J-A16026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.G., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appe||ee :
V. 5
s.J., l
Appellant l No. 64 WDA 2016
Appeal from the Order of December 18, 2015
In the Court of Common Pleas of A||egheny County
Family Court at No(s): FD 07-009307-004
BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, JJ.: FILED OCTOBER 24, 2016
Appellant, S.J.1 (“Father"), appeals pro se from the order entered
December 18, 2015, modifying child custody. As Father failed to preserve
any issues for appeal, We affirm.
The trial court summarized the factual and procedural history relevant
to this appeal as follows:
On April 2, 2015, Father petitioned the [c]ourt to modify the
custody arrangement of his 15-year-old daughter [], who has
been the subject of regular and substantial litigation for the
better part of a decade. Following their pre-trial conciliation in
September, the parties selected a trial date and the matter was
set for [a custody trial on] December 16, 2015. [The trial
court] sua sponte appointed counsel for the parties' minor child.
Father petitioned [the trial court] to reconsider the appointment,
1 We use the parties' initials in the caption and throughout this
memorandum to protect the identity of the minor child.
*Retired Senior Judge assigned to the Superior Court.
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which [was] denied on November 18. Failing that, Father sought
on December 4, 2015 to discontinue the custody trial. After it
was made clear to the [c]ourt that both Mother and child still
wished to hold the trial, [the trial court] denied Father leave to
discontinue the action. Father appealed the same day.[z] On
December 16, the [c]ourt held its custody [trial]. [Father was
not present for the trial.]
The [c]ourt issued a corresponding order on December 17, 2015,
docketed on December 18, 2015.
Trial Court Opinion, 2/11/16, at 2-3. On January 12, 2016, this timely
appeal followed.
For the reasons that follow, Father's appeal cannot proceed as he
failed to preserve any issues for our review. Therefore, we do not reach the
merits of Father's claims.
As a preliminary matter, our Rules of Appellate Procedure require an
appellant in a Children's Fast Track case to file a concise statement of errors
complained of on appeal with his or her notice of appeal. Pa.R.A.P.
905(a)(2); Pa.R.A.P. 1925(a)(2)(i). A failure to file a Rule 1925 concise
statement contemporaneously with the notice of appeal results in a defective
notice of appeal, to be disposed of on a case-by-case basis. In re K.T.E.L.,
983 A.2d 745, 747 (Pa. Super. 2009).
This Court has stated, “the extreme action of dismissal should be
imposed by an appellate court sparingly, and clearly would be
inappropriate when there has been substantial compliance with
the rules and when the party [moving for quashal of the appeal]
2 On December 28, 2015, this Court quashed the appeal as interlocutory.
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has suffered no prejudice. Stout v. Universal Underwriters
Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980). Accordingly, as
there is no per se rule requiring quashal or dismissal of a
defective notice of appeal, we hold that in the instant case and
henceforth, the failure of an appellant in a [C]hildren's [F]ast
[T]rack case to file contemporaneously a concise statement with
the notice of appeal pursuant to [R]ule 905(a)(2) and
1925(a)(2), will result in a defective notice of appeal. The
disposition of the defective notice of appeal will then be decided
on a case by case basis under the guidelines set forth in Stout,
supra.
Id.
The instant appeal is a Children's Fast Track case. Civil/Family
Division Docket, entry at 1/12/16; Trial Court Opinion, 2/11/16, at 3; see
also, ].M.R. v. ].M., 1 A.3d 902, 906 (Pa. Super. 2010) (applying Children's
Fast Track procedure to an appeal from a trial court order modifying child
custody). Father apparently failed to comply with the Children's Fast Track
requirement that he submit a 1925(b) statement contemporaneously with
his notice of appeal.3 See Civil/Family Division Docket, entry at 1/12/16;
Trial Court Opinion, 2/11/16, at 3. Therefore, Father's notice of appeal is
defective. See K.T.E.L., 983 A.2d at 747. However, as Father's procedural
misstep has not prejudiced the other party and does not impede our review
3 Although Appellant's reproduced record contains a copy of a 1925(b)
statement apparently filed on February 8, 2016, the certified record which
we must rely on exclusively does not make it clear as to whether Father
failed to file contemporaneously a 1925(b) statement with his notice of
appeal or failed to file such a statement at all. The trial court opinion states
generically that “Father failed to abide by Pa.R.A.P. 1925(b) and Rule
905(a)(2).” Trial Court Opinion, 2/11/16, at 3. The relevant docket entry
ambiguously describes the 1925(b) statement as “filed/not filed.”
Civil/Family Division Docket, entry at 1/12/16.
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of the matter, we need not quash or dismiss his appeal for noncompliance.
See id.
Father currently challenges the trial court's application of the custody
factors set forth at 23 Pa.C.S.A. § 5328(a), the denial of his motions to
compel discovery, and the appointment of counsel for the child. By failing to
appear before the trial court at the custody trial on December 16, 2015 and
present his evidence and arguments on the record, Father failed to preserve
his issues for appellate review. Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”);
see also, E.D. v. M.P., 33 A.3d 73, 80 (Pa. Super. 2011) (failing to object
to alleged procedural issues before the trial court results in waiver of those
issues on appeal).
Alternatively, we may dismiss this appeal because Father's brief
substantially fails to conform to all requirements of the Pennsylvania Rules of
Appellate Procedure. Commonwealth v. Adams, 882 A.2d 496, 497-98
(Pa. Super. 2005); Pa.R.A.P. 2101.
The brief of the appellant . . . shall consist of the following
matters, separately and distinctly entitled and in the following
order:
(1) Statement ofjurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the standard of
review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
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(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in [s]ubdivisions (b)
and (c) of this rule.
Pa.R.A.P. 2111(a).
Father's brief only minimally conforms with (1) and (2) and omits
anything that could be described as complying with (3), (5), (6), (8), and
(9). Because Father failed to offer a coherent argument based on the
application of law to the facts of his case, we have no opportunity for
meaningful review. See In re Estate of Whitley, 50 A.3d 203, 209-210
(Pa. Super. 2012), appeal denied, 69 A.3d 603 (Pa. 2013); see also, Iron
Age Corp. v. Dvorak, 880 A.2d 657, 665 (Pa. Super. 2005) (“This Court
will not consider the merits of an argument which fails to cite relevant case
or statutory authority."). Father has instead chosen to summarily list a
string of alleged “lies" and “absurdities,” which does not comply with briefing
standards. In re Ullman, 995 A.2d 1207, 1212 (Pa. Super. 2010) (“An
appellant's generalized recitation of his version of the facts fails to meet
pleading standards.”), appeal denied, 20 A.3d 489 (Pa. 2011). The briefing
standards apply with full force to pro se litigants. Id. at 1211-1212
(“Although this Court is willing to liberally construe materials filed by a pro
se litigant, pro se status confers no special benefit upon the appellant.").
For each of the foregoing reasons, we are constrained to find all of
Father's claims waived for purposes of appeal.
_5_
J-A16026-16
Order affirmed.
Judge Shogan joins this Memorandum.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 10/24/2016