J-A30041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GAIL P. VALORA                                IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

WILLIAM M. VALORA

                         Appellant                 No. 241 MDA 2016


               Appeal from the Order Entered January 5, 2016
               In the Court of Common Pleas of Clinton County
                       Civil Division at No: 2012-00839


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED FEBRUARY 09, 2017

     Appellant, William M. Valora, appeals from the January 5, 2016 order

denying his petition to open a divorce decree. We affirm.

     The record reflects that the parties were married on December 27,

2003 and separated during the summer of 2010.       Appellee, Gail P. Valora

filed a complaint in divorce on July 18, 2012. At a March 12, 2013 pre-trial

conference, the parties agreed that the marital value of Appellee’s

Pennsylvania State Employee Retirement System (“PSERS”) account, a

defined benefit pension plan, was $23,488.69. The parties incorporated that

figure into their Marital Settlement Agreement (“MSA”), and the June 10,

2013 divorce decree incorporated the MSA. Appellant subsequently learned

from an actuary that that the present value of Appellee’s PSERS account was

$117,689.00.
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       On November 7, 2014, Appellant filed a petition to vacate the divorce

decree. The trial court conducted a hearing on July 28, 2015. On January

5, 2016, the trial court entered an order denying Appellant’s petition, finding

that Appellee and her counsel engaged in no fraud, and nothing prevented

Appellant from discerning the actuarial value of Appellee’s PSERS account

prior to entry of the final decree.

       On February 4, 2016, the thirtieth and final day in the appeal period, 1

Appellant’s counsel faxed a notice of appeal to the Clinton County

Prothonotary’s office. She also mailed a paper copy of the notice of appeal.

The Clinton County Prothonotary received the mailed copy on February 8,

2016, after the appeal period expired. At the direction of the trial court, the

prothonotary docketed the notice of appeal as received on February 8, 2016.

On February 16, 2106, the trial court filed an opinion recommending that

this Court quash this appeal.             According to the trial court’s opinion,

Appellant’s counsel spoke by telephone with the Clinton County Prothonotary

and received permission to transmit the notice of appeal by facsimile.        As

the trial court correctly notes, Rule 205.1 of the Pennsylvania Rules of Civil

Procedure requires any filing to be mailed or hand delivered to a local

prothonotary. Pa.R.C.P. No. 205.1. That rule does not authorize filing by

fax. Appellant relies on Rule 205.3, which permits filing a facsimile copy of

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1
    See Pa.R.A.P. 903(a).



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a document.    Pa.R.C.P. No. 205.3(a).      A note to Rule 205.3(a) provides:

“This rule does not authorize the filing of legal papers with the

prothonotary by facsimile transmission, but, rather, authorizes the

filing of a non-original facsimile or other copy.” Pa.R.C.P. No. 205.3(a),

note (emphasis added). The trial court opined that Appellant’s counsel and

the Clinton County Prothonotary’s office did not seek court permission to

excuse compliance with Rule 205.1, and that 205.3 plainly does not

authorize filing of a document by facsimile.      The trial court’s analysis of

Rules 205.1 and 205.3 is correct. Neither Rule authorizes transmission of a

document to the prothonotary by facsimile, and neither rule authorizes a

prothonotary to excuse noncompliance.

      Nonetheless, counsel would construe the untimely notice of appeal as

a   “breakdown   in   the   court   process,”   based   on   the   prothonotary’s

representation that it would accept the notice of appeal by facsimile.

Appellant also cites a note to Rule of Appellate Procedure 105(b) to grant

relief from filing deadlines “in the case of fraud or a breakdown in the

process of a court.” Pa.R.A.P. 105(b), note. A breakdown in the process of

a court can occur, for example, where an officer of the court fails to notify a

party of his or her rights.   See Commonwealth v. Patterson, 940 A.2d
493 (Pa. Super. 2007), appeal denied, 960 A.2d 838 (Pa. 2008). We do not

believe a breakdown in court process occurs where an attorney attempts to

escape compliance with the Rules of Civil Procedure by alleging permission


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to do so from unnamed, unauthorized court personnel. See Cris V. Wise,

781 A.2d 1156, 1159 (Pa. 2001) (noting that a party may obtain a nunc pro

tunc appeal in an “extraordinary” case where the untimely appeal results

from “non-negligent” circumstances).   Instantly, counsel acted at her peril

by waiting until day thirty and transmitting a notice of appeal by facsimile.

See Cubano v. Sheehan, 146 A.3d 791, 794 (Pa. Super. 2016) (quashing

an appeal where counsel waited until day 29 to send the notice of appeal to

the prothonotary by Federal Express overnight delivery—a method not

designated as acceptable in the Rules of Procedure).

     Fortunately for Appellant, the certified docket does not clearly reflect

that the prothonotary provided counsel with notice of the trial court’s

January 5, 2016 order in accordance with Pa.R.C.P. No. 236. Rule 236(a)

requires the prothonotary to provide immediate written notice of an order to

counsel of record, and Rule 236(b) requires the prothonotary to record the

giving of notice in the docket. Appellate Rule 108(b) provides that the date

of entry of an order is the date on which the prothonotary provides the Rule

236(b) notice. Pa.R.A.P. 108(b). Thus, in this case, the appeal period did

not begin to run and the January 5, 2016 order technically was not

appealable as of February 8, 2016, the day the prothonotary docketed

Appellant’s notice of appeal.   Frazier v. City of Philadelphia, 735 A.2d
113, 115 (Pa. 1999); Calabrese v. Zeager, 976 A.2d 1151, 1152 (Pa.

Super. 2009). Nonetheless, we need not remand for proper notice. Instead,


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we “regard as done what should have been done” and treat the appeal as

timely. Vertical Res. v. Bramlett, 837 A.2d 1193 (Pa. Super. 2003).

      We now turn to the merits.     An order denying a motion to vacate a

divorce decree is a final appealable order.   Danz v. Danz, 947 A.2d 750,

751 n.1 (Pa. Super. 2008). We review the trial court’s order for an abuse of

discretion. Id. at 752. Appellant raises eight assertions of error, which we

will not reproduce verbatim. One of the eight addressed the timeliness of

this appeal.   Another three assertions of error address the transfer of this

matter from Judge Craig P. Miller to Judge Michael F. Salisbury. Judge Miller

presided over a March 3, 2015 hearing, at the conclusion of which he

ordered that another hearing would take place. Subsequently, Judge Miller

sua sponte recused himself. Judge Salisbury presided over a July 28, 2015

hearing at which wife’s counsel testified.

      Appellant complains that Judge Salisbury is a former member of the

firm representing Appellee.    Appellant’s Brief at 25 n.4.   Judge Salisbury

explained that his membership at the firm ended long ago, when the two

attorneys currently representing Appellee were in grade school. Trial Court

Opinion, 3/9/16, at 1. Judge Salisbury further noted that Appellant did not

move for Judge Salisbury’s recusal. Id. Likewise, Appellant’s brief does not

contain any legal argument on recusal.       Absent any recusal motion from

Appellant, we need not address this issue further.




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      Appellant also argues that Judge Salisbury improperly refused to

address the merits after Judge Miller determined at a prior hearing that the

merits were properly before the Court.     As we will explain below, the trial

court’s statutory authority to consider Appellant’s petition to vacate the

divorce decree was contingent on Appellant’s ability to demonstrate extrinsic

fraud as set forth in 23 Pa.C.S.A. § 3332. We agree with the trial court that

Appellant failed to demonstrate fraud.        The trial court therefore had no

statutory authority to consider this matter further.

      Appellant’s four remaining assertions of error challenge the trial court’s

finding that Appellant failed to prove extrinsic fraud under § 3332. We will

address these assertions of error together.

      Section 3332 provides:

      A motion to open a decree of divorce or annulment may be made
      only within the period limited by 42 Pa.C.S. § 5505 (relating to
      modification of orders) and not thereafter. The motion may lie
      where it is alleged that the decree was procured by intrinsic
      fraud or that there is new evidence relating to the cause of
      action which will sustain the attack upon its validity. A motion
      to vacate a decree or strike a judgment alleged to be void
      because of extrinsic fraud, lack of jurisdiction over the
      subject matter or a fatal defect apparent upon the face of
      the record must be made within five years after entry of
      the final decree. Intrinsic fraud relates to a matter adjudicated
      by the judgment, including perjury and false testimony, whereas
      extrinsic fraud relates to matters collateral to the judgment
      which have the consequence of precluding a fair hearing or
      presentation of one side of the case.

23 Pa.C.S.A. § 3332.




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      Appellant did not file his motion to vacate the decree within thirty days

of the decree, as would have been necessary for the court to proceed under

§ 5505. Appellant’s motion fell within the five-year deadline for alleging that

the decree was void because of extrinsic fraud. As noted above, the parties

agreed that the marital value of Appellee’s PSERS account was $23,488.69.

They arrived at that figure by subtracting the account’s date of marriage

value ($8,646.86) from its date of separation value ($32,135.55). Pursuant

to the MSA, the parties agreed to rollover $15,000 from the PSERS account

to an IRA account in Appellant’s name.        Appellee’s PSERS account is a

defined benefit pension plan, yet Appellant and his counsel did not retain an

actuary to ascertain the present value of Appellee’s marital contributions to

the plan.     Appellant now alleges the present value of the marital

contributions is $117,689.00, and he argues that Appellee and her counsel

engaged in fraud by failing to explain to Appellant and his counsel that they

should have hired an actuary. Further, Appellant claims the parties cannot

consummate their agreement to roll over $15,000 from the PSERS account

because it is a defined benefit plan rather than a defined contribution plan.

      The trial court noted the following:

            [Appellant] argues that [Appellee’s counsel] intentionally
      withheld information from [Appellant’s] prior counsel […], and
      the court with respect to valuation of [Appellee’s] PSERS
      account. However, according to the testimony of [Appellee’s
      counsel] at the July 29, 2015 hearing, he provided [Appellant’s]
      attorney, as well as the court at the time of the pre-trial
      conference, with all the information that he had in his possession
      regarding [Appellee’s] PSERS account. No evidence was offered

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       to suggest that [Appellee’s counsel] intentionally withheld
       information from [Appellant’s counsel] or the court.

Trial Court Findings of Fact and Decision, 1/5/16, at 3-4.           The record

supports these findings.

       In Fenstermaker v. Fenstermaker, 502 A.2d 185, 188 (Pa. Super.

1992), this Court defined the term “extrinsic fraud” as used in § 3332:2

              By the expression ‘extrinsic or collateral fraud’ is meant
       some act or conduct of the prevailing party which has prevented
       a fair submission of the controversy. Among these are the
       keeping of the defeated party away from court by false promise
       of compromise, or fraudulently keeping him in ignorance of the
       action. Another instance is where an attorney without authority
       pretends to represent a party and corruptly connives at his
       defeat, or where an attorney has been regularly employed and
       corruptly sells out his client's interest. The fraud in such case is
       extrinsic or collateral to the question determined by the court.
       The reason for the rule is that there must be an end to litigation;
       and, where a party has had his day in court and knows what the
       issues are, he must be prepared to meet and expose perjury
       then and there[.]       Where the alleged perjury relates to a
       question upon which there was a conflict, and it was necessary
       for the court to determine the truth or falsity of the testimony,
       the fraud is intrinsic and is concluded by the judgment, unless
       there be a showing that the jurisdiction of the court has been
       imposed upon, or that by some fraudulent act of the prevailing
       party the other has been deprived of an opportunity for a fair
       trial.

Fenstermaker v. Fenstermaker, 502 A.2d 185, 188 (Pa. Super. 1985).

       In Ratarsky v. Ratarsky, 557 A.2d 23, 24 (Pa. Super. 1989),

affirmed, 581 A.2d 1377 (Pa. 1990), the former wife sought to open a

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2
   At the time of the Fenstermaker decision, 23 P.S. § 602 (repealed)
governed opening or vacating divorce decrees.



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divorce decree based on the former husband’s alleged concealment of the

cash surrender value of several life insurance policies held in a trust. The

parties’ attorneys negotiated a property settlement agreement, which they

finalized on February 3, 1986. Id. at 24. The next day, the former husband

notified the trustee that he was revoking the trust and taking possession of

the insurance policies. Id. For accounting purposes, the trust carried the

insurance policies at a book value and market value of $1.00 each. Id. at

24. The former wife did not inquire into the policies’ cash surrender value,

which was considerably higher. Id. The trial court granted the former wife’s

petition to vacate the divorce decree, but this Court reversed:            “Even

assuming arguendo that the appellant did conceal the cash surrender value,

the appellant’s acts did not constitute extrinsic fraud under the Divorce

Code.” Id. at 25.

            A review of the record reveals that the appellant’s actions
     were not tantamount to extrinsic fraud and did not prevent a fair
     hearing. The property settlement in question was entered into
     by the parties following almost one year of extensive, counseled
     negotiations. Appellee’s counsel contends he never became
     aware of the policies’ true value because opposing counsel’s
     intimations that a full disclosure in good faith had been made.
     In fact, a sufficient disclosure of the appellant’s assets was
     made. The appellee was informed of the exact contents of the
     trust fund, including the precise identity of each insurance policy
     which was a part of the trust. If counsel wanted to know the
     value of the policies, all he needed to do was go to the Bank and
     review them; thereafter, counsel would have had full knowledge
     of the policies' cash surrender value. However, counsel never
     saw fit to examine the policies. Appellee’s trial counsel must
     remember that no matter how amiable property settlement
     negotiations are, they still are adversarial, and counsel has a
     duty to protect his client’s best interests by fully investigating

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         the extent of the marital assets. No doubt the appellee knew of
         the policies existence and should have specifically inquired
         concerning their cash surrender value. Certainly, the appellee’s
         trial counsel’s performance cannot be imputed to the appellant
         and labeled as fraud. Accordingly, the lower court had no
         authority to vacate the divorce decree on the basis of extrinsic
         fraud.

Id. at 26.

         We believe Ratarsky is directly on point and controlling. The instant

record supports the trial court’s finding that Appellee and her counsel did not

fail to disclose any pertinent information.     Appellee provided information

from which Appellant could glean the nature and value of Appellee’s PSERS

account.     Here, as in Ratarsky, both parties were aware of the assets in

question and one party failed to investigate and/or comprehend the value of

the assets.     Here, as in Ratarsky, Appellant’s counsel made a significant

mistake that Appellant asks us to attribute to Appellee’s counsel as fraud.

Ratarsky teaches that an attorney’s deficient performance or failure to

investigate the value of an asset cannot be imputed to the other party as

fraud.

         Appellant argues that Ratarsky is distinguishable because Appellee’s

counsel was clearly aware of Appellant’s counsel’s mistake. The same was

undoubtedly true in Ratarsky, where the former husband claimed the

insurance policies the day after the parties reached a property settlement

agreement.       As the Ratarsky Court noted, however, “counsel must

remember that no matter how amiable property settlement negotiations are,



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they still are adversarial, and counsel has a duty to protect his client’s best

interests by fully investigating the extent of the marital assets.” Id.

       Based on the foregoing, we agree with the trial court’s conclusion that

Appellant failed to demonstrate extrinsic fraud as defined in Ratarsky and

Fenstermaker.         We discern no abuse of discretion in the trial court’s

decision not to vacate the divorce decree.

       Appellant also notes that Judge Miller, prior to his sua sponte recusal,

placed Appellee’s PSERS account in a constructive trust, pursuant to 23

Pa.C.S.A. § 3505(d).3         We need not express any opinion on the order

creating a constructive trust, except to note that its existence does not

preclude our affirmance of the trial court’s refusal to vacate the divorce

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3
    Section 3505(d) provides:

       (d) Constructive trust for undisclosed assets.--If a party
       fails to disclose information required by general rule of the
       Supreme Court and in consequence thereof an asset or assets
       with a fair market value of $1,000 or more is omitted from the
       final distribution of property, the party aggrieved by the
       nondisclosure may at any time petition the court granting the
       award to declare the creation of a constructive trust as to all
       undisclosed assets for the benefit of the parties and their minor
       or dependent children, if any. The party in whose name the
       assets are held shall be declared the constructive trustee unless
       the court designates a different trustee, and the trust may
       include any terms and conditions the court may determine. The
       court shall grant the petition upon a finding of a failure to
       disclose the assets as required by general rule of the Supreme
       Court.

23 Pa.C.S.A. § 3505(d).



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decree. An action under § 3505 is a distinct cause of action from a petition

under § 3332. Kozel v. Kozel, 97 A.3d 767, 770 (Pa. Super. 2014) (citing

Major v. Major, 518 A.2d 1267 (Pa. Super. 1986) (affirmed as modified,

540 A.2d 529 (Pa. 1988)).

      Finally, we note Appellant’s argument that the parties’ MSA was

incorporated, not merged, into the divorce decree. Appellant cites Jones v.

Jones, 651 A.2d 157, 158 (Pa. Super. 1994) for the proposition that

agreements incorporated into a divorce decree survive as enforceable

contracts and are governed by the law of contracts. Appellant’s Brief at 31.

We need not express any opinion on this argument, other than to note that

the present litigation is not a contract action.

      Based on all of the foregoing, we affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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