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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.L.L., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
H.L.R. AND D.L.R.,
Appellees No. 2141 MDA 2013
Appeal from the Order entered November 1, 2013,
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 13-5543
BEFORE: LAZARUS, WECHT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2014
appeals from the Order entered on
November 1, 2013, dismissing her Complaint for custody of her grandchild
1
the Child
.S.A. §§ 5321 to 5340, and improper venue
1
In the Custody Complaint, Maternal Grandmother averred that the name
and birth date of Child were unknown to her. Custody Complaint, 4/22/13,
at ¶ 3.
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under Rule 1915.2 of the Pennsylvania Rules of Civil Procedure.2 We affirm.
The trial court set forth the procedural history of this appeal as
follows:
On April 22, 2013, [Maternal Grandmother] filed a Complaint for
custody of [Child. Mother and Father] are the biological parents
of [] Child. [Mother and Father] filed Preliminary Objections to
Maternal Grandmother does not have standing to seek custodial
rights of [] Child and that venue is improper in Berks County.
On October 23, 2013[,] [the trial court] heard argument on
November 1, 2013[,] issued an Order dismissing [Maternal
Custody Complaint due to lack of standing under
23 Pa.C.S.[A. §] 5325[,] and improper venue under Rule 1915.2
of the Pennsylvania Rules of Civil Procedure.
Trial Court Opinion, 12/30/13, at 1 (unnumbered).
Maternal Grandmother timely filed a Notice of Appeal. On December
3, 2013, the trial court issued an Order directing Maternal Grandmother to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b) within twenty-one days. On December 16,
2
In her Custody Complaint, Maternal Grandmother seeks visitation with
Child. See Custody Complaint, 4/22/13, at ¶ 6. Under the Act, a request
See 23
for visitation as a request for custody.
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2013, Maternal Grandmother filed a Concise Statement.3
On appeal, Maternal Grandmother raises the following issue for our
review:
Whether the [trial] court
improperly dismissed [Maternal
seeking [physical custody] of
[Child] based on the determination she did not have standing
under [] 23 Pa.C.S.[A. §] 5325[,] when the court already
granted standing and entered a final [O]rder with respect to an
older sibling of [C]hild []?
3
Pursuant to Pa.R.A.P. 1925(a)(2)(i), Maternal Grandmother was required
to file her Concise Statement at the same time that she filed her Notice of
Appeal. However, her failure to file her Concise Statement simultaneously
with her Notice of Appeal is not a fatal defect. See In re K.T.E.L., 983 A.2d
simultaneously file a Rule 1925(b) concise statement did not result in waiver
of all issues for appeal where the appellant later filed the statement, and
there was no allegation of prejudice from the late filing). Here, Maternal
Grandmother timely complied with the trial cou
a concise statement. Because we discern no prejudice to Mother and Father
from Maternal Grandm -filed Concise Statement, we will not find
waiver of the issues properly raised in her Concise Statement.
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4
Maternal Gra
preliminary objections are as follows:
Preliminary objections, the end result of which would be
dismissal of a cause of action, should be sustained only in cases
that are clear and free from doubt. The test on preliminary
objections is whether it is clear and free from doubt from all of
the facts pleaded that the pleader will be unable to prove facts
legally sufficient to establish his right to relief. To determine
whether preliminary objections have been properly sustained,
this [C]ourt must consider as true all of the well-pleaded
reasonable inferences that may be drawn from those facts.
Chester County C , 636 A.2d
1157, 1158 (Pa. Super. 1994) (internal citations omitted).
of fact are raised, the court shall dispose of the preliminary objections as a
R.M. v. J.S., 20 A.3d
4
In her Brief on appeal, Maternal Grandmother also raises the issue of
venue. See When an appellant is
directed to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), ncise statement must properly
specify the error(s) to be addressed on appeal. See In re A.B., 63 A.3d
345, 350 (Pa. Super. 2013); see also Pa.R.A.P. 1925(b)(4)(ii) (requiring
the appellant intends to challenge with sufficient detail to identify all
Pa.R.A.P. 1925(b)(4)(vii) (stating that
the provisions of this [Rule] ar
a concise statement is too vague. See In re A.B., 63 A.3d at 350. Here,
Maternal Grandmother failed to sufficiently raise the issue of venue in her
Concise Statement. Therefore, it is waived. We additionally note that
Maternal Grandmother did not raise the issue of venue in her Statement of
Questions Involved, as required by Pa.R.A.P. 2116(a). However, even if this
issue had not been waived, we would have determined that it lacks merit.
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496, 508-09 (Pa. Super. 2011).
decision regarding preliminary objections only where there has been an error
In re B.L.J., 938 A.2d 1068, 1071 (Pa.
Super. 2007).
Further, threshold issues of standing are questions of law; thus, our
standard of review is de novo and our scope of review is plenary. See
Johnson v. Am. Std., 8 A.3d 318, 326 (Pa. 2010). In matters arising
under the Act, standing to seek partial, shared or supervised physical
custody of a child is conferred on a grandparent in any of the following
situations:
(1) where the parent of the child is deceased, a
parent or grandparent of the deceased parent may
file an action under this section;
(2) where the parents of the child have been
separated for a period of at least six months or
have commenced and continued a proceeding to
dissolve their marriage; or
(3) when the child has, for a period of at least 12
consecutive months, resided with the grandparent
or great-grandparent, excluding brief temporary
absences of the child from the home, and is
removed from the home by the parents, an action
must be filed within six months after the removal
of the child from the home.
23 Pa.C.S.A. § 5325.
Maternal Grandmother concedes that Mother and Father are alive, and
that they have not been living separately. Maternal Grandmothe
7. Maternal Grandmother does not contend that Child has been living with
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her for a period of at least 12 consecutive months. Id. Thus, Maternal
Grandmother has not asserted any basis for standing under section 5325.
Nevertheless, Maternal Grandmother points out that the trial court
previously determined, in a separate action, that she had standing to seek
y rendering
inconsistent rulings regarding her standing, the trial court has created a
situation where Child and Older Sibling are treated differently as to Maternal
Grandmother. Id
ruling will encourage Mother and Father to assert that it is no longer in Older
5
Id.
The trial court found the following with regard to Maternal
The facts of this case are distinctive from the action where
[Maternal] Grandmother had standing concerning [Older
Sibling]. [Maternal] Grandmother had standing to pursue
custody with [Older Sibling] because[,] for the initial year and a
s] life, Mother and [Older Sibling] lived with
Maternal Grandmother. The instant case is different. Maternal
Grandmother has never met [] Child. Maternal Grandmother
5
Maternal Grandmother relies on Grom v. Burgoon, 672 A.2d 823 (Pa.
Super. 1996), in support of her argument that the trial court erred by
determining that she lacks standing to seek custody of Child. Maternal
iance on
Grom
Visitation Act, 23 Pa.C.S.A. § 5313 (repealed, effective January 24, 2011),
and is legally and factually distinguishable from this case.
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does not know the name of [] Child. It is clear to this [c]ourt
that the [Mother and Father] intentionally avoided any contact or
interaction between Maternal Grandmother and [] Child because
of the custody issues they are confronted with concerning
[O]lder [S]ibling and Maternal Grandmother. This [c]ourt has
not found any of the situations to exist delineated in 23
Pa.C.S.[A. §] 5325[,] and properly dismissed [Maternal
Trial Court Opinion, 12/30/13, at 2-3 (unnumbered). As Maternal
Grandmother has failed to satisfy any of the requirements of section 5325,
standing to seek custody of Child.6
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
6
Maternal Grandmother also relies on L.A.L. v. V.D., 72 A.3d 690 (Pa.
Super. 2013), in support of her argument that the trial court was required to
consider the factors set forth in section 5328(c)(1)(i-iii). Maternal
trial court only when a grandparent has standing. See L.A.L. v. V.D., 72
A.3d at 695. Because Maternal Grandmother lacked standing to seek
custody of Child, the trial court did not err by failing to consider the factors
set forth in section 5328(c)(1)(i-iii).
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