McGuire v. Ojeda (memorandum)

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J-S76038-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JENNIE McGUIRE, Appellee v. ALBERTO OJEDA, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1625 EDA 2012 Appeal from the Order Entered May 11, 2012, In the Court of Common Pleas of Montgomery County, Civil Division, at No. 2011-24643. BEFORE: FORD ELLIOTT, P.J.E., BENDER and SHOGAN, JJ. MEMORANDUM BY SHOGAN, J.: Filed: February 21, 2013 Appellant, Alberto Ojeda, appeals pro se from the order entered on May 11, 2012 that made final a prior order denying his motion for a continuance pursuant to Pa.R.Civ.P. 216.1 We affirm. The record August 19, 2011. reflects that Appellant filed support exceptions on In an order dated September 21, 2011, the trial court scheduled a de novo hearing for October 24, 2011. For reasons that are not clear from the record, the hearing de novo was continued and rescheduled 1 While this court is willing to liberally construe materials filed by a pro se litigant, an appellant is not entitled to any particular advantage because he or she lacks legal training. Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006). Any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing. Id. (citation omitted). J-S76038-12 for May 11, 2012. Order, 2/3/12. Appellant, who lives in Miami, Florida, filed a motion on April 19, 2012, requesting a hearing via telephone. The trial court apparently denied this motion,2 and on May 3, 2012, Appellant filed a motion requesting reconsideration of the motion for a continuance. The trial court denied Appellant s motion for reconsideration in an order dated May 4, 2012. On May 11, 2012, the day of the scheduled de novo hearing on Appellant s exceptions, Appellee, Jennie McGuire, accompanied by counsel, appeared before the trial court, but Appellant did not. 5/11/12, at 2. N.T., The trial court waited 15 minutes, but Appellant failed to appear. Thereafter, the trial court entered an order dismissing Appellant s exceptions. Order, 5/11/12. Appellant filed the instant appeal, and in an order filed on June 11, 2012, the trial court instructed Appellant to file a concise statement of errors complained Pa.R.A.P. 1925(b) within 21 days. of on appeal pursuant to Appellant filed his Pa.R.A.P. 1925(b) statement on June 29, 2012. Appellant s Pa.R.A.P. 1925(b) statement reads as follows: On the basis that the Pennsylvania Rules of Civil Procedure where not adhered to by the lower court of common pleas on the Exceptions case heard by said lower court and dismissed on May 11th, 2012 by the Honorable Patricia E. Coonahan. 2 There is no order denying the motion for a continuance in the certified record. However, because the trial court entered an order on May 4, 2012 that is in the record that denied reconsideration of the missing order, we will presume it exists. -2- J-S76038-12 Pa.R.Civ.P.216 provides that (1) illness of counsel of record, a material witness, or a party are grounds for a continuance. Defendant provided in good faith various Motions for Continuance and Re-consideration due to illness including supporting exhibits as per Pa.R.Civ.P. 216 within which ALL where consequently denied by said lower court. Even though Defendant, Alberto Ojeda adhered to the rule and expediently provided ample notices, attending physician s affidavit detailing illness and strict instructions impeding travel, multiple schedules of numerous testing and procedures, follow-up examinations and appointments with specialists and blood tests to be conducted in which all motions for continuances and motions for reconsideration where denied. Defendant, Alberto Ojeda respectfully submitted multiple motions requesting continuances and/or telephone hearings in order to facilitate the scheduled Exception hearing. Due to Defendant, Alberto Ojeda residing in Miami, Florida clearly over 1200 miles outside the venue of Montgomery County and under strict orders not to travel and to remain under constant observation until all scheduled testing could be completed and a determination could be made by the various attending Hepatologist, Liver Specialists, Gastroenterologist and attending physicians. Defendant, Alberto Ojeda attempted through its many diligent efforts to provide the court with all and any substantive proof of illness and in-availability at the time which were subsequently denied by the court impeding all access to due process by said court. Appellant s Pa.R.A.P. 1925(b) statement (verbatim). It is apparent from the Pa.R.A.P. 1925(b) statement and Appellant s brief that he is not appealing the May 11, 2012 dismissal of his exceptions. Rather, Appellant is challenging the denial of his motion for a continuance. Because an order denying a motion for a continuance does not dispose of all -3- J-S76038-12 claims and all parties, it is not a final order pursuant to Pa.R.A.P. 341. However, the May 11, 2012 order dismissing Appellant s exceptions made final the prior child support order, and thus, it made the prior order denying the continuance appealable. See Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008) (stating that once an appeal is filed from a final order, all prior interlocutory orders become reviewable. ), appeal denied, 605 Pa. 688, 989 A.2d 918 (2009). The standard of review of an order denying a motion for a continuance is for an abuse of discretion. Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001). An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the results [sic] of partiality, prejudice, bias or ill-will. Id. (citation omitted). Upon review of the record, the briefs of the parties, and the applicable legal authority, we discern no abuse of discretion and conclude that the trial court opinion accurately addresses and disposes of Appellant s issues. Accordingly, we affirm the trial court s order and we do so on the basis of the trial court s August 13, 2012 opinion. Order affirmed. -4-

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