J-S60030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER LEHRMAN,                                IN THE SUPERIOR COURT OF
N/K/A JENNIFER DEIFER                                  PENNSYLVANIA

                            Appellant

                       v.

MICHAEL LEHRMAN

                            Appellee                 No. 3145 EDA 2015


              Appeal from the Order Entered September 16, 2015
             In the Court of Common Pleas of Northampton County
                 Civil Division at No(s): No. C-48-CV-2012-258


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 01, 2016

        Jennifer Lehrman, N/K/A Jennifer Deifer (Deifer), appeals from the

order entered in the Court of Common Pleas of Northampton County on

September 16, 2015, ordering her to return $42,250.00 to her ex-husband,

Michael Lehrman (Lehrman), and to pay $1,000.00 for attorney’s fees. In

this timely appeal, Deifer raises two issues. She claims (1) the trial court

erred in issuing the order without permitting her to conduct discovery or to

have a hearing on the matter, and (2) there is insufficient evidence to

support the order. The trial court considered Deifer’s actions to have been

an improper attempt at “self-help” to correct perceived injustices in the

parties’ property settlement. Our review of this matter shows that by taking
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*
    Retired Senior Judge assigned to the Superior Court.
J-S60030-16



the $42,500.00 at issue, Deifer was attempting to bypass a legal challenge

to the equitable distribution order that had been entered years earlier in

their divorce action.   Accordingly, after a thorough review of the certified

record, submissions by the parties and relevant law, we affirm.

      We relate the facts of this matter as stated by the trial court in its

Pa.R.A.P. 1925(a) opinion of April 1, 2016.

      On September 16, 2015, [Lehrman’s] counsel presented a
      Petition for Special Relief to the Court. [Deifer] and her counsel
      appeared in opposition. The circumstances as presented to the
      Court were that the parties were divorced and had executed a
      property settlement agreement, which provided that the marital
      home was to be sold and the proceeds split. N.T. 9/16/15 at 2.
      [Lehrman] deposited his share, $42,250, into a bank account, to
      which he believed [Deifer] no longer had access. Id. at 3.
      [Lehrman] learned that between July 28 and August 27, 2015,
      [Deifer] had withdrawn all the money from this account. Id. at
      4. As a result of the record made before the Court, it was
      ordered that: [Deifer] return the $42,250 withdrawn from the
      account within one day; and that [Deifer] pay [Lehrman] $1,000
      for counsel fees.

Trial Court Opinion, 4/1/2016 at 1.

      In addition to the above facts, Lehrman’s petition contains the

following relevant averments:

      5. Paragraph 5 of the Property Settlement Agreement provides
      that the parties shall sell the real estate located at 3828
      Dogwood Road, Danielsville, Northampton County, Pennsylvania
      18038 and shall split equally (50/50) the net proceeds from the
      sale of the property.

      6. The real estate was sold and each party received in excess of
      forty thousand dollars ($40,000.00).




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       7. [Lehrman] deposited his money in an account [] at National
       Penn Bank not knowing that [Deifer] still had access to this
       account.

       8. On July 28, 2015, [Deifer] unlawfully made two twenty
       thousand dollar ($20,000.00) withdrawals from the above
       account. See Exhibit “C.”

       9. On August 17, 2015, [Deifer] unlawfully withdrew one
       thousand dollars ($1,000.00) from the above account. See
       Exhibit “D.”

       10. On August 27, 2015, [Deifer] unlawfully withdrew one
       thousand two hundred fifty dollars ($1,250.00) from the above
       account. See Exhibit “E.”

       11. [Deifer] is not entitled to any of the money that she
       withdrew from this bank account.

       12. [Lehrman] is requesting that this Honorable Court enter an
       order directing [Deifer] to immediately return this money to him.

       13. [Lehrman] is requesting that this Honorable Court order Wife
       to pay attorney’s fees to [Lehrman] for having to prepare and
       present the instant petition.

Petition, 9/16/2015 at 1-2.1

       Paragraph 22 of the Property Settlement Agreement, dated September

16, 2013 and appended to the petition as Exhibit “B,” provides that if legal

action is required to effectuate the performance of the agreement, then the




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1
  Although the petition was docketed on the same date as the hearing before
the trial court, there is no claim that the petition was not timely served upon
Deifer. Indeed, the notes of testimony reveal that Deifer was present at the
hearing, had been sworn in to testify, and had brought bank records with
her. See N.T., 9/16/2015 at 6.



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party found to be in default shall pay all expenses, including reasonable

attorney’s fees, incurred in connection with such enforcement proceedings.

     Our standard of review is as follows:

     [A] petition for Special Relief, is authorized by Pa.R.C.P. 1920.43
     relating to divorce or annulment. A panel of this court has held
     that a grant of relief under this rule is within the sound discretion
     of the trial court and is an exercise of the court's equitable
     powers. Jawork v. Jawork, 378 Pa.Super. 89, 548 A.2d 290
     (1988). An appellate court will not reverse absent an abuse of
     that discretion. Id. See also, DeMatteis v. DeMatteis, 399
     Pa.Super. 421, 582 A.2d 666 (1990).

Frank v. Frank, 587 A.2d 340, 342 (Pa. Super. 1991).

     Additionally, Rule 1920.43 states, in relevant part:

     (a) At any time after the filing of the complaint, on petition
     setting forth facts entitling the party to relief, the court may,
     upon such terms and conditions as it deems just, including the
     filing of security,

        (1) issue preliminary or special injunctions necessary to
        prevent    the   removal,     disposition, alienation  or
        encumbering of real or personal property in accordance
        with Rule 1531(a), (c), (d), and (e); or

        (2) order the seizure or attachment of real or personal
        property; or

        (3) grant other appropriate relief.

Pa.R.C.P. 1920.43(a)(1), (2), (3).

     In Deifer’s first issue, she claims the trial court erred in disposing of

Lehrman’s petition without permitting her to conduct discovery and have a

full hearing to challenge the allegations. Deifer bases her argument on the

requirements found in the Pennsylvania Rules of Civil Procedure 206.4,


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206.6, and 206.7, as well as local rule N206.4(c). The Pennsylvania rules

require the petitioner to append a rule to show cause to the petition, 2 allows

the respondent 20 days to file an answer3 and then provides for the taking

of discovery as to disputed facts.4 However, this argument does not account

for Pa.R.C.P. 206.1 which defines “petition” as “an application to strike

and/or open a default judgment or a judgment of non pros,” or “any other

application which is designated by local rule, numbered Local Rule 206.1(a),

to be governed by Rule 206.1 et seq.”5 Lehrman’s petition did not seek to

open or strike a default judgment or non pros and Deifer has not referred to

or provided this Court with a copy of Local Rule N206.1(a).       In fact, the

official website for the Northampton County Court of Common Pleas does not

list a Local Rule N.206.1(a).6 Accordingly, as there is no N206.1(a), we do

not agree with Deifer that the instant petition is governed by the attendant

rules she has cited.      Rather, we agree with Lehrman that his petition was

filed pursuant to Pa.R.C.P. 1920.43, supra, which allows the trial court

greater discretion in the manner of proceeding.

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2
    Pa.R.C.P. 206.4(a)(1).
3
    Pa.R.C.P. 206.6(a).
4
    Pa.R.C.P. 206.7(a)-(d).
5
    Pa.R.C.P. 206.1(a) and (b), respectively.
6
    See http://courtrule.northamptoncounty.org/



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         Rule 1920.43 specifically addresses requests for special relief in

matters relating to divorce. The subject matter of the instant petition was

funds derived from the sale of marital property.          Specifically, Lehrman

alleged Deifer had improperly removed his share of the proceeds of the sale

of the marital home and was refusing to return same. We believe this brings

the petition fairly within the scope of Rule 1920.43.

         Due to the emergency nature of Lehrman’s petition, we find no abuse

of discretion in the trial court’s refusal to grant Deifer extended time to

conduct discovery. Also, as the trial court points out in its Pa.R.A.P. 1925(a)

opinion, the resolution of the petition simply returns the parties to the status

quo ante and does nothing to preclude Deifer from filing her own challenge

to the property settlement, thereby seeking the funds to which she believes

she is entitled. In light of the above, Deifer is not entitled to relief on this

issue.

         In her second issue, Deifer contends there was insufficient evidence to

support the trial court’s grant of relief. We disagree.

         As noted above, the trial court granted relief pursuant to Pa.R.C.P.

1920.43.      As such, the petition is essentially an appeal to the equitable

powers of the court and the grant of relief is within the sound discretion of

the trial court. Argument was held before the court on September 16, 2015,

and was based upon the factual averments contained in the petition. The

trial judge had before her those averments, the certified record, exhibits, as

well as the arguments by counsel. The parties were sworn in to testify, but

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neither did.   However, there is nothing in the notes of testimony that

indicates the parties were forbidden from testifying.   The certified record

demonstrates the parties entered into a property settlement agreement on

September 6, 2013 and were subsequently divorced in September 20, 2013.

Counsel for Deifer reviewed the bank statements counsel for Lehrman

brought to court and conceded the statement showed a $41,069.30 deposit

had been made on September 30, 2013, after the divorce and at the time of

closing on the sale of the marital home. N.T. 9/16/2015 at 11, 13. The trial

judge had before her the exhibits clearly demonstrating that Deifer had

withdrawn $42,500.00 from the account in question, in July and August,

2015, approximately two years after Lehrman deposited the funds.        See

Petition for Emergency Relief, 9/16/2015, Exhibits “C”, “D”, and “E”. These

facts were not contested at argument.    Lehrman argued Deifer had taken

the money because she believed she was owed money from Lehrman’s

401(k). N.T. 9/16/2015 at 4-5.   Further, counsel for Deifer also conceded

Deifer did not agree with the court’s resolution of Lehrman’s 401(k). Id. at

8. Counsel for Deifer also opined Deifer was owed money because she had

provided in excess of $50,000.00 while Lehrman was in prison to keep the

home from foreclosure. Id. at 7-8. No matter her reasoning, counsel for




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Deifer argued she took money from what proved to be a joint account and,

therefore, she was simply entitled to take the money.7

        The trial court made no determination regarding the ultimate merits of

either Lehrman’s or Deifer’s underlying claims.        Without conceding the

merits of either parties’ position, the trial court noted that even if Deifer

were to be proven correct, she had engaged in “self-help”8 by simply taking

money from Lehrman. This she was not entitled to do. The equities of the

matter, at that time, therefore resided with Lehrman, and the court’s order

simply returned the parties to their original position prior to Deifer’s attempt

at “self-help.”

        We also note that an effect of Deifer’s actions, had relief not been

granted, would have been to shift the ultimate burden of proof from Deifer

to Lehrman.       Deifer believed that the property settlement agreement was

tainted by Lehrman’s failure to properly disclose information and by the

court’s failure to account for money she contributed while Lehrman was




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7
   Rule 1920.43 incorporates by reference Pa.R.C.P. 1531 regarding
injunctive relief. Rule 1531 grants the trial court broad equitable powers to
issue, under certain circumstances, preliminary or special injunctions without
a hearing and based upon averment. Given the equally broad equitable
powers granted the trial court under Rule 1920.43, it appears the trial court
would have the same ability to grant such relief as necessary, subject to an
abuse of discretion.
8
    N.T., 9/16/2015 at 5.



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incarcerated, so she took money from him.9 However, the proper method of

challenging the property settlement is through legal proceedings, not by

simply taking money. In such a proceeding, Deifer would have the burden

of proof of demonstrating grounds to set aside the property settlement

agreement. Here, instead, Deifer seeks to have Lehrman prove she was not

entitled to the money. Such a shifting of the burden of proof would be an

inequitable result, essentially encouraging a party who believed he or she

was entitled to property to simply take it, in order to force the opposing

party into action for the return of it.

       Accordingly, Deifer is not entitled to relief on this issue.

       Order affirmed.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016



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9
  Deifer, in her Rule 1925(b) statement claims Lehrman intentionally
misrepresented the status of his 401(k), as well as leading her to incorrectly
believe that certain items of property including a four-wheeler,
Harley-Davidson motorcycle, guns and cash, had been forfeited to the
Commonwealth as a result of his criminal prosecution. See Pa.R.A.P.
1925(b) statement at 1-2.



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