J-A01041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER R. LINK AND                         IN THE SUPERIOR COURT OF
HEATHER A. LINK,                                      PENNSYLVANIA

                         Appellants

                    v.

DENNIS LINK, INDIVIDUALLY AND AS
CUSTODIAN FOR CHRISTOPHER R. LINK
AND HEATHER A. LINK, PURSUANT TO
THE PENNSYLVANIA UNIFORM GIFT TO
MINORS ACT,

                         Appellee                    No. 738 WDA 2014
                   v.
ELISABETH LINK,

                         Appellee


  Appeal from the Decrees entered February 11, 2014 and April 14, 2014,
             in the Court of Common Pleas of Beaver County,
                   Orphans' Court, at No(s): 04-02-435A


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED FEBRUARY 4, 2015

      Christopher R. Link and Heather A. Link, (“Appellants”), appeal from

the trial court’s decrees dismissing their Petition for Accounting of Custodial

Accounts and for Turnover of Funds Removed from Custodial Accounts, and

Motion for Post-Trial Relief. We affirm.

      Our review of the record reveals the following:     Respondent Dennis

Link (“Father”), is the father of Appellants. Additional respondent Elisabeth

Link, now known as Elisabeth Pflugh (“Mother”), is the mother of Appellants.
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Father and Mother separated in 1994 and were divorced in 2001.           N.T.,

5/20/13, at 21, 23.    Appellant Christopher Link was born on February 20,

1976, and turned 18 on February 20, 1994.            N.T., 5/20/13, at 21.

      Appellant Christopher Link testified that his parents’ divorce was

“contentious”, and that he authorized Mother to represent him in domestic

relations proceedings to collect college tuition from Father.    Id. at 22.

Appellant Christopher Link has not spoken to Father since 2001. Id. at 23.

      It is undisputed that on or about 1979, Father opened Uniform Gift to

Minor Accounts (“UGMA”) for Appellants. See id. at 98-100, 104. Appellant

Christopher Link learned about the UGMA accounts from his sisters and his

Mother “somewhere between May and August” of 2001. Id. at 24-25. In

August of 1994, Father paid for a “very small portion”, approximately

$1,300, of Appellant Christopher Link’s college tuition at Robert Morris from

one of the UGMA accounts. Id. at 30, 32.

      Appellant Heather Link was born on April 2, 1979, and turned 21 on

April 29, 2000.   Id. at 33.    Ms. Link described learning about the UGMA

accounts in the fall of 2000:

            In the fall of 2000 I was accepted to Columbia University,
      and I went to meet with [Father] to ask him if he would help me
      pay for tuition. He told me that he couldn’t, because he was
      poor and had no money.

            I then went back and talked to my mom and she told me
      that, you know, there was a college account for us, and then
      when I asked him about it he told me that I didn’t earn the
      money and I didn’t deserve it.



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Id. at 34. Ms. Link never received any money from an UGMA account. Id.

at 35.   Ms. Link also testified that she knew about the UGMA account in

February of 1999. Id. at 41.

      Father testified to opening UGMA accounts for his children. He stated

that the “accounts were withdrawn from and then put into other accounts.”

Id. at 45.    He testified that the money was not given to Appellants

Christopher and Heather Link, and “neither did I take possession of it.” Id.

Father explained that the money was used to pay “taxes and to buy cars for

the family, family expenses.” Id. at 46. Father testified that by the end of

1994, there was no money left in the UGMA accounts and they had “a zero

balance.” Id. at 95-96.

      Mother testified that her divorce from Father lasted six and a half

years from 1994 through 2001.      Id. at 65.      Mother learned of the UGMA

accounts in 1994. Id. at 67-68. Mother testified that Father told her that

he was saving for their children’s education; she stated she was “sure”

Father told the children this. Id. at 68. Mother said that she “didn’t know

anything about the UGMA accounts.” Id. at 73.

      Appellants filed their Petition for Accounting of Custodial Accounts and

for Turnover of Funds Removed from Custodial Accounts on April 11, 2002.

Docket activity continued until November 13, 2003, with a two and a half

year lapse in activity through May 15, 2006, and another nearly two year

lapse until March 24, 2008, when an entry of appearance was entered on

behalf of Appellants. The trial court explained:

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      [Appellants] first filed a Certificate of Readiness for Trial on
      September 18, 2012. Hearing on the Petition was convened on
      May 20, 2013, over eleven (11) years after the Petition was
      filed.

Trial Court Memorandum Opinion and Decree, 2/11/14, at 1. On February

11, 2014, the trial court entered a decree dismissing Appellants’ petition “for

the reasons set forth in the foregoing Memorandum Opinion.”         Within the

Memorandum Opinion, the trial court based its dismissal on “all three (3)

grounds raised by [Father’s] pleadings as discussed herein”, i.e., 1.) the

statute of limitations; 2.) the doctrine of laches; and 3.) the equitable

remedy of non pros.

      Appellants filed a motion for post-trial relief on February 21, 2014.

The trial court scheduled argument for April 11, 2014, and on April 14, 2014,

entered a decree denying Appellants’ motion.        Appellants filed a timely

appeal and statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      Appellants raise three issues:

      I.   Whether the trial court erred in entering its February 11
      and April 14, 2014 Decrees by ruling that the petitioners’ action
      was barred by the statute of limitations.

      II.  Whether the trial court erred in entering its February 11
      and April 14, 2014 Decrees by ruling that the petitioners’ action
      was barred by the doctrine of laches.

      III. Whether the trial court erred in entering its February 11
      and April 14, 2014 Decrees by ruling that the petitioners’ action
      was barred by the equitable remedy of non pros.

Appellants’ Brief at 5.


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      Upon review, and with regard to Appellants’ third issue concerning non

pros, we find that the record supports the trial court’s entry of non pros, and

therefore affirm the trial court on this basis.       See, e.g., Cid v. Erie Ins.

Group, 63 A.3d 787, 791 (Pa. Super. 2013) (“we may affirm on any basis”).

      On February 21, 2014, after entry of the trial court’s February 11,

2014 decree, Appellants filed their post-trial motion challenging, inter alia,

the entry of non-pros.     Appellants did not specifically reference Pa.R.C.P.

3051, which provides:

      Rule 3051. Relief from Judgment of Non Pros

      (a) Relief from a judgment of non pros shall be sought by
      petition. All grounds for relief, whether to strike off the judgment
      or to open it, must be asserted in a single petition.

      (b) Except as provided in subdivision (c), if the relief sought
      includes the opening of the judgment, the petition shall allege
      facts showing that

         (1) the petition is timely filed,

         (2) there is a reasonable explanation or legitimate excuse
         for the conduct that gave rise to the entry of judgment of
         non pros, and

         (3) there is a meritorious cause of action.

                                                ***

      (c) If the relief sought includes the opening of the judgment of
      non pros for inactivity, the petition shall allege facts showing
      that

         Note: The “inactivity” covered by this subdivision is
         governed by and subject to Jacobs v. Halloran, 551 Pa.
         350, 710 A.2d 1098 (1998).

      (1) the petition is timely filed,

      (2) there is a meritorious cause of action, and

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     (3) the record of the proceedings granting the judgment of non
     pros does not support a finding that the following requirements
     for entry of a judgment of non pros for inactivity have been
     satisfied:

        (i) there has been a lack of due diligence on the part of the
        plaintiff for failure to proceed with reasonable promptitude,

        (ii) the plaintiff has failed to show a compelling reason for
        the delay, and

        (iii) the delay    has   caused   actual   prejudice   to   the
        defendant.

Pa.R.C.P. 3051(a)-(c).

     We recently explained:

            A request to open a judgment of non pros . . . is in the
     nature of an appeal to the equitable powers of the court and, in
     order for the judgment of non pros to be opened, a three-
     pronged test must be satisfied: 1) the petition to open must be
     promptly filed; 2) the default or delay must be reasonably
     explained or excused; and 3) facts must be shown to exist that
     support a cause of action. Madrid v. Alpine Mountain Corp., 24
     A.3d 380, 381 (Pa. Super.2011) (citation omitted); Pa.R.C.P.
     3051. A petition under Pa.R.C.P. 3051 is the only means by
     which relief from a judgment of non pros may be sought. Id.;
     Pa.R.C.P. 3051, Comment. “Any appeal related to a judgment of
     non pros lies not from the judgment itself, but from the denial of
     a petition to open or strike.” Madrid, 24 A.3d at 381–382
     (citation omitted). The “failure to file a timely or rule-compliant
     petition to open operates as a waiver of any right to address
     issues concerning the underlying judgment of non pros.” Id. at
     382. Finally, a trial court's decision to deny a petition to open or
     strike a judgment of non pros is reviewed pursuant to an abuse
     of discretion standard. Id. (citation omitted).

See Bartolomeo v. Marshall, 69 A.3d 610, 613-614 (Pa. Super. 2013).

     Assuming arguendo that Appellants’ motion for post-trial relief was a

de facto Rule 3051 petition, our review indicates that it was promptly filed,



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but did not meet the second prong of Rule 3051(b) where the default or

delay must be reasonably explained or excused.       Rather, the essence of

Appellants’ argument was that by not requesting non pros until November of

2012, Father “ha[d] unclean hands as to the application for judgment [of]

non pros, having filed for such too late, to the prejudice of [Appellants].”

Post-Trial Motion, 2/21/14, at 15 (unnumbered).         In support of this

argument, Appellants cited one Commonwealth Court and one Third Circuit

decision. See Commonwealth v. Thomas, 814 A.2d 754, 758 (Pa. Super.

2002) (Superior Court not bound by the decisions of the Commonwealth

Court); Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa. Super. 2002)

(“federal court decisions do not control the determinations of the Superior

Court”).

      Furthermore, we review a trial court's decision to deny a petition to

open or strike a judgment of non pros “pursuant to an abuse of discretion

standard.” Bartolomeo, 69 A.3d at 614. In their appellate brief, Appellants

contest the trial court’s determination that Father suffered prejudice, and

assert that “Father’s own delay precluded the application of the remedy of

non pros.” Appellants’ Brief at 23-27.

      With regard to its determination that Father suffered prejudice, the

trial court referenced the record and explained:

            [Father] has also filed a Petition for Non Pros for the
      [Appellants’] failure to prosecute their Petition in a timely
      fashion. [Father] cites as authority for his position the case of
      Jacobs v. Halloran, 551 Pa. 350, 357, 710 A.2d 1098, 1103
      (1998), wherein the Supreme Court of Pennsylvania stated,

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        “To dismiss a case for inactivity pursuant to a defendant’s
        motion for non pros, there must first be a lack of due
        diligence on the part of the plaintiff in failing to proceed
        with reasonable promptitude. Second, the plaintiff must
        have no compelling reason for the delay. Finally, the delay
        must cause actual prejudice to the defendant.”

     In the case at hand, this Petition was filed on April 11, 2002, and
     the hearing date was not set for the first time until March, 2013,
     almost eleven (11) years after the Petition was filed and
     nineteen (19) years after the accounts were closed with the full
     knowledge of the primary Custodian and Guardian of
     [Appellants]. If the docket and the Hearing Transcript do not
     establish anything else, they do make it crystal clear that both
     [Appellants] displayed a “lack of due diligence in failing to
     proceed with reasonable promptitude”. A review of the docket,
     as noted in and attached to [Father’s] Petition, reveals that
     nearly the entire delay was attributable to [Appellants’] failure to
     prosecute their claims. By way of example, [Appellants] did not
     file an Answer to [Father’]s Preliminary Objections for a period of
     two (2) years; between November, 2003 and March, 2008, a
     period of four and one-half (4½) years, the only docket activity
     to take place was the filing of a Request for Admissions by
     [Appellants] and a timely response to the same by [Father] in
     2006; and, following denial of [Appellants’] Motion for Summary
     Judgment, twenty (20) months elapsed before [Appellants] filed
     their Certificate of Readiness for Trial on the Petition. In the
     face of this extended delay, [Appellants] offered no
     compelling reason for their delay. It was abundantly clear at
     the hearing on May 20, 2013 that neither [Appellants] nor
     [Father] had gathered any admissible evidence which was not
     otherwise in their possession since 2001.

           Finally, [Father] did establish actual prejudice resulting
     from [Appellants’] delay. As noted in the Motion for Non Pros,
     the attorney who represented [Mother] in the divorce action
     passed away in 2009, denying all parties the opportunity to call
     her as a witness to the events occurring between 1994 and
     2001. Furthermore, neither [Father], [Mother] nor [Appellants]
     were able to produce records from Kemper nor accounting
     records of the Custodian which were in the marital residence
     after separation of the parties in 1994. The delay in pursuing
     the cause of action, and even more so, the delay in prosecuting
     their claims with reasonable promptitude, caused actual
     prejudice to [Father].

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               Those delays also hamper this Court’s ability to award any
        relief to [Appellants].      The Decree [Appellants] seek is
        unenforceable when one considers that counsel for [Appellants]
        acknowledged on the record, as did counsel for [Father], their
        mutual inability to provide records and an accounting of financial
        activities that took place between 19 and 34 years ago. The
        actions of [Father] between 1979 and 1994 were reprehensible
        at the very least, but because of delays since 1994 which were
        not of his making, his activities as Custodian are not deemed
        actionable at this time.

Trial   Court   Memorandum       Opinion   and   Decree,   2/11/14,   at     8-10

(unnumbered, emphasis added).           Upon review, we find no abuse of

discretion in the trial court’s determination.

        As to Appellants’ argument regarding Father’s delay in seeking non

pros, Appellants continue to rely on Commonwealth Court and federal court

decisions which are not binding on this Court. Thomas, supra; Werner,

supra.

        Given the foregoing, we conclude that even had Appellants fully

complied with Pa.R.C.P. 3051, the trial court did not abuse its discretion in

entering non pros. We therefore affirm the trial court.

        Decrees affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2015




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