J-S47043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.L.B.                                             IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

J.M.W.

                            Appellant                   No. 2061 MDA 2015


                Appeal from the Order Entered October 20, 2015
                 In the Court of Common Pleas of Berks County
                     Domestic Relations at No(s): 07-14235


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED AUGUST 09, 2016

        J.M.W. appeals from the order of the Court of Common Pleas of Berks

County, which entered the support master’s recommendation as the final

order of court without argument on J.M.W.’s exceptions to the recommended

order. After careful review, we vacate and remand for further proceedings.1

        The trial court summarized the facts as follows:

        [J.M.W.] filed a petition to modify [K.L.B.’s] support on January
        6, 2015. A hearing was held in [the] Domestic Relations office
        on February 25, 2015, [and] no agreement was reached. A
        support hearing was held before the Support Master on April 17,
        2015. Both parties were unrepresented. [J.M.W.] failed to bring
        employment wage verification to the hearing despite being
        instructed to do so. However, both [J.M.W.’s] current employer
        and his past employer provided the necessary documentation to
        establish both his is income and earning capacity. On May 26,
        2015[,] the [s]upport [m]aster entered a recommended [o]rder.
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1
    We note that Appellee has failed to file an appellate brief.
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        On June 23, 2015[,] [J.M.W.]             filed   exception[s]   to   the
        recommended support [o]rder. [2]

        On August 24, 2015[,] this [c]ourt entered a [briefing schedule
        directing J.M.W.] to file his brief no later than fourteen (14) days
        before the scheduled argument date of September 23, 2015.
        The [o]rder also stated that failure to file a timely memorandum
        or brief may result in dismissal of the exceptions. On September
        17, 2015[,] this [c]ourt granted [J.M.W.’s] request to continue
        the [s]upport [a]rgument to October 20, 2015[;] however[,] this
        [c]ourt [o]rdered that all other respects of the August 24, 2015
        [o]rder were to remain in effect. [J.M.W.] failed to file his brief
        as directed[.] [J.M.W.] filed his untimely brief on the day of the
        hearing, October 20, 2015. On October 23, 2015[,] this [c]ourt
        entered the [Support Master’s order as its final order.]

Trial Court Opinion, 1/14/16, at 1-2.

        J.M.W. filed a timely notice of appeal and court-ordered concise

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

On appeal, J.M.W. raises the following issue for our review:

        Did the [h]onorable [t]rial [c]ourt err in dismissing [J.M.W.’s]
        exceptions to [the] [s]upport [m]aster’s recommended order due
        to a late brief filing without a hearing [d]e [n]ovo?

Appellant’s Brief, at 2.

        Pursuant to Pennsylvania Rule of Civil Procedure 1910.12,

        [i]f exceptions are filed, the interim order shall continue in
        effect. The court shall hear argument on the exceptions and
        enter an appropriate final order substantially in the form set
        forth in Rule 1910.27(e) within sixty days from the date of the
        filing of exceptions to the interim order. No motion for post-trial
        relief may be filed to the final order.

Pa.R.C.P. 1910.12(h).
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2
    By this point, J.M.W. had retained counsel who filed the exceptions.




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       Instantly, the trial court ordered briefs to be filed fourteen days prior

to argument.       When counsel did not file a brief until the day of the

argument, which had been rescheduled because counsel did not receive

notice of the original date, the trial court refused to hear argument. Berks

County Rule of Civil Procedure 211.5 permits the trial court to strike a

matter from the argument list if briefs are not timely filed.       See Berks

County R.C.P. 211.5(a)(4) (if party fails to file brief as required by local

rules, court may order that “case be stricken from the argument list”).

       J.M.W. argues that Rule 1910.12(h) provides that if exceptions are

timely filed, the trial court must hear oral argument on the matter; the rule

does not provide any caveats regarding untimely briefs.3 In support of his

argument, J.M.W. cites to Pennsylvania Rule of Civil Procedure 239, which

states that “[l]ocal rules shall not be inconsistent with any general rule of

the Supreme Court or any Act of Assembly.” Pa.R.C.P. 239(b)(1).4 Indeed,

under similar circumstances, we have remanded a case to the trial court for

argument.     See Everhardt v. Akerley, 665 A.2d 1283, 1287 (Pa. Super.
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3
  As the trial court noted, J.M.W. incorrectly characterizes Rule 1910.12 as
permitting a hearing de novo; “rather[,] the rule only provides for
argument.” Trial Court Opinion, 1/14/16, at 2. Though the rule does not
provide for a hearing de novo, it nevertheless unequivocally states that the
trial court must hear argument if timely exceptions are filed.
4
  In an order entered June 28, 2016, the Pennsylvania Supreme Court
provided that this particular provision of Pa.R.C.P. 239 will be codified at
Pennsylvania Rule of Judicial Administration 103(d)(1), effective
immediately.



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1995) (where trial court dismissed husband’s exceptions to domestic

relations hearing officer’s recommendation in child support proceeding based

upon husband’s failure to file timely brief, as required by local rule, violation

of Rule 239(f) occurred; case remanded to trial court for argument). 5 Thus,

we are constrained to remand this matter to the trial court to hold argument

regarding J.M.W.’s exceptions to the support master’s recommendation.

       Order vacated.      Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




____________________________________________


5
  We note that the trial court indicates in its opinion pursuant to Pa.R.A.P.
1925(a) that it considered the submissions of the parties regarding the
exceptions prior to entering the support master’s recommendation as the
final order. However, this is not a substitute for holding argument on the
exceptions. See Everhardt, supra at 1286 (local rule permitting court to
rule on exceptions without hearing argument invalidated by statewide rule
requiring argument to be held). See also Delcamp v. Delcamp, 881 A.2d
853, 854 (Pa. Super. 2005) (timely brief not essential for court to hold
effective review via argument regarding exceptions to recommendations of
special master in divorce case).



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