J-A25021-14

2014 PA Super 262

TANYA HELENA TECCE IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOHN MICHAEL HALLY

Appellee No. 495 EDA 2014

Appeal from the Order Entered January 14, 2014

In the Court of Common Pleas of Delaware County

Civil Division at No.: 2008-008805

BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

OPINION BY WECHT, J.: Filed: November 21, 2014

Tanya Tecce (“Wife”) appeals the January 14, 2014 order that granted 

in part and denied in part her petition to enforce the trial court’s equitable 

distribution order. The hearing on the petition was profoundly flawed. 

However, we are constrained to affirm.

The trial court offered the following summary of the factual and 

procedural history of this matter:

Wife filed a Complaint in Divorce on July 1, 2008, which 

contained, inter alia, Count I Request for a No Fault Divorce 

Under Section 3301(c) and/or (d) of the Divorce Code, Count II 

Request for Equitable Distribution of Marital Property Under 

Section 3502(a) of the Divorce Code, and Count III Request for 

Spousal Support and/or Alimony Pendite [sic] Lite and Alimony 

Under Section 3701 of the Divorce Code.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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On January 26, 2009, [John Halley (“Husband”)] filed his 

Affidavit of Consent under Section 3301(c) of the Pennsylvania 

Divorce Code, and on February 11, 2009, Wife did the same. 

The parties went before Divorce Hearing Officer Donald W. 

Lehrkinder, Sr., Esq. on January 19, 2010. Hearing Officer 

Lehrkinder filed his Report and Recommendations on November 

9, 2010. Judge Durham signed an Amended Order to the Report 

and Recommendations on February 23, 2011 and it was filed on 

February 24, 2011.

On December 7, 2012, Wife filed a Praecipe to Transmit the 

Record, seeking that the Court enter a divorce decree. On 

January 13, 2013, [the trial court] signed a Decree and Order 

divorcing the parties, and it was filed on January 25, 2013.

On November 8, 2013, Wife filed a Petition for Enforcement, 

requesting the Court to direct Husband to sign a Deed 

transferring the marital residence in Wife’s name only, so that 

she may sell said residence, to enforce the alimony provision of 

the parties’ Equitable Distribution Order, to distribute child 

support arrears to Wife, and for counsel fees. 

The Court held a hearing on January 9, 2014 on Wife’s Petition. 

The hearing consisted of legal argument by counsel for both 

parties, and also of statements from both parties. Neither party 

received an oath before placing statements on the record. 

Husband’s counsel did not dispute that the parties’ Equitable 

Distribution Order required Husband to Pay Wife alimony in the 

amount of $200 per month for a term of thirty months. Further, 

Husband’s counsel did not dispute that Husband never made 

said alimony payments. However, Husband’s counsel [argued 

that] the alimony provision of the parties’ Equitable Distribution 

Order is no longer enforceable against Husband.

Trial Court Opinion (“T.C.O.”), 5/5/2014, at 3-4 (footnote and citations to 

notes of testimony omitted).

On January 14, 2014, the trial court entered an order that: required 

Husband to cooperate with the sale of the marital residence, but did not 

order him to sign over title to Wife; found that the parties entered into a 

verbal agreement that Husband would keep Wife on his health insurance in 
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exchange for Wife foregoing alimony payments; denied Wife relief with 

regard to child support arrears without prejudice to Wife seeking relief with 

the child support section of the court; and denied Wife’s request for 

attorney’s fees in connection with the enforcement petition. 

On February 10, 2014, Wife filed a notice of appeal. On February 12, 

2014, the trial court ordered Wife to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Wife timely 

complied. On May 5, 2014, the trial court filed its Pa.R.A.P. 1925(a) 

opinion.1

Wife raises four issues for review:

1. Did the Trial Court abuse its discretion in failing to conduct a 

full evidentiary hearing with sworn testimony and offers and 

admission of documentary and other evidence, thus depriving 

[Wife] of a full and fair hearing on her Petition for 

Enforcement of the terms of the parties’ divorce?

2. Did the Trial Court abuse its discretion in depriving [Wife] of 

the ability to meaningfully cross-examine or otherwise 

challenge [Husband’s] statements, when said statements 

were not received under oath, and no opportunity for crossexamination was offered?

3. Was the Trial Court’s finding of an “enforceable verbal 

agreement” supported by the evidence, where as there was 

no “evidence” to consider, and the Court based its findings on 

____________________________________________

1 Husband’s counsel sought to withdraw as counsel in a motion filed with 

this Court on June 23, 2014. Counsel’s motion was granted and Husband 

was given leave to file a pro se brief. However, Husband did not file a brief 

and did not appear at oral argument.
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nothing more than the unsworn statements of [Husband] and 

his counsel?

4. Did the Trial Court abuse its discretion where the substance of 

[Husband’s] unsworn statements was insufficient to support 

the Court’s findings that [Wife] had bargained away her right 

to post-divorce alimony in the total aggregate amount of 

$6,000.00?

Wife’s Brief at 5-6.2

All of Wife’s challenges relate to the method by which the trial court 

conducted the hearing. After reviewing the record, we agree that the 

hearing was deficient. 

Rule of Evidence 603 requires that witnesses be sworn before 

providing testimony:

Before testifying, a witness must give an oath or affirmation to 

testify truthfully. It must be in a form designed to impress that 

duty on the witness’s conscience.

Pa.R.E. 603. Here, a review of the record proves that neither Husband nor 

Wife was administered an oath prior to providing their statements. See

Notes of Testimony (“N.T.”), 1/9/2014, at 3-12. Moreover, the trial court 

acknowledged as much. T.C.O. at 4. “Without an administration of an oath 

to a witness, the taking of testimony is meaningless.” Commonwealth ex. 

____________________________________________

2 We note that Wife cited and appended an unpublished, nonprecedential memorandum opinion of this Court in her brief. Wife’s Brief at 

12-13, 14, 15. However, a non-precedential memorandum may not be 

cited. See 210 Pa. Code § 65.37 (“An unpublished memorandum decision 

shall not be relied upon or cited by a Court or a party in any other action or 

proceeding” with two exceptions that do not apply here.)
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rel. Freeman v. Superintendent of State Corr. Inst. at Camp Hill, 242 

A.2d 903, 908 (Pa. Super. 1968).3 Husband’s and Wife’s “testimony” was a 

nullity. The lack of an oath means that there was no testimony. There was 

no record evidence upon which the trial court could support its order. 

The error of failing to administer an oath was compounded by the fact 

that neither party was subject to cross-examination.

The right of a litigant to in-court presentation of evidence is 

essential to due process; in almost every setting where 

important decisions turn on questions of fact, due process 

requires an opportunity to confront and cross-examine adverse 

witnesses.

M.O. v. F.W., 42 A.3d 1068, 1072 (Pa. Super. 2012). In this case, the trial 

court conducted a haphazard proceeding in which the parties’ attorneys 

offered argument, peppered with interruptions by the judge and by the 

parties as they ventured thoughts or provided explanations. Neither 

Husband nor Wife had the opportunity to cross-examine the other party. 

While “[t]he scope of cross-examination is within the sound discretion of the 

trial judge,” Cacurak v. St. Francis Med. Ctr., 823 A.2d 159, 167 (Pa. 

Super. 2003), the trial court may not dispense with cross-examination 

altogether.

____________________________________________

3 We recognize that Freeman involves the rights of juveniles in 

delinquency proceedings, a fact of which the learned concurrence reminds 

us. Conc. Op. at 4-5. However, we cite Freeman for the general 

proposition that testimony must be sworn in compliance with Pa.R.E. 603 

and 42 Pa.C.S.A. § 5901.
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The trial court here purported to make credibility determinations based 

upon this “testimony.” T.C.O. at 7-9. It is axiomatic that credibility 

determinations must be based upon actual testimony. Because there was no 

oath, no competent testimony was presented to the court upon which any 

credibility determination could be made. Credibility and reliability of 

witnesses are determined “in a particular manner: by testing in the crucible 

of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61 (2004). 

Because neither Husband nor Wife had any opportunity to vindicate this 

essential right, the trial court had no basis whatsoever upon which it could 

make credibility determinations. When we speak of a judicial proceeding, 

we speak of a hearing, not a conversation.4

However, neither party nor counsel objected to the procedure used by 

the trial court during this proceeding.5 We are not free to ignore this 

____________________________________________

4 At some length, the concurrence labors to set up – and then proceeds 

to knock down – a straw man, expounding that the taking of evidence is not 

required in all judicial proceedings. See Conc. Op. at 6-7. Without a doubt, 

that is true. However, when a trial court purports to make findings of fact 

and credibility determinations, as it did here, there must be an evidentiary 

basis upon which to do so.

5 As the legendary advocate Brendan Sullivan famously observed, 

lawyers are not potted plants. See Commonwealth v. Ramos, 936 A.2d 

1097, 1105 (Pa. Super. 2007) (“One is reminded of the quote from Attorney 

Brendan V. Sullivan in the 1987 Oliver North hearings, when, after he was 

criticized for making an objection, Sullivan responded, ‘I'm not a potted 

plant. I'm here as a lawyer. That's my job.’”). If and when a trial judge 

begins to proceed without a record, it is incumbent on counsel respectfully to 

demand such record. Lawyers and their clients are entitled to expect that 

trial judges will not take offense when counsel reminds the court of its 

(Footnote Continued Next Page)
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complete absence of objection. It is axiomatic that, to preserve an objection 

for appeal, the objection must be raised before the trial court. See Green 

v. Green, 69 A.3d 282, 288 (Pa. Super. 2013); Pa.R.A.P. 302(a).6 Parties 

may waive rights, even due process rights and other rights of constitutional 

magnitude. See Tyler v. King, 496 A.2d 16, 24 (Pa. Super. 1985). 

Pennsylvania’s appellate courts have held, without apparent exception, that 

the failure to object to unsworn testimony subjects a litigant to waiver. See 

City of Philadelphia v. White, 727 A.2d 627, 629 (Pa. Commw. 1999); 

Morra v. Com., Dep’t of Transp., Bureau of Driver Licensing, 667 A.2d 

468, 469 (Pa. Commw. 1995); Godding v. Swanson, 98 A.2d 210, 213 

(Pa. Super. 1953).7

(Footnote Continued) _______________________

obligation to ensure that hearings proceed on a record. From time to time, 

family law practitioners (and judges) are heard to complain that they are not 

taken seriously, or are treated as second class citizens in our judicial 

system. The best antidote to such discrimination is for family law attorneys 

and judges to practice, and to demand, formality and respect for the rules of 

evidence and procedure. See generally, David N. Wecht, The Discipline of 

Rules, 29 Pennsylvania Family Lawyer, 138 (2007).

6 The concurrence helpfully provides a litany of citations to additional 

precedents applying our waiver doctrine. See Conc. Op. at 1-3.

7

Jurisdictions across the United States have held similarly; indeed, the 

cases are legion. See United States v. Odom, 736 F.2d 104, 114 (4th Cir. 

1984); United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981) (“It has 

long been the general rule that even a failure to swear a witness may be 

waived.”); Williams v. Harris, 80 So. 3d 273, 278-79 (Ala. Civ. App. 

2011); Harbit v. Harbit, 3 So. 3d 156, 160 (Miss. Ct. App. 2009); Brown 

v. Ristich, 325 N.E.2d 533, 538 (N.Y. 1975); State v. Norman, 738 N.E.2d 

403, 412 (Ohio Ct. App. 1999); Goforth v. State, 921 P.2d 1291, 1293 

(Okla. Crim. App. 1996); Beck v. State, 619 S.W.2d 205, 214 (Tex. Crim. 

(Footnote Continued Next Page)
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A proceeding that is so fundamentally flawed as the one that occurred 

here offends fundamental fairness and demands correction. The trial court 

made factual findings and credibility determinations without taking 

testimony, without receiving evidence and without allowing crossexamination. This was plain error. Moreover, neither party has invoked or 

even mentioned waiver on this appeal. And yet, we are bound by our 

precedents to invoke waiver sua sponte in this case. Despite the 

fundamental flaws in the trial court’s “hearing,” our law is clear. We may 

not afford relief when no objection has been made. We are constrained to 

affirm the trial court’s order.

Order affirmed.

Judge Platt joins the opinion.

Judge Donohue files a concurring opinion.

(Footnote Continued) _______________________

App. 1986); Hanson-Metayer v. Hanson-Metayer, 70 A.3d 1036, 1047 

(Vt. 2013). We acknowledge as an outlier an older common pleas court case 

that holds to the contrary: DeWitt v. Oppel, 14 Pa. D & C.2d 23 (C.P. 

Cumberland Cty. 1958) (stating that the reasons why an oath is required 

“are so basic and fundamental to the administration of justice that we have 

no difficulty in deciding that the requirement of swearing witnesses is not 

one that may be waived by a party.”). Our decisional law is clear that such 

leniency will no longer be brooked, if ever it was.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2014