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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
E.T.S., III, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 770 EDA 2017
:
C.S. :
Appeal from the Order Entered February 14, 2017,
in the Court of Common Pleas of Northampton County
Civil Division at No. C0048CV2005002186
BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 13, 2017
E.T.S., III (“Father”), appeals pro se from the February 14, 2017
order denying his petition requesting that the entire Northampton County
Court of Common Pleas judiciary recuse itself from the parties’ protracted
custody proceedings. After careful review, we quash this appeal.
Father and C.S. (“Mother”) were married on December 31, 2003, and
are the parents of minor child, S.J.S (“Child”), who was born after the
parties separated. The parties were divorced on December 31, 2007, and
have been entangled in custody proceedings since April 2005. Recently, in
February 2016, the Honorable Michael J. Koury, Jr., conducted a four-day
non-jury trial on Father’s petition for contempt, counter-petition for
modification of custody order, and motion for reconsideration, and Mother’s
petition for modification of custody order. On June 9, 2016, Judge Koury
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entered an order and opinion disposing of the parties’ petitions.
Judge Koury’s opinion summarizes the lengthy procedural history of this
case up until that date, and it need not be reiterated here. (See trial court
opinion, 6/9/16 at 2-9.)
The instant appeal arises from the Honorable Stephen G. Baratta’s
denial of Father’s November 16, 2016 petition requesting that the entire
Northampton County Court of Common Pleas judiciary recuse itself from the
parties’ custody proceedings. This recusal petition was not initially listed for
a hearing. It is noteworthy, however, the number of appeals by Father that
have been quashed in this matter since that time. Specifically, on
November 25, 2016, Father filed a notice of appeal from the November 8,
2016 order granting Mother’s petition to have a counselor appointed for
Child. (See No. 3673 EDA 2016.) Father’s appeal was quashed by this
court on January 23, 2017. On December 19, 2016, Father filed a notice of
appeal from a November 30, 2016 order on the basis it contained a
“scrivener’s error.” (See No. 14 EDA 2017.) This order was entered
following a November 29, 2016 custody conference between the parties
during which Mother agreed to submit to psychological evaluation at Father’s
request. This court quashed Father’s appeal on January 20, 2017.
Additionally, on January 11, 2017, Father filed a notice of appeal from the
January 5, 2017 order denying his sixth petition for contempt and modifying
the November 30, 2016 custody order. (See No. 307 EDA 2017.) On
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April 19, 2017, this court dismissed Father’s appeal due to his failure to file a
brief.
Father’s November 16, 2016 recusal petition, which is the subject of
the instant appeal, was renewed after the November 29, 2016 custody
conference. On January 11, 2017, the trial court scheduled a hearing on
Father’s petition, which was held on February 8, 2017. At this hearing, the
trial court conducted an extensive inquiry into the individuals with whom
Father believed the trial court had an improper “prior professional
relationship.” (See notes of testimony, 2/8/17 at 54-57.) As noted, the
trial court entered an order on February 14, 2017 denying Father’s petition. 1
(Trial court order, 2/14/17.) That same day, the trial court authored a
“statement of reasons” in support of said order. (See id. at 1-3.) On
February 28, 2017, Father filed a timely pro se notice of appeal. Although
not ordered to do so, Father filed a four-page Pa.R.A.P. 1925(b) statement
that same day. Thereafter, on March 2, 2017, the trial court filed its
Rule 1925(a) opinion.2
1
The record reflects that the February 14, 2017 order was dated February 8,
2017 and is referred to as such throughout various pleadings.
2
On March 20, 2017, this court directed Father to show cause as to why this
appeal should not be quashed as interlocutory. That same day, this court
entered a per curiam order determining that Father’s appeal “does not
meet the definition of a Children’s Fast Track case pursuant to
Pa.R.A.P. 102” and directed the Prothonotary to remove the Children’s Fast
Track designation. (Per curiam order, 3/20/17.) Father filed his response
to the rule to show cause order on March 29, 2017. Thereafter, on April 7,
2017, we issued a per curiam order discharging the rule to show cause,
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Father raises the following issues for our review:
1. Whether the evidence supports the reversal of
the February 8, 2017 Order (Void ab initio
11/19/2005 Order)?
2. Whether it is in this child’s best interest for
Dr. Esteve to be immediately (fast track)
appointed to complete the agreed, non-biased
custody evaluation, initiated in 2005?
3. Whether this should be a fast-track custody
matter and remanded to an out of County
Judge for prompt resolution?
Father’s brief at 4 (citations to certified record and case law omitted).
Preliminarily, we note that to the extent Father challenges the prior
custody determinations on appeal, we deem those issues waived. Father’s
Rule 1925(b) statement and brief raise a litany of ancillary claims concerning
the parties’ custody arrangement and his dissatisfaction with various rulings
of the Northampton County Court of Common Pleas since 2005. As
recognized by the trial court, the February 14, 2017 order from which this
appeal is taken “did not modify custody or address any custody issues” and
have no place in this appeal. (Rule 1925(a) opinion, 3/2/17 at 1.)
Accordingly, Father has waived any issues pertaining to the prior custody
determinations of the Northampton County Court of Common Pleas.
declining to make a “final determination as to the propriety of the appeal.”
(Per curiam order, 4/7/17.)
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The crux of Father’s remaining argument on appeal is that the trial
court abused its discretion in failing to recuse itself from the parties’ custody
proceedings. (Father’s brief at 48-61.) Father’s claim is premised on his
dissatisfaction with the various rulings of the judges in the Northampton
County Court of Common Pleas that have presided over this custody matter
since 2005. (Id.) Before we proceed to consider Father’s claim, we must
determine whether the appeal is properly before us. It is well established
that “[t]he appealability of an order directly implicates the jurisdiction of the
court.” Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1067 (Pa.Super.
2014) (citation and quotation marks omitted). Under Pennsylvania law,
[a]n appeal may be taken from: (1) a final order or
an order certified as a final order (Pa.R.A.P. 341);
(2) an interlocutory order as of right (Pa.R.A.P. 311);
(3) an interlocutory order by permission
(Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or
(4) a collateral order (Pa.R.A.P. 313).
A final order is one that disposes of all the parties
and all the claims . . . or is entered as a final order
pursuant to the trial court’s determination.
Veloric v. Doe, 123 A.3d 781, 784 (Pa.Super. 2015) (internal case citations
and quotation marks omitted).
As noted, the February 14, 2017 order did not address or modify the
parties’ custody arrangement, but merely denied Father’s recusal petition.
Generally, an order denying a motion for recusal is not a final, appealable
order. In re Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa.Super.
2012). In some circumstances, however, an order granting or denying a
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motion to recuse may be immediately appealable. See, e.g.,
Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (plurality) (considering
an appeal where the Commonwealth certified the order denying its motion
for recusal handicapped its case pursuant to Pa.R.A.P. 311(d)).
Instantly, Father’s appeal is not from a final order or a Rule 311
interlocutory appeal as of right, and he did not seek to file an interlocutory
appeal by permission pursuant to Rule 312. We must, therefore, determine
whether the order in question qualifies as a collateral order under Rule 313.
The collateral order doctrine authorizes an interlocutory appeal when:
“(a) [t]he order is separable from and collateral to the main cause of action;
(b) [t]he right involved is too important to be denied review; and (c) [t]he
question presented is such that if review is postponed until final judgment in
the case, the claim will be irreparably lost.” Dougherty v. Heller, 138 A.3d
611, 616 (Pa. 2016) (citation omitted). The collateral order doctrine “must
be interpreted narrowly[,]” and “each prong of the collateral order doctrine
must be clearly present before an order may be considered collateral.”
Ignelzi v. Ogg, Cordes, Murphy & Ignelzi, LLP, 160 A.3d 805, 811
(Pa.Super. 2017) (citations and internal quotation marks omitted).
Upon review, we find that the trial court’s February 14, 2017 order is
not a collateral order such that our jurisdiction is invoked. First, Father’s
claim is not separate from and collateral to the main cause of action; rather,
the order in question is intertwined with the underlying custody dispute,
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which had been ongoing since 2005. Second, Father’s appeal does not
constitute a right so important to the public that it should not be denied
review.
Third, it is clear that Father will not be irreparably harmed by our
decision to quash his appeal from the order denying his recusal petition,
given the fact that a custody determination in this matter has already
occurred and that his recusal petition is essentially a “pre-trial” motion to
recuse and, thus, premature. We recognize that, at first blush, it appears
that the trial court’s February 14, 2017 order disposes of all claims since
there is no other action pending. However, as we surmised in Krieg v.
Krieg, 743 A.2d 509 (Pa.Super. 1999), Father’s petition to recuse should be
treated as a pre-trial motion for the purposes of appeal:
Practically, if parties are permitted to file an
appeal from a motion to recuse, before any
underlying action is filed in connection
therewith, this Court could be faced with
reviewing appeals which, if granted, would
have no effect. That is, this Court could find that a
trial court judge should be recused, and then no
underlying action may be filed. As such, we
conclude that a motion to recuse may be reviewed
only after an underlying action is filed and has been
decided.
Id. at 511 n.3 (emphasis added). The Krieg court held that “a pre-trial
motion seeking to recuse a judge from further proceedings is not a final
order . . . an appeal from a denial of a pre-trial motion to recuse does not fit
into any of the categories listed in Rules 311 [(interlocutory appeal as of
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right)] and 313 [(collateral order)] and, therefore, it is not an interlocutory
or collateral order that is immediately appealable. Id. at 511 (citations and
footnote omitted).
Based on the foregoing, we conclude that we lack jurisdiction to
entertain Father’s claims and quash this appeal as interlocutory.
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2017
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