J-S71035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COLIN JONES IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JACQUILLINE JONES

Appellant No. 800 WDA 2015

Appeal from the Order March 24, 2015

In the Court of Common Pleas of Potter County

Civil Division at No(s): 2008-6051

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 30, 2015

Jacquilline Jones (“Wife”) appeals the order entered on March 24, 

2015, in the Potter County Court of Common Pleas, denying her motion to 

set aside her divorce decree from Colin Jones (“Husband”), entered on 

March 5, 2009. On appeal, Wife argues the trial court erred in failing to find 

the divorce was fraudulently obtained, because Husband, acting as her agent 

under a power of attorney, signed her name to various documents 

purportedly without her knowledge. In response, Husband contends the 

appeal is frivolous and vexatious, and requests counsel fees pursuant to 

Pa.R.A.P. 2744. For the reasons below, we affirm the order of the trial court 

and deny Husband’s request for counsel fees.

The relevant facts and procedural history underlying this appeal are 

aptly summarized by the trial court as follows:
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1. [The parties were married in October of 1990, and lived in 

Brooklyn, New York until 2005. While they were living in New 

York, Wife executed a Power of Attorney in favor of Husband. 

In November of 2005, Wife moved to North Carolina to set up 

a residency for the parties’ children, who followed her in July 

of 2006, while Husband remained in New York for work.] On 

November 21, 2008 [Husband] filed a Complaint in Divorce in 

Potter County, Pennsylvania. [Husband’s] Change of Address 

tax form dated June 22, 2009 indicates that he lived in 

Pennsylvania for some time prior to returning to New York. 

[He testified that he moved to Pennsylvania in late April 2008, 

and remained there until January of 2009.]

2. On February 27, 2009, an Acceptance of Service and [Wife’s] 

Waiver of Notice of Intention to Request Entry of a Divorce 

Decree were filed. Such documents appeared to have been 

signed by [Wife]. [Husband] testified at the hearing that he 

had actually signed the document[s] as he believed it was 

permissible for him to do so as [Wife’s] agent under a power 

of attorney. [Husband] testified further that [Wife] gave him 

permission to execute the document for her.

3. On March 5, 2009, following the filing of a Praecipe to 

Transmit the Record, the parties[’] Divorce Decree was 

entered.

4. On December 22, 2014, over five years and 9 months after 

the Divorce Decree was entered, [Wife] filed a Complaint to 

Set Aside the Divorce on Jurisdictional Issues.1

5. On February 6, 2015, prior to argument, [Husband] filed 

Preliminary Objections to [Wife’s] Complaint based on 

untimeliness under 23 Pa.C.S. § 3332. Subsequently, on the 

same day, argument was held on [Husband’s] Preliminary 

Objections and [Wife’s] Complaint.

6. [Wife] claims that she had no knowledge of the Divorce 

Decree having been issued until November of 2012 when 

mutual friends advised her of the Divorce.

__________

1 While [Wife] designated her filing as a Complaint[,] the Court 

... treat[ed] the filing as a Motion to Vacate as it requests that 

the Court vacate the parties[’] Divorce Decree. As such, 23 

Pa.C.S. § 3332 is applicable to [Wife’s] Complaint.
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Trial Court Opinion, 3/24/2015, at 1-2 (record citations omitted). 

On March 24, 2015, the trial court entered an order denying Wife’s 

motion to vacate the divorce decree. This timely appeal follows.1

On appeal, Wife argues the trial court erred in failing to vacate her 

divorce decree because it was fraudulently obtained. She contends Husband 

had no authority to sign her name to any divorce filings, particularly the 

Waiver of Notice of Entry of a Decree, because the power of attorney was 

invalid “the moment the divorce [complaint] was filed.” Wife’s Brief at 7. 

See 20 Pa.C.S. § 5605(c). Further, Wife notes that, even if, as Husband 

alleges, she consented to his use of the Power of Attorney to sign her name, 

neither the Power of Attorney Act,2 nor the Domestic Relations Code,3allow 

“for an oral consent to the violation of the Power of Attorney[.]” Wife’s Brief 

at 8. Wife also argues the affidavits in this case, which were signed by 

Husband, violated Potter County Local Rule of Court 20, which requires all 

affidavits be notarized. Id. at 9. Lastly, although Wife recognizes there is a 

five-year limitations period to challenge a divorce decree that was 

____________________________________________

1 On April 23, 2015, the trial court ordered Wife to file a concise statement 

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

complied with the court’s directive, and filed a concise statement on May 12, 

2015.

2 20 Pa.C.S. §§ 5601-5612.

3 23 Pa.C.S. § 101, et seq.
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fraudulently obtained, she asserts she did not know the parties’ “divorce was 

filed” until 2012. Wife’s Brief at 5. She claims: 

She was divorced; all her issues were litigated, and she had no 

remedies because all of this was done within five years when she 

found out, but five years after the decree was entered.

Id. at 9. Therefore, Wife maintains the trial court erred when it declined to 

vacate the divorce decree.

When reviewing a trial court’s order denying a motion to vacate a 

divorce decree, 

[o]ur standard of review ... requires us to determine whether an 

abuse of discretion has been committed. A motion requesting 

that a divorce decree be opened or vacated lies when the motion 

alleges the decree suffers from a fatal defect apparent upon the 

face of the record, was procured by either intrinsic or extrinsic 

fraud, should be voided in light of newly discovered evidence, or 

was entered by a court without subject matter jurisdiction. 

Danz v. Danz, 947 A.2d 750, 752-753 (Pa. Super. 2008) (citations 

omitted). 

Here, the trial court concluded it had no authority to vacate the 

divorce decree because Wife’s petition was not “timely filed.” Trial Court 

Opinion, 3/24/2015, at 3. We agree.

A party who wishes to challenge the entry of a divorce decree must do 

so within the time period set forth in the Domestic Relations Code, 23 

Pa.C.S. § 101 et seq. Hassick v. Hassick, 695 A.2d 851, 852 (Pa. Super. 

1997). Section 3322 provides: 

A motion to open a decree of divorce or annulment may be made 

only within the period limited by 42 Pa.C.S. § 5505 (relating to 

modification of orders) and not thereafter. The motion may lie 
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where it is alleged that the decree was procured by intrinsic 

fraud or that there is new evidence relating to the cause of 

action which will sustain the attack upon its validity. A motion to 

vacate a decree or strike a judgment alleged to be void because 

of extrinsic fraud, lack of jurisdiction over the subject matter or 

a fatal defect apparent upon the face of the record must be 

made within five years after entry of the final decree. Intrinsic 

fraud relates to a matter adjudicated by the judgment, including 

perjury and false testimony, whereas extrinsic fraud relates to 

matters collateral to the judgment which have the consequence 

of precluding a fair hearing or presentation of one side of the 

case.

23 Pa.C.S. § 3332. Accordingly, 

[w]here intrinsic fraud or new evidence attacking the validity of 

a decree is alleged, a motion to open must be filed within 30 

days after the entry of the decree; and, where extrinsic fraud is 

asserted as a basis to vacate, action must be initiated within 5 

years of the entry of the final decree. 

Hassick, supra, 695 A.2d at 852. 

In the present case, Wife sought to vacate the divorce decree more 

than five years after the decree was entered. Therefore, regardless of the 

merits of her argument,4 her challenge to the divorce decree is now timebarred. 

____________________________________________

4

Pursuant to the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 101 et 

seq., a power of attorney designated to a spouse is revoked when either 

party files an action in divorce. 20 Pa.C.S. § 5605(c). Therefore, it would 

appear that Husband had no authority under the power of attorney to sign 

Wife’s name to the Waiver of Notice form. Husband contends, however, that 

because the power of attorney was created in New York, the law of that 

state applies, and pursuant to New York’s General Obligations Law, “[a]n 

agent’s authority terminates when ... the agent’s marriage to the principal is 

terminated by divorce[.]” N.Y. Gen. Oblig. Law § 5-1511(2)(c). 

Accordingly, he asserts that under New York law, the power of attorney was 

(Footnote Continued Next Page)
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Moreover, as the trial court explained in its opinion:

The statute offers no exception which allows a party to challenge 

their divorce decree more than five years after it was entered. 

The Court is unaware of any case law which indicates that the 

“know or should have known” standard argued by [Wife] or any 

other exception applies to the time bar of section 3332. The 

Court is sympathetic to [Wife’s] argument and claims that she 

never authorized the execution of the divorce documents. 

However, lacking authority to vacate the Decree, the Court can 

only conclude that [Wife’s] Complaint to Set Aside the Divorce 

on Jurisdictional Issues was not timely filed and must be denied 

pursuant to section 3332.

Trial Court Opinion, 3/24/2015, at 3. 

Wife also asserts the fact that she had no notice of the entry of the 

divorce decree until 2012 tolls the limitations period. See Wife’s Brief at 9 

(stating she filed the motion to set aside the decree “within five years of 

when she first found out she was divorced”). While she does not explicitly 

identify it in her argument, Wife implies that the application of the 

“discovery rule” is appropriate under these circumstance. The discovery rule 

permits a party, in limited circumstances, to circumvent certain statutory 

time periods.5 However, Wife makes no specific reference to the discovery 

(Footnote Continued) _______________________

valid until the divorce decree was entered. Because we find Wife’s challenge 

is time-barred, we need not determine which state’s law controls.

 

5 See Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005) (“As the discovery 

rule has developed, the salient point giving rise to its application is the 

inability of the injured, despite the exercise of reasonable diligence, to know 

that he is injured and by what cause.”).
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rule, provides no statutory or case law applying discovery rule principles to 

the entry of a divorce decree, and neglects to present any argument that the 

discovery rule should apply to the facts herein. Therefore, any claim that 

the statute of limitations period was tolled is now waived. See ChapmanRolle v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006) (“It is well settled that 

a failure to argue and to cite any authority supporting any argument 

constitutes a waiver of issues on appeal.”) (quotation omitted).

Furthermore, we note Wife’s claim seems to invoke the doctrine of 

fraudulent concealment set forth at 42 Pa.C.S. § 5532(c). “The doctrine is 

based on a theory of estoppel, and provides that the defendant may not

invoke the statute of limitations, if through fraud or concealment, he causes 

the plaintiff to relax his vigilance or deviate from his right of inquiry into the 

facts.” See Fine, supra, 870 A.2d at 860. However, Section 5532(c), by 

its very terms, applies only in “a civil action or proceeding against the 

trustee of an express or implied trust.” Id. Accordingly, it is not applicable 

here.6 

In addition to Wife’s issues on appeal, Husband requests this Court 

award him counsel fees pursuant to Pa.R.A.P. 2744. 

____________________________________________

6 We also note that it appears from the testimony Wife had suspicion 

Husband may have filed for divorce as early as 2009. N.T., 2/6/2015, at 23-

24 (Wife describing phone call she received from Husband in which he told 

her he had to prove to “Immigration to get his citizenship ... that he’s paying 

child support[;]” Wife testified she “emphatically asked him if [they] were 

divorced... [but h]e said no.”).
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Rule 2744 provides, in relevant part:

In addition to other costs allowable by general rule or Act of 

Assembly, an appellate court may award as further costs 

damages as may be just, including

(1) a reasonable counsel fee ... 

if it determines that an appeal is frivolous or taken solely for 

delay or that the conduct of the participant against whom costs 

are to be imposed is dilatory, obdurate or vexatious. ...

Pa.R.A.P. 2744. 

This Court has explained that an appeal is frivolous “where it lacks any 

basis in law or fact; simply because an appeal lacks merit does not make it 

frivolous.” Geiger v. Rouse, 715 A.2d 454, 458 (Pa. Super. 1998) (citation 

omitted). Further, although the term “vexatious” is not defined in the 

statute, this Court has previously defined the term, albeit in another context, 

“a legal strategy ‘without sufficient ground in either law or in fact and ... 

serv[ing] the sole purpose of causing annoyance.’” Pietrini Corp. v. Agate 

Const. Co., 901 A.2d 1050, 1053 (Pa. Super. 2006) (defining “vexatious” 

conduct with regard to counsel fees under the Prompt Pay Act, 62 Pa.C.S. § 

3935).

We decline to award counsel fees to Husband. His decision to file for 

divorce in a remote county in Pennsylvania, a state he lived in for only eight 

months, using his status as his Wife’s power of attorney to sign her name to 

all relevant documents, is, at the very least, suspect. Nevertheless, as 

discussed above, Wife’s challenge to the divorce decree is untimely. 
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Although Wife’s issue on appeal is meritless, we do not find it lacks any basis 

in law or fact. 

Order affirmed. Request for imposition of counsel fees denied. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2015