K.C. and V.C. v. L.A. Appeal of: D.M and L.N.

[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)

[J-90-2015] - 2
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.

[J-90-2015] - 3
 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

[J-90-2015] - 4
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

[J-90-2015] - 5
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

[J-90-2015] - 7
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.”).

[J-90-2015] - 8
 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

[J-90-2015] - 9
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.

[J-90-2015] - 10
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.

[J-90-2015] - 11