J-S83043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.W. AND D.W., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
v. :
:
F.T. AND J.T., :
:
Appellees : No. 1007 WDA 2016
Appeal from the Order Entered June 6, 2016
in the Court of Common Pleas of Indiana County
Civil Division at No(s): 11815 C.D. 2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 16, 2016
D.W. and D.W. (Grandparents) appeal from the order entered June 6,
2016, in the Court of Common Pleas of Indiana County, which denied their
complaint for partial physical custody of their grandchildren, J.S.T., a male
born in January of 2006; W.M.T., a male born in January of 2008; and
P.R.T., a female born in May of 2012 (collectively, the Children). After
careful review, we quash the appeal.
The trial court summarized the factual and procedural history of this
matter as follows.
[F.T. (Mother)] and [J.T. (Father)] (hereinafter Parents)
were married for approximately seven years and had three
children during the course of their relationship. Parents
separated in May 2013. Since May 2013, Father has had
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S83043-16
primary custody of the three children and Mother has had partial
supervised custody twice a week. The Grandparents currently
have no custody provision for seeing the [C]hildren and testified
that they have not been significantly involved or included in the
[C]hildren[’s] lives since the 2013 separation.
In November 2014, 18 months after Parents’ separation,
Grandparents filed a complaint seeking partial custody of the
three minor children. On January 12, 2015, the [trial] court
ordered that the parties attend mediation in hopes of resolving
the matter. A mediation conference was held on April 8, 2016.
The parties were unable to reach an agreement at the mediation
conference. . . .
Trial Court Opinion, 6/6/2016, at 3.
The trial court held a custody hearing on September 10, 2015.
Following the hearing, on November 5, 2015, the court entered an order
denying Grandparents’ custody complaint. Grandparents appealed. On May
6, 2016, a prior panel of this Court vacated the November 5, 2015 order.
D.W. v. F.T., 2016 WL 2625910 (Pa. Super. May 6, 2016) (unpublished
judgment order). The panel concluded that the trial court erred by failing to
discuss the custody factors set forth at 23 Pa.C.S. § 5328(a) in its opinion,
and instead discussed only the factors set forth at 23 Pa.C.S. § 5328(c)(1).
The panel remanded the case to the trial court for the preparation of an
order and opinion considering both sets of factors.
On June 6, 2016, the trial court entered a new custody order, in which
it again denied Grandparents’ custody complaint. Grandparents filed a
notice of appeal on July 8, 2016, along with a concise statement of errors
complained of on appeal.
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Before reaching the merits of the issues raised by Grandparents, we
must first consider whether this Court has jurisdiction to hear their appeal.
While neither the parties, nor the trial court, challenges our jurisdiction, “it is
well established that questions of jurisdiction may be raised sua sponte.” In
re J.A., 107 A.3d 799, 809 n.11 (Pa. Super. 2015).
Pursuant to our Rules of Appellate Procedure, an appellant must file
his or her notice of appeal “within 30 days after the entry of the order from
which the appeal is taken.” Pa.R.A.P. 903(a). “Failure to file a timely notice
of appeal divests this Court of jurisdiction.” In re J.M.P., 863 A.2d 17, 19
(Pa. Super. 2004), appeal denied, 878 A.2d 864 (Pa. 2005) (citing
Commonwealth v. Edrington, 780 A.2d 721, 725 (Pa. Super. 2001)).
“Further, we are unable to deem an appeal timely except under the
narrowest of circumstances in which counsel for the offending party can
establish either a breakdown in the operations of the judicial support system
or extenuating circumstances that rendered him incapable of filing the
necessary notice.” Sass v. AmTrust Bank, 74 A.3d 1054, 1063 (Pa. Super.
2013), appeal denied, 85 A.3d 484 (Pa. 2014).
Instantly, the trial court entered the subject custody order on June 6,
2016.1 Grandparents therefore had until Wednesday, July 6, 2016, to file
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1
“The date of entry of an order in a matter subject to the Pennsylvania
Rules of Civil Procedure shall be the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). Here, the trial court
(Footnote Continued Next Page)
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their notice of appeal. Our review of the record confirms that Grandparents
did not file their notice of appeal until two days later, on Friday, July 8,
2016. Further, Grandparents make no effort to argue that their failure to file
a notice of appeal by July 6, 2016, was due to a breakdown in the operations
of the judicial support system or other extenuating circumstances. Thus,
Grandparents’ notice of appeal was untimely filed, and we are divested of
jurisdiction to hear this appeal. See In re J.M.P., 863 A.2d at 19.
Based on the foregoing, we conclude that we lack jurisdiction to hear
Grandparents’ appeal, and that the appeal must be quashed.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
_______________________
(Footnote Continued)
docket includes an entry dated June 6, 2016, which indicates that a copy of
the subject custody order was sent to Grandparents’ attorney that same
day.
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D.W. and D.W. v. F.T. and J.T.
Combined Opinion