NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P MYLENA K. DRAKE, BY AND THROUGH HER ATTORNEY IN FACT JERRY DRAKE, v. PAUL G. HURLER, Appellant Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA No. 993 MDA 2013 Appeal from the Order Entered May 24, 2013, In the Court of Common Pleas of Tioga County, Civil Division, at No. 356 FS BEFORE DONOHUE, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J. FILED FEBRUARY 24, 2014 Appellant, Mylena K. Drake ( Drake ), by and through her attorney in fact Jerry Drake, appeals from the order entered on May 24, 2013, that dismissed her petition for contempt filed against her former husband, Paul G. Hurler ( Hurler ). 1 After review, we are constrained to vacate the 1 Initially, the only names that appeared in the caption of this matter were Hurler and Drake. Complaint in Divorce, 11/14/11. On November 16, 2012, Drake filed a petition for contempt against Hurler, and attached to the petition was a limited power of attorney that was dated October 2, In this limited power of attorney, Drake conferred upon Jerry Drake, as her attorney in fact, the authority to handle all matters pertinent to enforcement of my rights as set forth in my marital settlement agreement dated May 14, 2012, including any and all legal actions for contempt in association therewith. Limited Power of Attorney, 10/2/12 (full capitalization omitted). No objections were raised to the employment of this power of attorney, and the caption now reflects Jerry Drake as Drake s

2 order entered on May 24, 2013, vacate a subsequent order entered on April 25, 2013 that granted reconsideration, and direct the trial court to reinstate the order entered on January 23, The trial court set forth the relevant facts and procedural history of this matter as follows The background of this case begins with a divorce of the parties and a marital settlement agreement disposing of their property, including [the 2007 Harley Davidson Soft Tail Deuce] motorcycle mentioned above. The terms of the agreement provided that Paul Hurler was to make all payments on the Harley Davidson Financial Loan and to refinance the loan within three months from date of execution of the Agreement on May 14, Mylena Drake s contempt petition alleged that Paul Hurler had failed to make payments as required by the agreement and as a result, she was required to make one payment to avoid a default on the loan. She further alleged that Hurler had refused to comply with the requirement that he refinance the loan. The agreement provided that Drake would become sole and separate owner of the 2007 Soft Tail Deuce Motorcycle if Hurler failed to refinance the loan within three months. Drake sought payment of attorney s fees and expenses in her attempts to enforce the Agreement, which we denied. Hurler failed to appear before the court on the date and time scheduled on the contempt petition, which was January 23, As a result, the petition was granted and Hurler was directed to turn over possession of the motorcycle to Drake, and to execute the title and pay associated costs and fees. However, the court granted a Motion for Reconsideration of that order as neither [Hurler] nor his attorney received a copy of the Contempt Petition. A copy of the hearing order was mailed to [Hurler], so he was aware that some sort of court hearing had been scheduled. On the date of the hearing, Hurler s fiancé went into what was thought to be labor and required medical attention which caused Hurler to miss the scheduled court date. On attorney in fact. Nevertheless, throughout our discussion, when we refer to Drake, we are referring to Mylena K. Drake. -2-

3 February 20, 2013, Thomas A. Walrath, Jr., Esquire, prepared and filed an Answer to the averments alleged in the petition for contempt, not knowing that the order had been signed on January 23, The court then directed that the matter be rescheduled to allow for proper service of the contempt petition and the opportunity to present testimony in order to consider the merits of the petition. Mylena Drake was not present at the May 24, 2013 contempt hearing and also had not appeared at prior proceedings. Her attorney in fact, Jerry Drake was present in the courtroom at the time of the second hearing, but counsel for Ms. Drake did not call him to present testimony[.] Mr. Paul Hurler presented uncontroverted testimony as to his efforts to comply with terms of the agreement. The original motorcycle which was owned by Paul Hurler and valued at $18,000, and for which Hurler paid cash, was traded for the 2007 Soft Tail [at issue here,] leaving a balance owed of roughly $4,000. Mr. Hurler s attempts to refinance that debt were continually thwarted by Drake s actions. Drake was employed by Harley Davidson and had the financing placed in her name alone, therefore, each time Hurler attempted to learn the total amount needed to pay off the debt, he was told by Harley Financial that he was not privy to that information since Mylena Drake was the only account holder. Hurler asked Drake to place his name on the account so that he could obtain the information he needed to comply with the refinancing requirement contained in the agreement. However, her response to his request was simply to laugh and tell him to make a payment. Hurler testified that he was able to pay off the debt but was prevented from doing so. Hurler was eventually able to learn the payoff amount via friends that work for Harley Financial but was still not permitted to make a payment in the full remaining amount of $641. He made the maximum payment that Harley Financial would allow of $400 and then forwarded a check in the amount of $241 to Annette Maza, Esquire, counsel for Drake. Trial Court Opinion, 7/23/13, at 1-3. At the conclusion of the hearing, the trial court found that Hurler was not in contempt of the settlement agreement and that Drake had thwarted Hurler s efforts to satisfy the terms -3-

4 of the agreement. Id. The trial court dismissed Drake s petition for contempt and directed Drake to return the motorcycle to Hurler. Order, 5/24/13. On June 5, 2013, Drake filed a timely notice of appeal. On appeal, Drake raises five issues for this Court s consideration I. Whether the trial court erred in permitting reconsideration of its order of January 23, 2013? II. Whether the trial court erred in not enforcing the parties contractual obligation pursuant to their marital settlement agreement? III. Whether the trial court erred in not awarding the motorcycle to the appellant and instead ordering the motorcycle to the appellee? IV. Whether the trial court erred in not awarding counsel fees and costs to appellant? V. Whether the trial court erred in dismissing the petition for contempt? Drake s Brief at 4. 2 In her first issue, Drake claims the trial court erred in granting reconsideration of the January 23, 2013 order. Drake argues that after the expiration of thirty days, the trial court had no jurisdiction over the order pursuant to 42 Pa.C.S.A Drake s Brief at 8. We agree. Section 5505 provides as follows Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any 2 We note with consternation that Hurler s Brief on appeal contains no legal authority and no argument in violation of Pa.R.A.P

5 term of court, if no appeal from such order has been taken or allowed. 42 Pa.C.S.A However, it is well settled that the trial court s discretion to modify its orders ceases thirty days after the entry of the order. ISN Bank v. Rajaratnam, A.3d, 2013 PA Super 304 at *2 (Pa. Super. 2013) (citing 42 Pa.C.S.A. 5505). Once thirty days have elapsed, the trial court may modify its order only upon a showing of extrinsic fraud, lack of jurisdiction over the subject matter, a fatal defect apparent on the face of the record, or some other evidence of extraordinary cause justifying intervention by the court. Id. Here, as noted in the trial court s recitation of the procedural history set forth above, the January 23, 2013 order held Hurler in contempt and directed him to surrender the motorcycle to Drake. Nothing was filed in this matter until Hurler s answer to the contempt petition on February 20, Inexplicably, on March 14, 2013, fifty days after the January 23, 2013 order, Hurler filed a petition for reconsideration. In this petition for reconsideration, Hurler claimed that [n]either [Hurler] nor his attorney received a copy of the Contempt Petition although a copy of the hearing order was mailed to [Hurler] so he was aware of some sort of court date. Petition for Reconsideration, 3/14/13, at 4. It is axiomatic that in order to respond paragraph-by-paragraph as Hurler did in his February 20, 2013 answer, Hurler was in possession of -5-

6 Drake s contempt petition. Thus, Hurler was at least on notice as early as February 20, 2013 that the contempt petition had been filed. Moreover, Hurler concedes in the petition for reconsideration that he received a copy of the hearing order and was aware of a pending court date, yet the record reflects that no action was taken until more than thirty days after the January 23, 2013 order was filed. Upon review, we are constrained to conclude that the trial court had no jurisdiction to grant the March 14, 2013 petition for reconsideration pursuant to 42 Pa.C.S.A More than thirty days had elapsed from the date the January 23, 2013 order was filed, and there is nothing in the record that established extrinsic fraud, lack of jurisdiction over the subject matter, or a fatal defect apparent on the face of the record. Moreover, while the trial court found that Hurler did not receive a copy of the petition for contempt, Hurler was in actual possession of the petition prior to the expiration of the thirty-day time limit. We discern no extraordinary cause justifying intervention by the trial court. See Egan v. Egan, 759 A.2d 405, 408 (Pa. Super. 2000) (holding that a party s allegation that she did not receive notice of the entry of the divorce decree until more than forty days after its entry did not constitute extraordinary cause to warrant modification of the decree after thirty days passed). -6-

7 For these reasons, we are constrained to 1) vacate the May 24, 2013 order that dismissed Drake s contempt petition and gave possession of the motorcycle to Drake; 2) vacate the April 25, 2013 order that rescinded the January 23, 2013 order; and 3) direct the trial court to enter an order reinstating the January 23, 2013 order. Superior Court Jurisdiction is relinquished. 3 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 2/24/ In light of our disposition, we do not reach the balance of Drake s issues on appeal. -7-

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