Judges Opinions, — June 12, 2013 10:33 — 0 Comments

REINHART vs. KLINE No. 2012-5-0637

 Domestic Relations – Support – Notice – Mailbox Rule – Lebanon County Domestic Relations Office Procedure – Review Granted Responsible Litigant – Exceptions.

 

  1. Notice in a support case is governed by Pa.R.C.P. 1910.6 which states that parties to a support action and their attorneys shall be provided notice of all proceedings in which support obligations might be established or modified.  Notice must be provided at least 20 days prior to the proceeding.  The parties and their attorneys shall also be provided with a copy of any order issued in the support action within 14 days after issuance of the order.
  2. An attorney representing a party in a support action shall not be deemed to be representing that party in any other action, nor shall a withdrawal of appearance in a support action be deemed to be a withdrawal of appearance for the party in any other proceeding.
  3. Rule 19101.6 does not establish a specific method of affording notice.  However, our Superior Court has noted methods of notice properly used by the prothonotary include, but are not limited to, service via United States mail and courthouse mail.
  4. The mailbox rule provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.
  5. Evidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was, in fact, received by the party to whom it was addressed.
  6. In order for the mailbox rule presumption to be triggered, the party seeking the benefit of the rule must produce evidence that a letter was written and signed in the ordinary course of business and deposited in a place of mailing that was known to be effective.
  7. Evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.
  8. The question of whether an individual item was actually prepared and mailed is a purely factual determination and there is no presumption applicable to the resolution of such a question.
  9. Typically, hearing notices are mailed by clerical employees who cannot be expected to have recollection of any specific case.  Therefore, notice is almost always established via testimony from an individual who has personal knowledge of the standard business practices employed to place documents in to the stream of the mail.  The sufficiency of such evidence has been addressed with some frequency by our appellate courts.
  10. Purely generic testimony cannot trigger the mailbox rule.
  11. Where a party claims that he/she did not receive proper notice of a child support proceeding, some proof must be presented on the record that the notice was properly created and mailed by the Lebanon County Domestic Relations Office.  Provided some type of proof of mailing is created, the mailbox rule will be triggered.  Under Pennsylvania’s mailbox rule, a presumption will be applied that the mailed notice was actually received by the addressee.
  12. Until or unless a support litigant establishes by a pattern of conduct that he/she is irresponsible, the Court in Lebanon County will afford a non-appearing litigant with the benefit of the doubt and grant a prompt but prospective right to have the support order entered in his/her absence reviewed.
  13. Because Father did not present evidence sufficient to rebut the presumption created by the Pennsylvania mailbox rule, the notice sent to him was deemed by the Court to have been received by Father.  Accordingly, the result of the DRM’s hearing was affirmed and Father’s exception based upon lack of notice denied.  However, because the failure by Father to attend the hearing appeared to be an isolate aberration, the Court afforded Father with an immediate right to a review of the support order it entered based upon the DRM’s recommendation.

Exceptions.  C.P. of Lebanon County, Civil Action-Law, No. 2012-5-0637, PACSES No. 104113422.

Eleanor M. O’Donnell, Esquire, for Plaintiff

Erin Zimmerer, Esquire, for Defendant

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

BRITTANY E. REINHART                :  NO. 2012-5-0637

                                                          :  PACSES NO.: 104113422

  1. v.                                             :

ZACHARY M. KLINE                        :  

 

 

 

ORDER OF COURT

 

AND NOW, to wit, this 22nd day of April, 2013, in accordance with the attached Opinion, the Exceptions of Zachary M. Kline to the Recommendation of the Domestic Relations Master are denied.  However, the Court will slightly modify the Recommendation of the Domestic Relations Master by directing that the Lebanon County Domestic Relations Office schedule an immediate review hearing as set forth below.  The Order of this Court is as follows:

The temporary Order of Court, dated February 6, 2013, is MADE PERMANENT AS INDICATED BELOW.  It is further ordered as follows:

This Order shall be effective August 1, 2012.                  

The amount of support to be paid by Defendant is: $306.00 per month for child support for one child, to wit, Nevaeh Skye Reinhart.  Effective February 1, 2013, Defendant shall pay $294.19 per month for one child.  Defendant shall pay $10.00 per month toward birthing expenses of $9,088.17 and $5.00 per month toward genetic testing costs of $96.00.  The amount to be paid by Defendant on accumulated arrears is: $29.41 per month.

The Lebanon County Domestic Relations Office is directed to schedule a review of this Order before a Domestic Relations Master as promptly as practical.  At said review, the Domestic Relations Master shall have the authority to enter a recommendation retroactive to the date of this Order.

The JCS Fee of $23.50 shall be paid by: Defendant.

Arrears are due in full IMMEDIATELY.  All terms of this Order are subject to collection and/or enforcement by contempt proceedings, credit bureau reporting, tax refund offset certification, driver’s license revocation, and the freeze and seizure of financial assets.  These enforcement/collection mechanisms will not be initiated so long as Obligor does not owe overdue support.  Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all the means listed above.

The monthly support obligation includes cash medical support in the amount of $250 annually for un-reimbursed medical expenses incurred for each child and/or spouse.  Un-reimbursed medical expenses of Obligee or children that exceed $250 annual shall be allocated between the parties.  The party seeking allocation of the un-reimbursed medical expenses must provide documentation of the expenses to the other party no later than March 31st of the following calendar year in which the final medical bill to be allocated was received.  The un-reimbursed medical expenses are to be paid as follows:  54% by Defendant and 46% by Plaintiff.  Defendant/Plaintiff/Neither party to provide medical coverage _____________________________________________________________________________:

IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):

   X  The defendant is ordered to cover the dependent(s) with health care coverage whenever it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of defendant’s net monthly income and does not exceed 50% of defendants net monthly income when added to the basic child support plus additional expenses,.

   X  Health care coverage is currently not available at a reasonable cost to defendant.  Therefore, plaintiff is ordered apply for government-sponsored coverage, such as Children’s Health Insurance Program (CHIP).  The cost of said coverage shall not exceed 5% of plaintiff’s net monthly income.

_____Health care coverage is currently not available at a reasonable cost to defendant.  Therefore, plaintiff is ordered to cover the dependent(s) with health care coverage if it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of plaintiff’s net income

IT IS FURTHER ORDERED:

Within 30 days after the entry of this order, the party ordered to provide health care  coverage shall provide written proof to the Lebanon County Domestic Relations Office and the other party that medical insurance has been obtained, including insurance cards and any other material necessary to utilize the coverage.

If Health Insurance is currently unavailable to the party/parties ordered to provide it, such proof shall be provided to Lebanon County Domestic Relations within 7 days of the date of this order.

If Health Insurance coverage is now available or becomes available to the party/parties ordered to provide it, the party/parties shall provide proof of the cost to Lebanon County Domestic Relations within 7 days of the date of availability.

ADDITIONAL RECOMMENDATIONS:  None.

Within thirty (30) days after the entry of this Order, the party or parties providing insurance shall submit to the person having custody of the child(ren) written proof that medical insurance coverage has been obtained or that application for coverage has been made.  Proof of coverage shall consist, at a minimum, of: 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms.

Payments must be made by check or money order. Said money to be turned over by the Pa SCDU for distribution and disbursement in accordance with Rule 1910.17(d). All checks and money orders must be made payable to Pennsylvania State Collection & Disbursement Unit and mailed to P.O. Box 69110, Harrisburg, PA 17106-9110.  Each payment must bear your social security number and member number in order to be processed.

IMPORTANT LEGAL NOTICE

PARTIES MUST WITHIN SEVEN DAYS INFORM THE DOMESTIC RELATIONS SECTION AND THE OTHER PARTIES, IN WRITING, OF ANY MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO THE LEVEL OF SUPPORT OR THE ADMINISTRATION OF THE SUPPORT ORDER, INCLUDING, BUT NOT LIMITED TO, LOSS OR CHANGE OF INCOME OR EMPLOYMENT AND CHANGE OF PERSONAL ADDRESS OR CHANGE OF ADDRESS OF ANY CHILD RECEIVING SUPPORT. A PARTY WHO WILLFULLY FAILS TO REPORT A MATERIAL CHANGE IN CIRCUMSTANCES MAY BE ADJUDGED IN CONTEMPT OF COURT, AND MAY BE FINED OR IMPRISONED.

 

PENNSYLVANIA LAW PROVIDES THAT ALL SUPPORT ORDERS SHALL BE REVIEWED AT LEAST ONCE EVERY THREE (3) YEARS IF SUCH REVIEW IS REQUESTED BY ONE OF THE PARTIES. IF YOU WISH TO REQUEST A REVIEW AND ADJUSTMENT OF YOUR ORDER, YOU MUST DO THE FOLLOWING: CALL YOUR ATTORNEY. AN UNREPRESENTED PERSON WHO WANTS TO MODIFY (ADJUST) A SUPPORT ORDER SHOULD CONTACT THE DOMESTIC RELATIONS SECTION.

 

ALL CHARGING ORDERS FOR SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE, INCLUDING UNALLOCATED ORDERS FOR CHILD AND SPOUSAL SUPPORT OR CHILD SUPPORT AND ALIMONY PENDENTE LITE, SHALL TERMINATE UPON DEATH OF THE PAYEE.

 

A MANDATORY INCOME ATTACHMENT WILL ISSUE UNLESS THE DEFENDANT IS NOT IN ARREARS IN PAYMENT IN AN AMOUNT EQUAL TO OR GREATER THAN ONE MONTH’S SUPPORT OBLIGATION AND (1) THE COURT FINDS THAT THERE IS GOOD CAUSE NOT TO REQUIRE IMMEDIATE INCOME WITHHOLDING; OR (2) A WRITTEN AGREEMENT IS REACHED BETWEEN THE PARTIES WHICH PROVIDES FOR AN ALTERNATE ARRANGEMENT.

 

UNPAID ARREARS BALANCES MAY BE REPORTED TO CREDIT AGENCIES. ON AND AFTER THE DATE IT IS DUE, EACH UNPAID SUPPORT PAYMENT SHALL CONSTITUTE, BY OPERATRION OF LAW, A JUDGEMENT AGAINST YOU, AS WELL AS A LIEN AGAINST REAL PROPERTY.

 

IT IS FURTHER ORDERED that, upon payer’s failure to comply with this order, payer may be arrested and brought before the Court for a Contempt hearing; payer’s wages, salary, commissions, and/or income may be attached in accordance with law; this Order will be increased without further hearing by 10 % a month until all arrearages are paid in full.  Defendant is responsible for court costs and fees.

BY THE COURT:

 

 

                                                                    _______________________________, Judge

cc:     Domestic Relations

          Brittany E. Reinhart

          Zachary M. Kline

 

         

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

BRITTANY E. REINHART                :  NO. 2012-5-0637

                                                          :  PACSES NO.: 104113422

  1. v.                                             :

ZACHARY M. KLINE                        :  

 

APPEARANCES:

Eleanor M. O’Donnell, Esquire                For  Brittany E. Reinhart

DOMESTIC RELATIONS OFFICE

 

Erin Zimmerer, Esquire                            For Zachary M. Kline

MONTGOMERY & ZIMMERER

 

 

OPINION BY CHARLES, J., April 22, 2013

 

We issue this Opinion to address an argument that is being presented in Domestic Relations Court with more and more frequency – “I did not attend the hearing because I did not receive notice.”  On some occasions, the absentee party blames others in his/her household for disregarding and/or intercepting mail.  On some occasions, the absentee party says that he/she moved and “telephoned my new address” to the Domestic Relations Office.[1]  On still other occasions, the absentee party blames the post office for the failure of notice.  Whatever the reason, the absentee party routinely asks us to vacate whatever action was taken in his/her absence.  Our intent today is to provide precedential guidance to support litigants and the Lebanon County Domestic Relations Office that can be relied upon whenever a future party says:  “I did not know about the hearing.”

 

I.        LEGAL PRINCIPLES

 

Notice in a support case is governed by Pa.R.C.P. 1910.6.  That rule states:

Rule 1910.6.  Notification.

 

Parties to a support action and their attorneys shall be provided notice of all proceedings in which support obligations might be established or modified.  Notice must be provided at least 20 days prior to the proceeding.  The parties and their attorneys shall also be provided with a copy of any order issued in the support action within 14 days after issuance of the order…An attorney representing a party in a support action shall not be deemed to be representing that party in any other action, nor shall a withdrawal of appearance in a support action be deemed to be a withdrawal of appearance for the party in any other proceeding.

 

Pa.R.C.P. 1910.6.  Rule 19101.6 does not establish a specific method of affording notice.  However, our Superior Court has noted “[m]ethods of notice properly used by the prothonotary include, but are not limited to, service via United States mail and courthouse mail.”  Murphy v. Murphy, 988, A.2d 703, 709 (Pa.Super. 2010) (citing Pa.R.C.P. 236).

When regular United States Postal Service mail is employed as a method of delivering documentation, special rules exist.  Most pertinent to this case is the so-called “mailbox rule.”  Succinctly stated, the mailbox rule provides that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.  In re Cameron’s Estate, 130 A.2d 173, 177 (Pa. 1957).  In employing the mailbox rule, our Supreme Court has stated: “The overwhelming weight of statistics clearly indicates that letters properly mailed and deposited in the post office are received by the addressees.”  Meierdierck v. Miller, 147 A.2d 406, 408 (Pa. 1959).  As a result, “[e]vidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed.”  Shafer v. A.I.T.S., Inc., 428 A.2d 152, 156 (Pa.Super. 1981).

In order to invoke the mailbox rule, a party cannot simply say:  “It must have been placed in the mail; therefore there is a presumption that it was received.”   As our Commonwealth Court has stated:  “A presumption that a letter was received cannot be based on a presumption that the letter was properly mailed.”  Commonwealth Dept. of Transp. Bureau of Driver Licensing v. Whitney, 575 A.2d 978, 979 (Pa.Cmwlth. 1990).  In order for the mailbox rule presumption to be triggered, the party seeking the benefit of the rule must produce evidence that a letter was written and signed in the ordinary course of business and deposited in a place of mailing that was known to be effective.  Commonwealth v. Thomas, 814 A.2d 754, 758 (Pa.Super. 2002).  “[E]vidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.”  Christie v. Open Pantry Food Marts, Inc. of Delaware Valley, 352 A.2d 165, 166-167 (Pa.Super. 1975).  As our Superior Court has emphasized:  “The question of whether an individual item was actually prepared and mailed is a purely factual determination and…there is no presumption applicable to the resolution of such a question.”  Commonwealth v. Thomas, supra at 761.

Not surprisingly, the mailbox rule is often implicated with respect to hearing notices.  Typically, hearing notices are mailed by clerical employees who cannot be expected to have recollection of any specific case.  Therefore, notice is almost always established via testimony from an individual who has personal knowledge of the standard business practices employed to place documents into the stream of mail.  The sufficiency of such evidence has been addressed with some frequency by our appellate courts.

In Samaras v. Hartwick, 698 A.2d 71 (Pa.Super. 1997), a notice terminating a civil case for inactivity was generated by the Bucks County Court Administrator’s Office.  The Prothonotary’s Office mailed the notices to both attorneys, but Plaintiff’s attorney testified that he never received the notice.  The Trial Court found the attorney’s testimony to be credible and declared that notice was never properly given.  The Superior Court reversed.  The Superior Court held that testimony from the Bucks County Court Administrator properly established a computer-generated process by which county mail was generated and sent.  The Court held that such testimony was sufficient to rebut the attorney’s claim of non-receipt.  The Court stated:

Faced with this conflicting evidence [between the attorney and the court administrator], the trial court apparently chose to credit Attorney Jokelson’s testimony as the more believable.  It was not, however, the province of the court to weigh, as would a factfinder, the testimony presented.  Rather, it has long been the law of our Commonwealth that “proof of a mailing raises a rebuttable presumption that the mailed item was received and it is well-established that the presumption under the mailbox rule is not nullified solely by testimony denying receipt of the item mailed.”

 

With this legal principle in mind, we hold that the testimony offered by the Court Administrator was sufficient to raise the rebuttable presumption that the notice was duly mailed and received by Attorney Jokelson.  Once this presumption is in place, the party claiming that it did not receive the notice has the burden of establishing such.  As previously stated, merely asserting that the notice was not received is insufficient to overcome the presumption.  This, however, was the extent of the evidence proffered by Attorney Jokelson and accepted by the trial court.  Because the trial court’s holding was directly contrary to the binding precedent of our Commonwealth, we find that the trial [court] committed an error of law in determining that Attorney Jokelson’s petition was timely filed.

 

Id. at 73-74 (citing numerous cases, including Commonwealth Dept. of Transp. v. Grasse, 606 A.2d 544, 545 (Pa.Cmwlth. 1991)); See also Donegal Mut. Ins. Co. v. Pennsylvania Dept. of Ins., 694 A.2d 391 (Pa.Cmwlth. 1997) (producing a certificate of mailing signed by the individual who placed a document in the mail was sufficient to invoke the mailbox rule).

On the other hand, the Superior Court in Commonwealth v. Thomas, supra, cautions us that purely “generic testimony” cannot trigger the mailbox rule.  In Thomas, a hearing notice was contained in the Clerk of Courts file.  It was unaccompanied by any certified of service or other similar document that would reflect to whom and where the notice was mailed.  All that was presented was generic testimony from a clerk indicating “if the hearing notice was in the file, it must have been mailed to the Defendant.”  The Superior Court held that this was not enough to invoke the mailbox rule and stated:

The Commonwealth, as the party which sought to invoke the mailbox rule presumption that Appellant received the notice of the hearing, had the burden of proof to show that the notice was in fact mailed, or that it had been prepared and placed in the regular place of mailing.  Shafer, supra.  This burden the Commonwealth did not meet.  Merely producing an un-timestamped copy of a hearing notice contained in the Clerk of Courts file, and offering generic testimony as to the standard mailing procedures for summary appeal hearing notices in Beaver County was insufficient.

 

Id. at 760.

The mailbox rule has been invoked in a child support context.  In Murphy v. Murphy, 988 A.2d 703 (Pa.Super. 2010), a father/support obligor requested a support hearing and one was originally scheduled for May 2, 2008.  This hearing was postponed until June 12, 2008.  Notice of the rescheduled hearing date was sent to father at his last known address.  Father did not appear.  He later claimed that he never received notice.  The Superior Court applied the mailbox rule.  In doing so, the Court emphasized that the hearing notice contained “NS” and “Service Type M.”  Testimony was presented that “NS” was an accepted acronym for “notice sent” and that “Service Type M” revealed that the Domestic Relations Office had sent the notice to father’s address via regular mail.  Testimony regarding this process was held to be sufficient to trigger the mailbox rule.  The Court stated:

The May 30, 2008 docket entry established proof of mailing and triggered the mailbox-rule presumption that Father received the order.  To rebut the mailbox rule presumption Father offered only his mere assertion that he had not received notice of the June 12, 2008 support hearing.  As a result, Father did not rebut the mailbox rule presumption…

 

Based upon the foregoing, we hold the court properly found Father had sufficient notice of the rescheduled support hearing at issue.

 

Id. at 710-11 (internal citations omitted).

 

II.       PRACTICAL CONSIDERATIONS

With respect to an issue as fundamental as notice, it is incumbent upon a court to evaluate not only what the law requires, but also what justice demands.  We recognize that the mailbox rule can be potentially far-reaching, and we must always be careful not to overreach.

There are support obligors who live in apartment complexes that do not have secure mail drop locations.  There are other support obligors who share a residence with other people.  When mail is sent to these types of residences, it could become misdirected, lost or even intercepted.  In short, there is a risk that even properly mailed documents will not find their way into the hands of the individual for whom notice was intended.  This is a risk that we cannot and will not ignore.

On the other hand, we are not naïve.  We recognize that “I did not receive notice” can become a very convenient excuse for an irresponsible obligor who oversleeps or simply does not want to attend a hearing on a particular date.  If we were to ignore the mailbox rule and grant a “re-do” to everyone who claims not to have received notice, procedural chaos would result within the Lebanon County child support process.

Somehow, we must balance the legitimate need of the Domestic Relations Office for procedural certainty with the recognition that notices sometimes “slip through the cracks” and are not actually received.  At the same time, as we seek to balance these practical considerations, we must always be aware of our obligation to comply with the mailbox rule and other established Pennsylvania precedent.  This duty will not always be an easy task.

 

III.      LEGAL HOLDING

After considering everything outlined above, we determine that the following analytical paradigm should be applied to any case where a party claims that he/she did not receive proper notice of a child support proceeding:

(1)     Some proof must be presented on the record that the notice was properly created and mailed by the Lebanon County Domestic Relations Office.[2]  Provided some type of proof of mailing is created, the mailbox rule will be triggered.

(2)     Under Pennsylvania’s mailbox rule, a presumption will be applied that the mailed notice was actually received by the addressee.

(3)     The mailbox rule presumption is rebuttable.  However, more than mere “I did not receive notice” testimony is required to rebut the mailbox rule presumption.[3]

(4)     If the mailbox rule presumption is invoked and not rebutted, the result of the hearing that was conducted in the absence of the allegedly non-notified party will stand.  For example, if an individual fails to appear at a hearing before the Domestic Relations Master, we will not sustain exceptions based upon a lack of notice argument.

(5)     On the other hand, so long as the allegedly non-notified party has not displayed a history of non-cooperation and non-appearance, we will liberally provide that party with a prompt opportunity for a review of the determination that was entered without his/her presence.  We will do so because we recognize the following:

  • Sometimes even properly mailed notices are inadvertently misplaced, misdirected, or even intentionally intercepted.
  • We cannot presume that everyone who fails to appear at a hearing is irresponsible.  Fallible human beings will sometimes forget to note a hearing date on their calendar, or perhaps place a wrong date on their calendar.

The above paradigm affords the Domestic Relations Office and Domestic Relations Masters with the ability to conduct hearings when proper proof of mailing exists.  Unless evidence is presented to corroborate the absentee party’s lack of notice claim, the result of the hearing will not be overturned on appeal.  In a very real sense, support litigants will have to recognize that there will be procedural consequences whenever an individual chooses not to attend a support proceeding and those consequences will not often be reversed via an appeal to the Court of Common Pleas.

On the other hand, for support litigants who have not displayed a history of non-cooperation or non-appearance, we will mitigate the harshness that will often flow from a hearing that is conducted in abstentia.  Important issues such as child support should be based upon the true circumstances of the parties.  The truth can rarely be discerned without involvement of both parties in the process.  Ultimately, children will suffer if one of their parents is subject to a support order that is based upon supposition rather than reality.  At least until or unless a support litigant establishes by a pattern of conduct that he/she is irresponsible, we intend to afford a non-appearing litigant with a “benefit of the doubt.”  We will do so by directing that an otherwise cooperative support litigant who fails to appear should be granted a prompt but prospective right to have the support order entered in his/her absence reviewed.

 

IV.     APPLICABILITY OF HOLDING TO THIS CASE

In this case, Zachary M. Kline (hereafter “FATHER”) failed to attend a hearing conducted before a Domestic Relations Master (DRM).  The hearing was scheduled for January 31, 2013 at 10:00 a.m.  The DRM waited until 10:15 a.m. to begin the hearing.  When the hearing was commenced, the DRM marked as Exhibit 1 a proof of service that was mailed to FATHER on December 12, 2012.  The proof of service notified FATHER that his hearing would take place on January 31, 2013.  Like the notice that was mailed in Murphy v. Murphy, supra, the notice sent to FATHER included the designation “service type M” which connoted that the notice was sent by regular mail to FATHER’s last known address.

At no time since the January 31, 2013 hearing has FATHER presented evidence other than his own testimony that he failed to receive notice.  Because FATHER has not presented evidence sufficient to rebut the presumption created by the Pennsylvania mailbox rule, the notice sent to him will be deemed by this Court to have been received by FATHER.  Accordingly, the result of the DRM’s hearing will be affirmed and FATHER’s exception based upon lack of notice will be denied.

With the above being said, we have searched through the file for any evidence that FATHER has failed to cooperate or appear at any other support proceeding.  We have found none.  The failure by FATHER to attend the January 31, 2013 hearing appears to be an isolated aberration.  Because of this, we will afford FATHER with an immediate right to a review of the support order we will enter today based upon the DRM’s recommendation.  Our Court Order will direct the Lebanon County Domestic Relations Office to schedule a review hearing before a DRM.  At the hearing to be scheduled pursuant to our Order, the DRM will be at liberty to enter a recommendation retroactive to the date of this Opinion.

A Court Order to effectuate the above decision will be entered this date.



[1] We receive this particular claim with some degree of skepticism.  While we understand that no human- dependent organization is perfect, history and experience has taught us that when people report a change of address, it is recorded by personnel at the Domestic Relations Office.

[2] A notice to appear signed by a clerical worker who places the notice into the mail would be sufficient.

[3] For example, corroborating evidence from a co-resident that envelopes were misdelivered or discarded could, under certain circumstances, serve to rebut the mailbox rule.

 

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