[J-90-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
K.C. AND V.C. : No. 65 MAP 2015
:
: Appeal from the Order of the Superior
v. : Court dated April 10, 2015, at No. 499
: EDA 2015, quashing the Order of the
: Lehigh County Court of Common Pleas,
L.A. : Civil Division, dated January 2, 2015 at
: No. 2013-FC-0708
:
APPEAL OF: D.M. AND L.N. : SUBMITTED: October 21, 2015
OPINION
MADAME JUSTICE TODD DECIDED: December 21, 2015
In this appeal by allowance, we are asked to determine whether an order denying
a petition to intervene in a custody action is appealable as a collateral order as of right
pursuant to Pa.R.A.P. 313.1 For the reasons that follow, we hold that such an order is,
in fact, a collateral order appealable under Rule 313, and, thus, we reverse the Superior
Court’s order quashing the appeal and remand to that court for consideration of the
issues raised therein.
This case arises out of an action for the custody of L.A. (“Child”). Child was born
on December 9, 2011, to L.A. (“Mother”) and Q.M. (“Father”). Several months later,
Northampton County Children and Youth Services (“CYS”) filed an emergency
1 This case comes before this Court as a children’s fast track appeal pursuant to
Supreme Court Internal Operating Procedure § 4.
application for protective custody over Child. The trial court adjudicated Child
dependent and granted CYS legal custody on February 9, 2012. CYS subsequently
removed Child from Mother’s home and placed her in the care of Appellant D.M.
(“Maternal Aunt”), and Appellant L.N., a friend with whom Maternal Aunt resided
(collectively “Appellants”). Child lived with Appellants from February 10, 2012 to
September 20, 2012, at which time the trial court granted Appellants and Father shared
legal and physical custody over Child. The trial court later vacated its adjudication of
dependency on April 4, 2013, awarded sole legal custody and primary physical custody
to Father, and awarded partial physical custody to Appellants every other weekend.
Throughout the entire period during which he exercised custody over Child, Father
resided with his mother and stepfather, Appellees V.C. and K.C. (“Paternal
Grandparents”).
On June 6, 2013, nearly two months after he had been awarded primary custody,
Father suddenly passed away. Paternal Grandparents began caring for Child, and, on
June 13, 2013, they filed a complaint for custody against Mother,2 seeking sole legal
and physical custody over Child so as to “preserve and maintain the status quo” and “so
as not to disrupt the [C]hild’s living arrangements.” Complaint for Custody, at 3. Mother
did not contest the matter; however, on June 25, 2013, Appellants filed a petition for
intervention, wherein they asserted that they stood in loco parentis to Child and sought
primary legal and physical custody. In response, Paternal Grandparents filed an
answer and new matter in which they alleged that Appellants lacked standing under 23
Pa.C.S. § 53243 to seek legal or physical custody over Child, claiming they were only
2 The trial court awarded Mother limited physical custodial rights in the form of
supervised visitation through Catholic Charities. See Trial Court Order, 4/4/13, at 1.
3 Specifically, 23 Pa.C.S. § 5324 sets forth the requirements for standing in custody
actions, and provides that only a parent of the child, a person who stands in loco
(continuedI)
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temporary foster parents and, therefore, that they could not stand in loco parentis. On
January 2, 2015, following a hearing, the trial court denied Appellants’ petition to
intervene, noting that “relationships which are based on foster care do not give rise to in
loco parentis status for purposes of custody.” Trial Court Order, 1/2/15, at 1 n.1.
Appellants appealed the order denying intervention to the Superior Court, which
directed them to show cause why the appeal should not be quashed in light of the fact
that the order did not appear to be final or appealable. In response, Appellants argued
that the trial court’s order was final and appealable under Pa.R.A.P. 341, and,
alternatively, that the order was a collateral order subject to an appeal as of right
pursuant to Rule 313. The Superior Court nevertheless quashed the appeal in a per
curiam order dated April 10, 2015, concluding the trial court’s order denying the petition
to intervene was “not a final order in the custody matter and thus not final or
appealable.”4 K.C. and V.C. v. L.A., 499 EDA 2015, 1 (Pa. Super. filed 4/10/15) (order)
(citing Pa.R.A.P. 341(b)(1) (“A final order is any order that: (1) disposes of all claims and
of all parties”); G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (holding order awarding
father temporary partial custody prior to custody hearing was not final and appealable
under Rule 341); Boise Cascade Corp. v. East Stroudsburg Savings Ass’n, 446 A.2d
614 (Pa. Super. 1982) (quashing appeal from order denying intervention in action in
assumpsit because order was not final)).
(Icontinued)
parentis to the child, or a grandparent who does not stand in loco parentis to the child
and meets several other enumerated conditions may file an action for legal or physical
custody of a child. 23 Pa.C.S. § 5324.
4The Superior Court did not address Appellants’ alternative argument pertaining to Rule
313.
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Thereafter, Appellants filed a petition for allowance of appeal with this Court,
raising the issues of whether their appeal from the trial court’s order denying their
petition to intervene was appealable as a final order under Rule 341 or, alternatively, as
a collateral order pursuant to Rule 313. We granted allowance of appeal, limited to the
following issue:
Whether an appeal from a trial court order denying a petition
to intervene in a custody action is appealable as a collateral
order pursuant to Pa.R.A.P. 313 because the order is
separable and collateral to the main cause of action, the
right involved is too important to be denied review, and the
question presented is such that if review is postponed until
final judgment in the case the claimed right will be
irreparably lost[.]
K.C. and V.C. v. L.A., 121 A.3d 432 (Pa. 2015) (order).
By way of background, prior to 1992, orders denying a party the right to intervene
in an action were appealable as of right under Rule 341 because they “have the
practical consequence of putting a litigant out of court,” and, thus, were viewed as final
with regard to that party. Pa.R.A.P. 341, Note. However, the 1992 amendment to Rule
341 abandoned this liberal “final aspect” approach to finality by generally limiting
appeals as of right to only those orders which “end[ed] the litigation as to all claims and
all parties.” Id. As a result, appeals from several types of orders which were formerly
permitted under Rule 341 were eliminated from the rule’s scope, including appeals from
orders denying a party’s right to intervene. The Official Note to Rule 341 specifically
identifies, inter alia, an order denying a party’s right to intervene as one such order
which is no longer appealable as a final order under the rule.
Nevertheless, although Rule 341 specifically precludes a party from appealing an
order denying intervention before the underlying action becomes final under Rule 341’s
present formulation, the Official Note to Rule 341 also states that such an order may be
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immediately appealable as a collateral order under Rule 313 if it meets the criteria set
forth in that rule. Otherwise known as the collateral order doctrine, Rule 313(b)
provides that an interlocutory order is collateral and, therefore, immediately appealable,
if it is: “[1] separable from and collateral to the main cause of action where [2] the right
involved is too important to be denied review and [3] the question presented is such that
if review is postponed until final judgment in the case, the claim will be irreparably lost.”
Pa.R.A.P. 313(b); see also Commonwealth v. Wright, 78 A.3d 1070, 1077 (Pa. 2013).
Before us, Appellants argue that the trial court’s order denying their petition to
intervene in the custody proceedings is a collateral order appealable as of right under
Rule 313, and, thus, that the Superior Court erred in quashing its appeal. With respect
to the first prong of the collateral order doctrine, Appellants contend the order denying
their petition to intervene is separable from the underlying custody action because it
concerns the issue of whether they have standing to intervene, a question they claim is
separate from the main issue in the custody proceeding regarding who should have
legal and physical custody over Child.
Appellants next maintain that their right to intervene in the custody action is too
important to be denied review because the issue of which parties may have standing in
such proceedings implicates the best interests and welfare of children, Appellants’ Brief
at 16 (citing G.B., 670 A.2d at 718 (highlighting the Commonwealth’s interest in children
and the fact that custody orders have a “significant, important and immediate impact
upon the welfare of children”)), which they note has been recognized by the legislature
as important enough to prompt it to enact statutes specifically devoted to defining
standing to file custody actions in 23 Pa.C.S. §§ 5324-5325.
Lastly, with respect to the final prong of the doctrine, Appellants assert that their
right to intervene will be irreparably lost because, pursuant to In re Barnes Found., 871
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A.2d 792 (Pa. 2005), a party must appeal from an order denying intervention within 30
days of the entry of the order or it will lose its right to appeal the order entirely.5
Appellants further note that the denial of intervention precludes them from appealing the
final custody order, as “one who is not a party to a proceeding is not permitted to appeal
from a final order.” Appellants’ Brief, at 17 (citing Barnes, 871 A.2d at 794 (“failure to
attain intervenor status forecloses a later appeal.”)).6 Appellants posit that, as a result,
the Superior Court’s quashal of their appeal has placed them in a “Catch-22,” with no
remedy at law by which to challenge the trial court’s interlocutory order denying
intervention or to challenge the final custody order, a result they deem “absurd.”
Appellants’ Brief, at 18-19.7
We now turn to our analysis of the issue before us. The question of whether an
order is appealable under Rule 313 is a question of law. Accordingly, our standard of
review is de novo and our scope of review is plenary. Commonwealth v. Williams, 86
A.3d 771, 781 (Pa. 2014). We construe the collateral order doctrine narrowly so as to
avoid “undue corrosion of the final order rule,” Melvin v. Doe, 836 A.2d 42, 47 (Pa.
2003), and to prevent delay resulting from “piecemeal review of trial court decisions.”
Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 427 (Pa. 2006).
5As we discuss below, Barnes contemplates that this appeal would be pursuant to
Rules 312 or 313.
6 Appellants also contend that, if they are forced to wait to appeal the denial of
intervention until after the custody action becomes final, and if they succeed on appeal,
all of the parties will then be forced to undergo a second custody hearing, which they
assert is “contrary to the goal of . . . promptly resolv[ing] custody disputes.” Appellants’
Brief at 17. However, as we discuss infra, and as Appellants otherwise appear to
recognize, such a result is not possible under Barnes because Barnes does not permit
an appeal from a denial of intervention after the underlying action becomes final.
7 Paternal Grandparents have elected not to file a brief in this matter.
[J-90-2015] - 6
As noted above, the collateral order doctrine permits an appeal as of right from a
non-final collateral order if the order satisfies the three requirements set forth in Rule
313(b). With regard to the first prong of the collateral order doctrine, an order is
separable from the main cause of action if it is “entirely distinct from the underlying
issue in the case” and if “it can be resolved without an analysis of the merits of the
underlying dispute.” Commonwealth v. Blystone, 119 A.3d 306, 312 (Pa. 2015) (internal
quotation marks omitted). Here, as Appellants have noted, the order denying their
petition for intervention concerns their standing to seek custody of Child under 23
Pa.C.S. § 5324, a necessary threshold issue which must be determined before
proceeding to the central question in the underlying custody action regarding who
should exercise custody over Child. See Pittsburgh Palisades Park, LLC v.
Commonwealth, 888 A.2d 655, 659 (Pa. 2005) (“Prior to judicial resolution of a dispute,
an individual must as a threshold matter show that he has standing to bring the
action.”). As the issue of whether Appellants are among the individuals who have
standing to seek custody under Section 5324 is a conceptually distinct legal question
which has no bearing on the central issue within the custody action — who is entitled to
physical and legal custody of Child in light of her best interests — we find that
Appellants have established that the trial court’s order is separable from the main cause
of action. See In re J.S., 980 A.2d 117, 121 (Pa. Super. 2009) (finding order denying
foster parents’ petition for intervention in a dependency action satisfied first prong of
collateral order doctrine because “the determination of . . . standing . . . is peripheral to
the substantive decisions affecting the child’s best interests, which is the polestar of all
dependency proceedings.”); Moyer v. Gresh, 904 A.2d 958, 961 (Pa. Super. 2006)
(treating dismissal of a party from a child custody action as distinct from the merits of
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the custody action). Thus, Appellants have satisfied the first prong of the collateral
order doctrine.
Next, with respect to the second prong of the doctrine, the importance prong, a
right is important if “the interests that would go unprotected without immediate appeal
are significant relative to the efficiency interests served by the final order rule.”
Williams, 86 A.3d at 782. Notably, the rights involved must implicate more than just the
individual parties in the matter, and, instead, must be “deeply rooted in public policy
going beyond the particular litigation at hand.” Blystone, 119 A.3d at 312 (internal
quotation marks omitted). In the instant case, it is undeniable that a decision regarding
Appellants’ claimed right to standing to intervene in the custody proceedings will have a
direct effect on Appellants’ ability to participate in the custody proceedings, and, thus,
on Child, as, if Appellants are, in fact, entitled to intervene in the custody action, they
could be awarded partial or full custody.
However, while Appellants’ claimed right to intervene in the custody action may,
at first blush, appear to implicate only the individual parties involved, this right has
important policy implications extending beyond this particular case, as the state has a
“longstanding interest in protecting the health and emotional welfare of children,” and
decisions regarding which parties have standing to participate in a child custody action
directly impact the children involved in such actions. Hiller v. Fausey, 904 A.2d 875,
886 (Pa. 2006). More specifically, in the context of child custody proceedings, the state
has a “paramount concern” in “the best interest and permanent welfare of the child,” and
has deemed all other considerations “subordinate to the child’s physical, intellectual,
moral and spiritual well-being.” In re Davis, 465 A.2d 614, 618 (Pa. 1983); see also
G.B., 670 A.2d at 718 (“Child custody orders are treated differently because they have
significant, important and immediate impact upon the welfare of children.”).
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Accordingly, Pennsylvania has a strong policy interest in ensuring that courts
award custody to those individuals who are most equipped to serve the best interests
and permanent welfare of the child, an aim only achievable if all parties who have a type
of parental relationship with a child, i.e., have standing under 23 Pa.C.S. § 5324, are
permitted to participate in a child custody action. Thus, we find that the state’s
paramount interest in the welfare of children and, as a result, in identifying the parties
who may participate in child custody proceedings, demonstrates that Appellants’
claimed right to intervene satisfies the importance prong of the collateral order doctrine.
Lastly, we turn to the final prong: whether Appellants’ claimed right will be
irreparably lost if review is postponed until after final judgment. In this regard, as noted,
Appellants rely on Barnes, a case which concerned the restructuring of a charitable
institution. Therein, an appellant seeking to participate in the orphans’ court
proceedings was denied intervention, failed to appeal from the trial court’s order
denying his petition to intervene, and, instead, lodged an appeal from the final order in
the case. We quashed the appellant’s appeal because he had failed to obtain
intervenor status and, thus, was not a party to the underlying action. See Barnes, 871
A.2d at 795. In so doing, we reasoned that “a common pleas court’s order denying
intervention is one type of order which must be appealed within thirty days of its entry
under Rule of Appellate Procedure 903, or not at all, precisely because the failure to
attain intervenor status forecloses a later appeal.” Id. at 794 (emphasis added). We
explained that requiring a party who has satisfied the requirements of the collateral
order doctrine to timely appeal from the denial of intervention, rather than wait to appeal
that denial after final judgment, was the preferred approach in such circumstances, as it
would avoid the “risk [of] interference with trial court proceedings taken after the denial
of intervention, a prospect far costlier than insisting that the applicant appeal the denial
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without waiting to see whether the outcome of the proceedings leaves intervention still
desirable.” Id. at 795 (quoting Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, 15A Fed Prac. & Proc. Juris.2d § 3902.1 (2005)).
While Barnes did not involve a child custody action, its language is broad and
applies to any “common pleas court’s order denying intervention.” Barnes, 871 A.2d at
794. Moreover, the rationale behind requiring the immediate appeal of a denial of
intervention in Barnes — namely, the risk of interference with subsequent trial
proceedings — is even more pronounced in the context of a child custody action, given
the significant interests at stake. We, therefore, find that Barnes applies to the trial
court’s order in the instant case. Accordingly, because Barnes unequivocally requires
any party who was denied intervention and who satisfies the requirements of Rule 3138
to appeal from the order denying intervention within 30 days of its entry or lose the right
to appeal the order entirely, Appellants’ right to appeal from the order denying
intervention in the instant case will be manifestly lost if they are not permitted to appeal
the order.
We recognize that this result may appear to be in tension with our goal of
achieving the prompt resolution of child custody disputes, as permitting the piecemeal
appeal of an order denying intervention may delay custody proceedings. However, we
find this delay is preferable to the alternative of completely denying a party the right to
file an appeal — given the possibility that the party does, in fact, have standing and
should have been granted intervention — which then forces that party to file his or her
own separate custody action in order to seek redress. Moreover, our courts are firmly
committed to the prompt and efficient resolution of matters involving children, including
8 This Court also indicated that the same requirement applies to a party appealing an
order denying intervention under Rule 312. See Barnes, 871 A.2d at 794.
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child custody actions, as exhibited by our appellate rules and Internal Operating
Procedures (“IOPs”), which have responded to the unique issues associated with
appeals involving children — deemed “children’s fast track appeals” — by expediting
such actions, “shorten[ing] the time frames for all aspects of the appellate process.” G.
Ronald Darlington et al., Pennsylvania Appellate Practice § 102:9.1. Indeed, our
appellate rules and IOPs provide for not only an expedited briefing schedule for
children’s fast track appeals, see Pa.R.A.P. 2185(a)(2), but also a reduced time period
in which appellate courts are required to draft and circulate judicial opinions in such
matters. See Supreme Court IOP § 4; Superior Court IOP § 65.42.
Accordingly, as Appellants’ appeal satisfies each of the three elements of the
collateral order doctrine, we conclude that the trial court’s order denying intervention is
an appealable collateral order as of right under Rule 313 and, consequently, that the
Superior Court erred in quashing Appellants’ appeal. We, thus, reverse the order of the
Superior Court and remand to that court for consideration of the merits of Appellants’
appeal.
Jurisdiction relinquished.
Mr. Chief Justice Saylor and Messrs. Justice Eakin, Baer and Stevens join the
opinion.
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