P... 1920;33. For the court to Ignore Wife's blatant

2016-06997-0109 Opinion; Page16 non-cornpllance with the rules and allow Wife to proceed with her exceptions would have been. unfair and unduly prejudicial to Husband, especially since Husband's June 29, 20.18. brief addressed the parties' assets and liapilities.

Therefore, Wife's claim(s) as raised Jn paragraph (4) of her 1925(b) Concise Statement are without merit; are not supported by the fads in this matter, and should, therefore, be dlsrnlssed.

5. The .Court committed an .error of law and abuse of discretion by granting App·e llee�s Exceptio.n s tothe May 19, 2017 Discov:ery Order,

a.The Trial Court has also erred by gr<lnting Appellee's Exceptions to the May 19, 2017 Discovery Order as it overly prejudiced Appellant by precluding a large and extremely relevant portion ofnecessary documents for admission. To proceed forward with an Equitable Distribution hearing without such pertinent documents not only overly prejudices Appellant but truncates the Trial court's ability to fully and fairly weight all factors prior to tssulnq a ruling.

Questions of admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of dlscretlon. Burch v. sears, Ro.ebuck and Company, 467 A. 2d 615, 621 {1983).

Here, on October 4, 2017, the court; upon conslderatlori of Husband's June 7, 2017 Exceptions to the May 19, 2017 Re.commendation of Equitable Distribution Master and after an oral i:lrgument with counsel for the parties on September 27, 2017, issued the following order:

Defendant's June 7., 2017 Exceptions to Recomme.ndation of Equitable Distribution Master are GRANTED in regard to #1.a. of the May 19, 2017 order. If there is ariy other discovery due6 to Plaintiff as to the 6 The May.19, .2017 order sur granted Piaintiff's April 7, W17 Motion to Compel Answersto Second Request for Production ofOocumei:its,and directed Defendant, and the.non-party lawfirrn of Hamburg &Golden, P.C. to.subrnlt the followirigto thePlaintiff:.1,a. Full electronic copy ofQuick Books Data file with.detailed · · transacttons from 2ob6 to current; b.AII bank .account statements from 2010 to current; c, Defendant's Z016 and 20i 7 vearto date pavstubs: d. Annual for,msW·2 and W-3 for Defendani; e. Corporate Income Tax Returns for . 200Tthrough 2011 and 2016 (when available);l Detali listing of all shareholders loan activity from 2007 to current; h. List Of any referral fees paid.from 2007 to current; l- All escrow account b�nk statementsfrom 2007 to current: 1. Def.ails of MMP Health Exchange, LLC as re(iected on.. the 2015 statement regar.ding final RCT-lOlfiling;

2016-06997-0109 Opinion, Page 17

remainder of the May 19, 20.17 order, the Defendant isto provide discovery forthwith. (See, Exhibit D-2).

BY THE C:OURT:

�--'-�·/s/������- PATRIClA E. CO.ONAHAN, J.

For Wife to claim that she was prejudiced by the court precluding the Q1.Hck

Books data is incorrect. The court's order of October 4, 2017 .dlrected Husband to forthwith provide to Wife a plethora of fimmcial discovery requests. After an oral

argument on September 27, 2017, the court's October 4, 2017 order granted Husband's exceptlcns only as to #1.a .. (Quick Books data). The court did not abuse its dlscretlon in. this regard since after a hearing it allowed Wife to receive volummous financial data from Husband whlle only granting dlscoverv exceptions to Husband with regard to the Quick Books data.

Therefore, Wife's claim(s) as raised in paragraph (5) of her 192�(b) Concise Statement are without merlt, are- not supported by the facts in this matter, and. should, therefore, be dismissed.

6. The Court committed an error of law and abuse of discretion by grc;lnting Appel lee's Oral Motion in Ltmin« arid dismissing Appellant's Exceptions.

a.As aforementioned, Appellant was unduly prejudiced by the. Trial Court's action in grcinting Appellee's Oral Motion in iimine. To Wit; the Trial Court erred in sanctioning Appellant for actions that were both (a} outside of her eontrol and (b) held Appellant to an unfair standard that effectively rewarded Appellee where both acted in the same manner, particularly Where, as articulated in Anderson, supra, the rules were Intended to provide an even playing filed tn the economic dissolution of the rnarriaqe. See generally, Anderson v Anderson, 2003 PA Super 152 (Pa. Super. 2003).

b.Appellee was in no way prejudiced by Appellant's actlons. To wit,Appellee's expert has been involved in the litigation almost since the matter's inception. Appel fee had multiple direct lnteractlons with said expert .and was familiar with the course and scope of his work. Most, if not all, of the documentation Apellant's [SIC]

2016-06997-0109 Opinion, Page 18

expert utilized in compiling his findings and purported testimony was .airectly available to and provided bY Appellee. Appellant's expert was merely synthesizing Appellee's directly provided fully accessibl.e information. Moreover, Appellant's expert had been present to testify at prior proceedings and all. of the information utilized by the expert is, and has been, abundantly available to Appellee.

c.Lastlv, the Trial Court erred in granting Appellee's Oral. Motion particularly where the Trial Court had less restrictive alternatives avallable to it such as continuing the matter ano allowing both of the parties adequate time to comply with Rule 1920.33(b). To dismiss Appellant's Exceptions effectively foreclosing her from putting forth an argument was unduly harsh and prejudicial under the circumstances, particularly where Appellee would not have suffered undue harm in simply continuing the matter so thatthe parties could both be .afforded an opportunity to comply. · ·

d. As a .g,eneral proposition courts should not preclude expert testimony in the absence of prejudtce. See generally, Feingold v; Southeastern Pennsylvania Transportation Authority,. 512 Pa. 567 (1986). .In this instance Appellee was not prejudiced Where he had effectively had control. ofall the information reviewed by Appellant's expert, Appellant's expert had been involved in the matter since near its inception, and Appellant had been consistently listed as a witness prior to hearings.

Pa;R,C.P. 1920.33(c} states that if a party fails to file either an inventory under subsectionta) of this rule or a pre-trial statement under subsection {b} of this rule, the .court may make an epproprtate order under Pa.R ..C.P·. 4019(c) governing sencttoris. Pa.R.C.P� 4019(c) states that the court may enter an order ref1Jsing to allow a dlsobedjent party to sup port or oppose designated claims for defenses or rnav prohibit such a party from introducing in evidence designated documents, things or testimony or from introducing evidence of physical or mental condttton or may enter an order striking out pleadings of parts thereof; finally, Pa.R.C.P� 1920.33(d) states that a party who fails to comply with subsection (b) of thts rule may be barred from offering testimony or Introductnq evtdence in support of or in opposition to claims for the matters omitted.

The Superior Court has routinely affirmed dismissals, default judgments or preclusion of evidence when a party does not comply with pretrial disclosure

------- ------·--·-·

201.6-06997-0109 Opinion, Page 19 requirements. See, e.q. Hein v. Hein, '717 A. 2d 1053 (1998 Pa. 'super.): Kruis v; .McKenna� 790 A. 2d 3.22 (2001); Luszcynski v. Bradley, 729 A. 2d 83 (1999 Pa.

super.). Pa.R.C.P. 1920.33 (b) (2) states that in an equitable division matter, the

parties are to provide the following:

(2) tne name and address ofthe expert witness (es) the party intends to call at trial. A report of each expert Witness listed.shall be attached to the pre- trtal.staternent. The report shall describe the expert's quaiifications and experience, state the substance of the facts and opinions to which the expert is expected to testify , and sumrnarlze the grounds for each opinion.

Wife's June 29, 2017 brlefdeliberatelv failed to address pa.R.C.P, 1920.33(b) (2) which relates to provld.ing reports of an expert witness prior to the hearing before the court. While Wife argues that her expert has worked and consultedfor Wife in the past; a review of thedocket in this matterlndlcates that at no polnt during the. parties; divorce matter has Wife presented testimony from .her expert. Therefore, there was absolutely no way that Husband could predict what Wife's expert was going to testify to arid what his report would contain Without Wife providing the expert report prior to trial. Pa.R.C.P. 1920.33(b) (2} exists to ensure that both parties in an equitable division matter receive a fair trial. Because Wife did not provide the expert report. to Husband prior to trial, Husband was precluded

from o.btaining his own expert if necessary, a scenario that would ha..ve set up a 'tri.al. .by ambush' had the court not granted Husband's Motion in Limine.

III.CONCLUSION:

The court r.espectfully requests that the Super1or Court of Pennsylvania dismiss Wife's appeal filed on September 5, 2018 and affirm the Divorce Decree entered on August 17, 2018 whi.ch incorporates the March 5, 2018 report of the

2016-.069Q7-0109 Opinion, Pag;e 20

Equitable DTstrlbution Masfer·as·well. asafflrrnthe . Court's Augllst . 7, 20113 order

. denying Wife-'s Eq).,iitable Dlstrlbuttcn Excep_tjohs.

BY THE COURT:

-: 1·:' l)/ -�<;:'- (��- , ,ltt�v PATRI.CIA E-. COONAHAN, j,.

Copies mailed li/.:b. /18 to: Diana C. Schirnmel, _Esqµire .-Saulo·. Levit, E:sqliire ·

• • .. • • ••• ' -, - - ,>'tl•h •• , -,.. • • .. , ,---··--············-·