J-A17035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES KWAME OPPONG                          IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ROSEMOND N. OTI

                        Appellant                  No. 3083 EDA 2015


                 Appeal from the Decree August 21, 2015
           In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): 8538 May Term, 2011


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                    FILED OCTOBER 21, 2016

     Appellant, Rosemond N. Oti (“Wife”), appeals pro se from the divorce

decree entered in the Philadelphia County Court of Common Pleas, which

resolved all economic issues between Wife and Appellee, Charles Kwame

Oppong (“Husband”).     Specifically, Wife challenges the court’s August 21,

2015 order precluding her from offering any testimony/evidence at the trial

de novo as a sanction for failing to comply with the relevant rules of civil

procedure. We affirm the divorce decree, vacate the preclusion order, and

remand for further proceedings.

     The relevant facts and procedural history of this case are as follows.

The parties married in New York on March 12, 1996. Prior to their marriage

in the United States, the parties resided together in Ghana.   According to

_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-A17035-16


Wife, the parties had initially married in Ghana in October 1986, and

reaffirmed their marriage in the New York ceremony. The parties separated

sometime in 1997. Each party alleges the other had an extramarital affair

during the marriage, which caused the separation. Husband is a pharmacist.

Wife is currently on disability and unemployed. The parties have one child

together, who has reached the age of majority.      Wife’s native language is

Akan.

        On May 25, 2011, Husband filed a divorce complaint under 23

Pa.C.S.A. § 3301(d) (irretrievable breakdown in marriage).     Wife failed to

respond to the complaint, so Husband filed notice of intent to request entry

of the divorce decree. The court entered a divorce decree on November 21,

2011. On November 28, 2011, Wife’s counsel (Attorney Osei) entered his

appearance. Wife filed an answer and counterclaim to the divorce complaint

that day. In her counterclaim, Wife sought a divorce on fault grounds under

23 Pa.C.S.A. § 3301(a)(2) (committing adultery), equitable distribution, and

alimony pendente lite/spousal support.       By order entered December 14,

2011, the court vacated the November 21, 2011 divorce decree, deciding

Husband had failed to serve Wife by proper means with notice of intent to

request entry of the divorce decree.

        On or about April 5, 2013, Husband filed notice of intent to file a

praecipe to transmit the record for approval of divorce grounds under

Section 3301(d). Wife did not respond, so the court approved grounds for


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divorce under Section 3301(d) on June 4, 2013.            On June 24, 2013,

Husband filed a certification for a hearing before a divorce master. Husband

alleged the only issue for resolution was equitable distribution.        Husband

attached an inventory to his certification, stating no marital property existed.

        On July 12, 2013, the court issued Notice of Hearing (“Notice”) to

counsel for both parties. The Notice indicated a master’s hearing would take

place at 9:00 a.m. on November 5, 2013.        The Notice also contained the

following relevant language:

          At least ten (10) days prior to this scheduled hearing,
          each party shall file a Memorandum as required by Family
          Court    Administrative    Regulation   88-4    (see   Rule
          1920.51*(f)(3)). That Memorandum shall be accompanied
          by copies of all documents relating to the issues in the
          case including, but not limited to, copies of all appraisals
          (real estate and personal property), pension evaluations,
          financial statements from the time of separation, recent
          wage stubs, current mortgage balances, any relevant
          medical reports, any bills that are at issue, and the most
          recent income tax returns. Each Memorandum shall be
          accompanied by a certification that a copy of the same has
          been served on opposing counsel and on any
          unrepresented party.      All memoranda, together with
          copies of all evidentiary documents, shall be filed with
          the Divorce Masters Unit, 46 South 11th Street, Room
          272, Philadelphia, PA 19107, or by mail to the Divorce
          Masters Unit, 46 South 11th Street, Room 272,
          Philadelphia, PA 19107 (telephone: 215-686-9205/06;
          facsimile: 215-686-9286).

(Notice, dated July 12, 2013, at 1) (emphasis in original). Significantly, the

Notice is addressed only to counsel for the parties, but not to Husband or

Wife.     Husband filed his pre-trial memorandum on October 31, 2013,

claiming no marital property existed. Husband alleged the parties previously

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owned real estate together in Ghana, which Wife fraudulently transferred

into her name only.        Notwithstanding this allegation, Husband asked the

master to allow Wife to retain ownership of the Ghana property. Husband

also asked the master to dismiss Wife’s claim for alimony based on her

alleged adultery, the fact that she can support herself, and the fact that Wife

receives financial support from her current romantic partner. Wife did not

file a pre-trial memorandum.

        The master’s hearing took place on November 5, 2013.1          Husband,

Husband’s counsel, and Wife appeared at the hearing.          Wife’s counsel of

record failed to show. The master issued his report on March 19, 2014. The

report states, in its entirety:

           I.        MINUTES.

           The Permanent Master’s Office was appointed to hear the
           issue of equitable distribution in this case. An Order
           Approving the Divorce under Section 3301(d) of the
           Divorce Code (Irretrievable Breakdown, Two Year
           Separation of the Parties) was entered on June [4], 2013.
           The hearing in this matter was held on November 5, 2013,
           at which time [Husband] appeared. [Wife] also appeared
           but her attorney of record…did not appear.

           The issue to be determined is equitable distribution.

           II.       FINDINGS OF FACT.

           The parties were married on March 12, 1996, and


____________________________________________


1
    No transcript from the master’s hearing appears in the certified record.



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          separated on December 1, 1996.[2]

          Husband is fifty-six years of age and is a part-time
          pharmacist. Wife is fifty years of age and she is a home
          health care aide.

          The evidence in this case indicates that there are no
          marital assets subject to equitable distribution. Husband
          alleged that the parties own a real estate plot at 166 C.17
          Lashibi, Nungua, Tema, Accra, Ghana. Husband alleges
          that this property was fraudulently transferred by Wife into
          her name only and that Husband never signed any
          documents giving up his interest in this real estate.
          However, a judgment was entered on July 23, 2004, by
          the High Court of Justice, Accra, wherein a judgment was
          entered and Wife was declared the sole owner of the
          aforementioned real estate.

          Under the circumstances, given that the Court in the
          jurisdiction where the real estate is located has entered an
          Order awarding Wife ownership of this property, the
          Master will make no further finding with regard to this real
          estate recognizing the Order of that Court. Further, the
          Master questions whether he has any jurisdiction or
          authority to make a finding with regard thereto and
          whether or not such a finding would be pertinent to or
          binding on the authorities in Tema, Accra.[3]

          Attached hereto is a proposed Decree            and   Order
          implementing the foregoing recommendation.

          Because of Wife’s failure to file an Inventory and
          Appraisement, an Income and Expense Statement and a
          Pre-Trial Memorandum as required by the Pennsylvania
____________________________________________


2
 Husband’s complaint alleges the parties separated on June 1, 1997, and his
pre-trial memorandum states the parties separated in 1997. The record
does not support the master’s finding that the parties separated in 1996.
3
  In light of Husband’s request in his pre-trial memorandum that the master
let Wife retain ownership of the Ghana property, it is unclear why the master
even considered the Ghana property as part of his report.



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         state and local rules of Court, the Master has prepared and
         is submitting a Rule to Show Cause why appropriate
         sanctions should not be imposed should Wife seek a trial
         de novo in this case.

(Master’s Report, filed March 19, 2014, at 1-2).      On April 2, 2014, Wife

timely filed a request for a trial de novo.

      On May 5, 2014, Wife’s counsel withdrew his appearance.             Wife

subsequently retained new counsel (“replacement counsel”), who entered

her appearance on June 27, 2014.          On January 13, 2015, replacement

counsel withdrew her appearance and Wife filed a pro se entry of

appearance that day. On August 12, 2015, the court scheduled the trial de

novo for August 21, 2015.       Additionally, on August 12, 2015, the court

entered the master’s proposed rule to show cause, directing Wife to show

cause why sanctions should not be imposed in the nature of a preclusion

order prohibiting her from offering any testimony/evidence at the trial de

novo, due to Wife’s failure to comply with Pa.R.C.P. 1920.33(a) and (b) and

Philadelphia Local Rule 1920.51*(f)(3)(vi).

      On August 21, 2015, the parties appeared for the trial de novo.

Husband was represented by counsel and Wife appeared pro se. The court

indicated it had not read the master’s report due to Wife’s request for a trial

de novo; however, the court adopted the master’s proffered rule to show

cause based on the master’s representation that Wife did not submit a pre-

trial memorandum and other necessary documents.           After reviewing the

procedural posture of the case, the parties discussed the rule to show cause.

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Wife tried to explain that her counsel of record did not appear at the

master’s hearing, and she had relied on counsel to file the necessary

documents. Despite Wife’s protestations, the court seemed to misinterpret

Wife’s remarks and presumed Wife’s counsel had withdrawn his appearance

prior to the master’s hearing.    Based on the court’s apparent belief that

Wife was proceeding without counsel before the master, the court explained

that pro se litigants are held to the same standards as represented parties,

so Wife was bound by the same rules as Husband at the master’s hearing.

Due to Wife’s failure to submit a pre-trial memorandum and other relevant

documents, the court precluded Wife from entering any testimony/evidence

at the trial de novo. Consequently, the court declined to hold a trial de novo

because Wife would be unable to offer any testimony/evidence in support of

her claims. Wife objected to the court’s ruling and insisted Husband owed

her money for her contributions to his education.    The court reiterated its

preclusion order and declined to hear Wife’s claims. At the conclusion of the

proceeding, the court entered a divorce decree. The court issued a further

order stating:

         In disposition of the economic claims of the parties, it is
         further ORDERED as follows:

         1. There are no marital assets subject to equitable
         distribution.

         2. This Decree and Order resolves all economic issues
         between the parties.

         3. This Decree and Order does not determine any right

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           that the parties may have with regard to any real estate
           located in Accra, Ghana in which they may claim an
           interest and shall not prejudice any of the legal rights
           either or both may have with respect thereto in that
           country.

           4. Except as previously provided herein, each party is
           awarded all other property currently in [his/her] respective
           name or possession and each party shall be solely
           responsible for all other indebtedness in [his/her]
           individual name.

(Decree and Order, filed August 21, 2015, at 1).

        Wife timely filed a pro se notice of appeal on Monday, September 21,

2015.     On October 1, 2015, the court ordered Wife to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Wife timely filed her concise statement pro se on October 20, 2015.

        Wife raises three issues for our review:

           WAS [WIFE] PROPERLY SERVED WITH THE NOTICE TO
           FILE HER PRE-TRIAL MEMORANDUM PURSUANT TO
           PHILADELPHIA LOCAL RULE 1920.5(F)[(3)](XII) OR
           PA.R.C.P. 1920.33(A) AND (B) AND PHILADELPHIA LOCAL
           RULE 1920.51(F)[(3)](VI)?

           IF [WIFE] WAS NOT PROPERLY SERVED WITH THE NOTICE
           TO FILE HER PRE-TRIAL MEMORANDUM, DID THAT ERROR
           CREATE REVERSIBLE ERROR SUFFICIENT ENOUGH FOR
           THE SUPERIOR COURT TO REMAND THIS MATTER?

           IF THE COURT DETERMINES THAT [WIFE’S] ATTORNEY,
           EDWARD OSEI, ESQUIRE WAS PROPERLY SERVED WITH
           THE NOTICE TO FILE THE PRE-TRIAL MEMORANDUM, AND
           THE COURT HAVING MADE THE DETERMINATION THAT
           WITHOUT THE PRE-TRIAL MEMORANDUM [THE COURT]
           WOULD BAR [WIFE] FROM ANY CLAIMS DURING THE
           DIVORCE PROCEEDINGS, WOULD IT BE EQUITABLE FOR
           THE COURT TO UPHOLD THE FINAL JUDGMENT OF
           DIVORCE INSTEAD OF REMANDING THE MATTER BACK TO

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          THE TRIAL COURT AND PERMITTING [WIFE] TO FILE HER
          PRE-TRIAL MEMORANDUM WITHIN 20 DAYS OF THAT
          ORDER?

(Wife’s Brief at 2).

      For purposes of disposition, we combine Wife’s issues.      Wife argues

her counsel of record failed to appear at the master’s hearing. Wife asserts

she received no notice from the court or her counsel that Wife was required

to file a pre-trial memorandum and other relevant documents before the

master’s hearing.      Wife maintains she is unaware if her counsel of record

received notice of his obligation to file certain documents.    In any event,

Wife contends it was her attorney’s responsibility to file the relevant

documents. Wife insists the master and the court unfairly faulted Wife for

her attorney’s errors. Wife concludes the court erred by precluding her from

offering any testimony/evidence at the trial de novo, and this Court must

remand to give Wife an opportunity to file the relevant documents and for

further proceedings on Wife’s claims.     For the following reasons, we agree

relief is due.

      At the time of the master’s hearing in this case, Pennsylvania Rule of

Civil Procedure 1920.33 provided, in pertinent part:

          Rule 1920.33.        Joinder of Related            Claims.
          Distribution of Property. Enforcement

             (a)     Within ninety days after service of a pleading or
          petition containing a claim for determination and
          distribution of property under Section 3502 of the Divorce
          Code, each party shall file an inventory specifically
          describing all property owned or possessed at the time the

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       action was commenced. The inventory shall set forth as of
       the date of the filing of the complaint:

          (1)    a specific description of all marital property in
       which either or both have a legal or equitable interest
       individually or with any other person and the name of such
       other person; and

          (2)    a specific description of all property in which a
       spouse has a legal or equitable interest which is claimed to
       be excluded from marital property and the basis for such
       exclusion.

           Note: Subdivision (c) of this rule provides sanctions for
       failure to file an inventory as required by this subdivision.
       An inventory filed within the ninety day period may be
       incomplete where the party filing it does not know of all of
       the property involved in the claim for equitable
       distribution. Consequently, the rule does not contemplate
       that a party be precluded from presenting testimony or
       offering evidence as to property omitted from the
       inventory. The omission may be supplied by the pre-trial
       statement required by subdivision (b).

           (b)   Within the time required by order of court or
       written directive of the master or, if none, at least sixty
       days before the scheduled hearing on the claim for the
       determination and distribution of property, each party shall
       file and serve upon the other party a pre-trial statement.
       The pre-trial statement shall include the following matters,
       together with any additional information required by
       special order of the court:

                                 *    *    *

          (c)   If a party fails to file either an inventory as
       required by subdivision (a) or a pre-trial statement as
       required by subdivision (b), the court may make an
       appropriate order under Rule 4019(c) governing sanctions.

          (d)(1) A party who fails to comply with a requirement of
       subdivision (b) of this rule shall, except upon good
       cause shown, be barred from offering any testimony or
       introducing any evidence in support of or in opposition to

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          claims for the matters not covered therein.

             (d)(2) A party shall, except upon good cause shown, be
          barred from offering any testimony or introducing any
          evidence that is inconsistent with or which goes beyond
          the fair scope of the information set forth in the pre-trial
          statement.

                                         *     *   *

Pa.R.C.P. 1920.33(a)-(d)         (as   amended November         8, 2006; effective

February 6, 2007) (emphasis added).4

       Additionally, the version of Philadelphia Local Rule 1920.51 in effect at

the time of the master’s hearing provided, in pertinent part:

          Rule 1920.51. Hearing by the Court. Appointment of
          Master. Notice of Hearing

                                         *     *   *

              (f)(3) Procedure on Economic Issues

                                         *     *   *

                     (vi) At least ten (10) days prior to the scheduled
                     hearing before the Permanent Master, each party
                     shall file a mandatory Memorandum which shall
                     set forth the following:

                     (A) any item of property in dispute, either as to
                     its status as marital property or value, or both,
                     together with the party’s allegations;

                     (B)    a proposed plan for distribution;

                     (C)    a brief discussion of how the proposed plan
____________________________________________


4
 Rule 1920.33 was amended again on May 6, 2015, effective July 1, 2015.
The current version of the Rule is substantially similar to the prior version.



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                     was formulated, relating it to each of the factors
                     enumerated in the Divorce Code;

                     (D) any issue of law that will have a substantial
                     effect on the proposed distribution and authorities
                     relied on by the party;

                     (E) copies of all exhibits, appraisals, and
                     evaluations intended to be offered into evidence;
                     including but not limited to, copies of all
                     appraisals (real estate and personal property),
                     pension     evaluations,   financial  statements,
                     mortgage balances, medical reports and income
                     tax returns.    All such documents shall reflect
                     current information as to the assets and liabilities
                     of the parties.

                                         *     *   *

                     (xii) Any willful violation of this Rule including
                     a failure to comply with filing requirements, failing
                     to provide the required pretrial memorandum, not
                     providing all parties or counsel copies of
                     documentary evidence to be introduced at the
                     hearing before the Master, or not attending a
                     hearing, shall be grounds for contempt of [c]ourt
                     and imposition of sanctions.        The Permanent
                     Master is empowered to recommend that anyone
                     not complying with this Rule be cited for contempt
                     of [c]ourt.

Phila.L.R.C.P. 1920.51(f)(vi), (xii) (adopted October 14, 2005, effective 30

days after publication in the Pennsylvania Bulletin) (emphasis added).5

Significantly, “the rules were intended to provide an even playing field for

____________________________________________


5
  A new version of Philadelphia Local Rule 1920.51 was adopted on May 23,
2014, effective 30 days after publication in the Pennsylvania Bulletin. The
current version of the Rule contains language substantially similar to the
prior version, at subsection (c)(6) and (c)(11).



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both parties in the marital and economic dissolution of the marriage.”

Anderson v. Anderson, 822 A.2d 824, 829 (Pa.Super. 2003).

      Instantly,   Wife’s   original   counsel   (Attorney   Osei)   entered   his

appearance on November 28, 2011. Wife filed an answer and counterclaim

to the divorce complaint that day.        In her counterclaim, Wife sought a

divorce on fault grounds, equitable distribution, and alimony pendente

lite/spousal support.   On or about April 5, 2013, Husband filed notice of

intent to file a praecipe to transmit the record for approval of divorce

grounds under Section 3301(d).           Wife did not respond, so the court

approved grounds for divorce under Section 3301(d) on June 4, 2013. On

June 24, 2013, Husband filed a certification for a hearing before a divorce

master.    Husband alleged the only issue for resolution was equitable

distribution; and he attached an inventory, stating no marital property

existed.

      On July 12, 2013, the court issued Notice to counsel for both parties.

The Notice stated a master’s hearing would take place at 9:00 a.m. on

November 5, 2013. The Notice expressly informed counsel for each party

that he must file a pre-trial memorandum at least ten days prior to the

master’s hearing, accompanied by copies of all documents relating to issues

in the case. (See Notice at 1.) Significantly, the Notice is addressed only

to counsel for the parties.      Husband filed his pre-trial memorandum on

October 31, 2013 (less than ten days before the master’s hearing). Wife did


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not file a pre-trial memorandum.

        The master’s hearing took place on November 5, 2013.         Husband,

Husband’s counsel, and Wife appeared.        Wife’s counsel of record failed to

show.      The master issued a report on March 19, 2014, specifically

acknowledging that Wife’s counsel of record had failed to appear at the

hearing.    Notwithstanding Wife’s claim for alimony pendente lite/spousal

support, the report stated the only matter for resolution at the hearing was

equitable distribution.   The master concluded the parties had no marital

assets subject to equitable distribution. Additionally, based on Wife’s failure

to file an inventory and appraisement, an income and expense statement,

and a pre-trial memorandum, the master drafted a rule to show cause why

appropriate sanctions should not be imposed, in the event Wife sought a trial

de novo. (See Master’s Report at 1-2.) On April 2, 2014, Wife timely filed a

request for a trial de novo.

        On May 5, 2014, Wife’s counsel withdrew his appearance.           Wife

subsequently retained replacement counsel, who entered her appearance on

June 27, 2014.    On January 13, 2015, replacement counsel withdrew her

appearance and Wife filed a pro se entry of appearance that day.

Replacement counsel filed no documents on Wife’s behalf during her

representation of Wife. On August 12, 2015, the court scheduled the trial de

novo for August 21, 2015.      Additionally, on August 12, 2015, the court

entered the master’s proposed rule to show cause, directing Wife to show


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cause why sanctions should not be imposed in the nature of a preclusion

order prohibiting her from offering any testimony/evidence at the trial de

novo.

        On August 21, 2015, the parties appeared for the trial de novo.

Husband was represented by counsel and Wife appeared pro se. The court

indicated it had not read the master’s report due to Wife’s request for a trial

de novo; however, the court adopted the master’s proffered rule to show

cause based on the master’s representation that Wife had not filed a pre-

trial memorandum and other necessary documents.          While discussing the

rule to show cause, the court had the following exchange with Wife:

          THE COURT: But you didn’t follow the rules. If you
          represented yourself, if your attorney had already
          withdrawn his appearance, you are bound by the same
          rules that [Husband] is bound by, and…you didn’t follow
          them.

          [WIFE]:       Your Honor—

          THE COURT: So, I am allowed to enter sanctions—that
          means a prohibition, under the rules—that you may not
          introduce any facts now.

          [WIFE]:       Your Honor, can I say something?

          THE COURT:    Certainly.

          [WIFE]:       Okay. I received a letter. I have to come
          for the master hearing. I came. The lawyer wasn’t there.
          My lawyer wasn’t there.

          THE COURT:    So, you—

          [WIFE]:       They called—


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          THE COURT:        —withdrew. Wait.

          [WIFE]:           —they called me in—

          THE COURT: Hang on. Wait, please. The lawyer that
          you had at the time withdrew the appearance?
          [Attorney] Osei?

          [WIFE]:           Yes, Your Honor.

          THE COURT: [Attorney] Osei, okay.        On November 28th,
          2011, at 9:42 a.m.?[6]

          [WIFE]:           Yes.

          THE COURT: 9 o-clock—20 minutes of 10, in November.
          And you didn’t have a master’s hearing until 2013,
          when a certification for master was requested, and
          the master’s report was filed on March 19, 2014.

          You had three years to either do it yourself or to
          have your attorney do it. You did not do it.

          [WIFE]:       Your Honor, I came.         That’s what I’m
          saying; I came.

          THE COURT: Well, you’re here today, but you still didn’t
          file anything.

          [WIFE]:       Because my—the lawyer wasn’t there. So, I
          don’t know anything. I don’t know anything. So, I asked
          for—to [postpone]—[adjournment]. I asked if—

          THE COURT:        You can’t.

          [WIFE]:           —they give [adjournment]—

          THE COURT: We don’t do that. Our rules say the recent
          entry of an appearance by an attorney is not grounds to
____________________________________________


6
  Wife’s counsel entered his appearance on November 28, 2011. The court
seemed to believe counsel withdrew his appearance on that date.



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       have a continuance.   Second, you knew that your
       attorney withdrew because you didn’t object to it,
       and it’s on the record, and then you got another
       attorney later. But that attorney withdrew.

       [WIFE]:       Your Honor, I live—

       THE COURT: This is not a criminal court where we have,
       under Gideon v. Wainwright—a case that allows us to
       [appoint] an attorney. We have no money.

       [WIFE]:       —I live in New Jersey. The lawyer live—I
       live in New York. The lawyer lives in New Jersey. So, I
       came; he wasn’t there. So, I don’t know what to say or
       what to do, because I don’t—

       THE COURT:    I enter sanctions that you are—

       [WIFE]:       —want to—so, I asked for—

       THE COURT:    —precluded from entering—

       [WIFE]:       —I—

       THE COURT: —enter sanctions against you and I
       preclude you from entering any testimony contrary to that
       of—I don’t want to make a mess of the names again—
       [Husband.]

                              *     *      *

       [WIFE]:        Your Honor, as you can see, on the master’s
       hearing, I didn’t have an opportunity to defend myself—

       THE COURT:    You did. You did.

       [WIFE]:       —and say something.

       THE COURT:    You were at the master’s hearing.

       [WIFE]:       Yes, I was there.

       THE COURT: You had the opportunity, but you didn’t
       follow the rules. …

                                  - 17 -
J-A17035-16



                                *     *      *

       THE COURT: Well, this is the law.          You had the
       opportunity to defend and you did not. You were there.

       [WIFE]:        Yes, Your—

       THE COURT:     You presented—

       [WIFE]:        —Honor, I was there.

       THE COURT:     —nothing.

       [WIFE]:       The lawyer wasn’t there.        That’s what—I
       have a lawyer. He—

       THE COURT:     It’s not my fault.

       [WIFE]:        —wasn’t there, Your Honor.

       THE COURT: The lawyer had withdrawn previously.
       You went, as you—do you have a lawyer today?

       [WIFE]:        I don’t have a lawyer today.

       THE COURT:     Why?

       [WIFE]:        Because I couldn’t afford it.      I couldn’t
       afford the lawyer.

       THE COURT: I’m very sorry, but you’re before a judge for
       justice. The justice of the United States is the same as the
       justice in Africa. If you violate the law, which you did, you
       don’t get special credit. You don’t get special handling.

                                *     *      *

       THE COURT: [Wife] appeared, said nothing, filed nothing,
       had no—had an attorney who could have filed, but
       withdrew appearance. Did—

       [WIFE]:        Your Honor—


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       THE COURT:    —you pay your attorney?

       [WIFE]:       —yes. He came later, then he was—
       leave. He came later. He came to the court later,
       after—they called me. It didn’t take long time and—
       long. In fact, I wasn’t—it wasn’t fair, you know? He
       came later.

                               *     *      *

       THE COURT: Okay. I’m trying to tell you we gave you
       every opportunity almost four years ago, May of 2011.
       This is August of 2015. You and your attorneys have failed
       to follow the rules. I grant a divorce decree today. You
       are precluded from entering any evidence.

       If you so desire, I could hold a hearing. But if I held a
       hearing, the only one that would testify would be your
       former husband, because you’re precluded from giving me
       any evidence, according to the Pennsylvania Rules of Civil
       Procedure, and the local rules, which I cited here.

       Do you understand that?      Divorce decree entered as of
       today. …

                               *     *      *

       [WIFE]:       Your Honor, but he owe me.       That’s what
       I’m saying. He owe me money.

       THE COURT: He     doesn’t—you didn’t produce         any
       evidence. The hearing is over. The parties are divorced.
       …

       [WIFE]:          Your Honor, I contribute in his education.
       It’s not fair. I contribute in his education.

       THE COURT:    The hearing is—

       [WIFE]:       He owe me.

       THE COURT:    —over, ended, finished.

       [WIFE]:       He owe me.

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         THE COURT:     —did not—

         [WIFE]:      He owe me. He owe me. He took—he took
         all—every—every—

         THE COURT:     The [c]ourt finds—

         [WIFE]:        —every money.

         THE COURT: —that [W]ife failed to appear, failed to
         produce any evidence, was not represented. …

(Trial De Novo, August 21, 2015 at 11-23) (emphasis added).

      The court’s exchange with Wife at the trial de novo strongly suggests

the court mistakenly believed Wife’s counsel had already withdrawn his

appearance prior to the master’s hearing.    Wife tried to tell the court she

was represented by counsel at the time of the master’s hearing and that

counsel eventually showed up after the hearing had ended, but the court

apparently did not understand Wife’s position. Although the master’s report

acknowledged that Wife’s counsel of record failed to appear at the hearing,

the court stated it did not review the master’s report (except for the rule to

show cause), based on Wife’s request for a trial de novo.        Additionally,

Husband’s counsel, who knew or should have known Wife was represented

by counsel of record at the master’s hearing, did nothing to aid the court’s

confusion.    Ultimately, the court precluded Wife from entering any

testimony/evidence at the trial de novo based on her failure to comply with

the relevant rules of civil procedure. Wife objected to the court’s ruling and

insisted Husband owed her money for her contributions to his education.

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J-A17035-16


The court reiterated its preclusion order and declined to hear Wife’s claims.

At the conclusion of the proceeding, the court entered a divorce decree and

order indicating that all economic issues between the parties were resolved.

     Under these circumstances, we cannot agree with the court’s actions.

Initially, the court did not send the July 12, 2013 Notice to Wife. The court

sent the Notice to only Wife’s counsel. Wife claims she had no knowledge

about the Notice and nothing in the record contradicts Wife’s contention.

Further, because Wife was represented by counsel at the master’s hearing,

she reasonably relied on her attorney to file the necessary documents and

expected him to appear at the hearing on time. As the master’s hearing is

not included in the certified record, we are unable to discern whether the

master inquired about the whereabouts of Wife’s counsel. We are similarly

unable to review Wife’s purported request for a continuance. In light of the

errors by Wife’s original counsel (Attorney Osei) in this case, the limited

record, and the court’s apparent confusion at the trial de novo, the record

does not support the court’s preclusion order as a sanction. See Pa.R.C.P.

1920.33(d)(1); Phila.L.R.C.P. 1920.51(f)(xii). See also Anderson, supra.

     Given the purpose of the rules is to provide an even playing field for

both parties, the best resolution in this case is to vacate the court’s

preclusion order and remand for a new master’s hearing and an opportunity

for Wife to comply with the relevant rules of civil procedure within a

reasonable time to be determined by the court. See generally Deussing


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v. Deussing, 307 A.2d 382 (Pa.Super. 1973) (remanding for new master’s

hearing to give wife opportunity to present her claims against husband’s

divorce complaint; wife’s counsel failed to inform wife about date scheduled

for master’s hearing due to counsel’s misplacement of file and preoccupation

with personal concerns; after wife and her counsel failed to appear at

scheduled master’s hearing, court entered divorce decree on grounds alleged

by husband; given special interest which state has in divorce matters, courts

should be even more solicitous to opening divorce decrees in interest of

having full disclosure of facts concerning alleged marital difficulties; this is

especially true in instant case where wife has been precluded from

presenting her defense due to counsel’s error and husband has not been

prejudiced). Because Wife does not contest the entry of divorce, we affirm

the divorce decree.        Our remand is limited to resolving the claims for

equitable   distribution    and   alimony/spousal    support   raised   in   Wife’s

counterclaim to the divorce complaint.         If Wife chooses to proceed pro se

upon remand, she does so at her own peril. If Wife retains new counsel, the

court shall send all relevant notices to both Wife and her counsel.

Accordingly, we affirm the divorce decree, vacate the preclusion order, and

remand for further proceedings consistent with this memorandum.

      Decree affirmed; order vacated; case remanded with instructions.

Jurisdiction is relinquished.

      Judge Lazarus joins this memorandum.
      Judge Platt concurs in the result.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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