IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVL ACTION – LAW

WILLIAM D. DUNHAM                      :  NO. 2003-20826

                                                          :

1. v.                                             :

: 

WANDA K. DUNHAM                       :  

APPEARANCES:

Julieane E. Fry, Esquire                 For William D. Dunhman

BENTLEY LAW OFFICES, P.C.

M. Jannifer Weiss, Esquire            For Wanda K. Dunham

WEISS, WEISS & WEISS

OPINION BY CHARLES, J., May 22, 2012

In the game of golf, friendly competitors will sometimes grant each other “mulligans”.  A “mulligan” allows a player to replay an errant shot.  When a “mulligan” is granted, the initial errant shot is essentially erased. In this case, William Dunham (hereafter “HUSBAND”) asks us to grant him a “mulligan” with respect to the above-referenced divorce litigation.  Unfortunately, for HUSBAND, “mulligans” do not exist within the Pennsylvania Rules of Civil Procedure governing divorce disputes.

I.        FACTS

HUSBAND and Wanda K. Dunham (hereafter “WIFE”) separated in October of 2008. Two months later, HUSBAND filed a Complaint seeking equitable distribution of their marital property. The parties’ divorce and equitable distribution dispute proceeded relatively slowly. On March 5, 2010, Special Master Ann Kline (hereafter “SM”) was appointed to conduct an analysis of the parties’ equitable distribution dispute.

A hearing was conducted before the SM on December 2, 2010. Unfortunately, insufficient documentation was presented at this hearing for the SM to make an equitable distribution. On December 21, 2010, the SM wrote a letter to the parties setting forth the additional documentation she required.  No response was forthcoming. On February 1, 2011, the SM again wrote HUSBAND’s lawyer and set forth a deadline of February 11 for production of documents. This request was also ignored. On February 22, 2012, the SM wrote HUSBAND’s lawyer for a third time seeking the documents she needed in order to render a decision.  Once more, no response was forthcoming.

On March 2, 2011, the SM took the unusual step of seeking assistance from the Court via a Motion to Compel. This Court issued an Order granting HUSBAND ten additional days to forward the requested documents.  HUSBAND again ignored our Order.  As a result, we scheduled a hearing for May 2, 2011. At that hearing, the parties reached a partial stipulation that we documented within our Court Order. That stipulation set forth agreed-upon values for certain assets “for purposes of equitable distribution”.

The SM closed the record on October 13, 2011.  WIFE filed her brief on November 10, 2011. Not surprisingly, HUSBAND failed to file any brief.

On November 18, 2011, the SM filed her Report and Recommendation.  On December 7, 2011, HUSBAND filed four Exceptions.  WIFE timely filed a Brief in Opposition to HUSBAND’s Exceptions on February 17, 2012. HUSBAND did not.  Ultimately, we issued an Opinion on March 20, 2012. We began that Opinion by stating:

If a man chooses to fall asleep in a hungry lion’s den, he will not be heard to complain when he is awoken by a bite. In this case, William D. Dunham (hereafter “HUSBAND”) fell asleep within the lion’s den of divorce litigation by ignoring his obligation to provide necessary information to a Special Master. Now that he has been “bitten” by a decision he does not like, his primary complaints will fall upon deaf ears.

(Slip Opinion at pg. 1).

On April 18, 2012, HUSBAND filed a Motion for Reconsideration. In his Motion for Reconsideration, HUSBAND alleged that his prior counsel failed to communicate with him. Within HUSBAND’s Motion for Reconsideration, he stated: “But for the lack of communication with prior counsel all documents requested by the Special Master and this Honorable Court would have been turned over in a prompt manner.” (Motion for Reconsideration at pg. 10).  As a result of what HUSBAND characterized as “egregious error on behalf of prior counsel”, he asked us to reopen the record and order that another hearing before the SM take place.  We declined to do so.

On April 19, 2012, HUSBAND filed an appeal.  We issued an Order of Court on April 24 requiring HUSBAND to file a Statement of Errors Complained of on Appeal.  He did so on May 15, 2012. Most of the issues set forth in his Statement of Errors Complained of on Appeal were already addressed in our Opinion dated March 20, 2012 and we will rest upon the contents of that Opinion. We issue this opinion to briefly address HUSBAND’s claims of negligence hurled at his prior lawyer.

II.       DISCUSSION

A Trial Court always retains the authority to reconsider its own decision.  However, “a Motion for Reconsideration is addressed to the sound discretion of the Trial Court”.  Moore v. Moore, 634 A.2d 163, 166 (Pa. 1993). Generally speaking, a Court’s decision to refuse reconsideration will only be reversed upon a finding of abuse of discretion.  Fleeher v. Cmwlth. Dept. of Transportation Bureau of Driver Licensing, 850 A.2d 34 (Pa.Cmwlth. 2004); Sherman v. Yoder, 430 A.2d 347 (Pa.Cmwlth. 1981).

In this case, HUSBAND essentially seeks a “re-do” of his entire divorce litigation.  He asks us to turn back the hands of time and order that the Special Master receive additional testimony and evidence that HUSBAND’s first counsel failed to present.  He asks us to do so because of what he described as “egregious error” on the part of his prior counsel.

We have found no appellate cases dealing with reconsideration of an equitable distribution decision based upon negligence of counsel. However, we draw guidance from a considerable body of case law that governs conduct of counsel in civil cases.  Generally speaking, our appellate courts have stated that attorney dilatoriness or “failure to act with knowledge of the implications” are inadequate grounds for reconsideration.  Davis v. Burton, 529 A.2d 22 (Pa.Super. 1987); Shainline v. Alberti Builders, 403 A.2d 577 (Pa.Super. 1979). The allegations proffered by HUSBAND represent a pattern of “dilatoriness” and “failure to act with knowledge of the implications” that HUSBAND claims was so severe as to implicate his “due process rights” (See ¶¶ 7, 8 and 9 of Statement of Errors Complained of on Appeal).  Relying upon the general principles articulated in Davis and Shainline, trial counsel’s conduct will not be deemed to justify reconsideration.

In addition to the above, we have practical concerns about the fairness of affording HUSBAND with a “re-do”.  For the past two years, WIFE and WIFE’s counsel have played by the rules. They appeared whenever required to do so. They presented documentation that was requested of them. Briefs were filed in a timely fashion.  Without question, playing by the rules cost WIFE money in terms of attorney’s fees and costs.  If we were to permit HUSBAND to re-litigate everything from scratch, all of the money expended by WIFE to comply with the appropriate rules would have been wasted.

Perhaps even more important than money is the time that it would require to re-litigate all of the issues requested by HUSBAND.  The parties have been involved in divorce litigation since 2008.  WIFE has an understandable desire to sever her marital ties with HUSBAND. By our March 20, 2012 Court Order, we did just that. If we were to afford HUSBAND with a “re-do”, WIFE’s ability to move forward with her life will be delayed, probably for a period measured in years. Stated simply, we believe WIFE deserves finality sooner rather than later, especially given that she was not at fault in causing the situation of which HUSBAND now complains.

Inconvenience is another factor we have considered.  As a Court, we have provided the parties with a Special Master who expended considerable time to analyze the parties’ dispute.  WIFE herself was inconvenienced by attending Court hearings, meeting with counsel and providing necessary documentation.  If we were to afford HUSBAND with the ability to re-litigate issues from the beginning, both WIFE and the judicial system would suffer what we would characterize as unnecessary and unconscionable additional inconvenience.

We remind HUSBAND that he chose to hire his prior counsel.  When a client engages an attorney, the attorney becomes the agent of the client and “any acts performed or statements made by the attorney within the scope of his or her employment and authority are binding upon the client”. Weiner v. Lee, 669 A.2d 424, 428 (Pa.Cmwlth. 1995). If in fact HUSBAND’s allegations of misconduct on the part of his attorney are true, he may in fact have suffered some financial harm as a result.  However, he is not without remedy.  HUSBAND retains the ability to initiate a legal malpractice action against his former attorney.  If he can establish the type of “egregious error” of which he now complains, he may in fact have a cause of action against his prior lawyer.

In our opinion, affording HUSBAND the ability to re-litigate equitable distribution would work a substantial hardship upon WIFE. When a party such as WIFE plays by the rules established for litigation and is willing to accept the outcome, the opposing party should not be able to gain a “mulligan” simply by alleging that his attorney should have fulfilled his duties in a different manner.  For this reason, and all others outlined above, we did not err when we denied HUSBAND’s Motion for Reconsideration.

We will now give the above-referenced case to the Pennsylvania Superior Court.