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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D.S. :
:
Appellant : No. 622 WDA 2019
Appeal from the Order Entered April 1, 2019
In the Court of Common Pleas of Blair County Civil Division at No(s):
No. 2017 GN 3424
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 7, 2019
D.S. (Father) appeals from the order, entered in the Court of Common
Pleas of Blair County, denying his preliminary objections to L.F.’s (Maternal
Aunt) petition to intervene and granting Maternal Aunt’s petition to intervene.
We quash.
C.F. (Mother) is deceased. Mother and Father are the parents of one
child, A.S. (Child), born 5/2009. Mother also has a child, D.F., from a different
father. Mother and Father were living together, but they parted ways in 2015.
Father moved to New York to live with his parents. Mother and Father shared
custody of Child by mutual agreement until January 24, 2018, when they
entered into a formal custody order by consent. Pursuant to that order, the
parties shared legal and physical custody, with Child residing primarily with
Mother and Father having visitation by mutual agreement.
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After a protracted battle with cancer, Mother passed away on August 5,
2018. At that time, both children were living with Mother in Blair County.
Maternal Aunt and her husband (the Fergusons) filed a petition to intervene
and sought special relief with respect to custody of both children. Father filed
preliminary objections.
The court held hearings on September 20, 2018 and November 2,
2018.1 At the September 20, 2018 hearing, counsel for the Fergusons relayed
the following to the court: after Mother’s funeral, Father indicated that he
knew Mother wanted both children to be with Maternal Aunt and, that time,
Father agreed to that and wanted what was best for the children. N.T.
Hearing, 9/20/18, at 5-6.2 At the November 2, 2018 hearing, Maternal Aunt
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1 We note that on September 7, 2018, Maternal Aunt and her husband filed a
petition to intervene and for special relief, and the court entered an ex parte
order providing that temporary custody of the two minor children was with
Maternal Aunt, with Father having supervised visitation, pending hearing and
final resolution of the issues, without prejudice to either father. We are aware,
however, that Father’s argument points out that Mother’s Last Will and
Testament appointed him as Guardian, and we note with concern that
Maternal Aunt was less than forthright with the court about her sister’s will.
We presume that this matter will be fully explored and resolved in the custody
hearing.
2 At the hearing, counsel stated:
Since [the children] have been in my clients[’] care and
custody, . . . [Father] has not provided any type of support
for them. My clients have bought their clothes, provided
their food, provided their shelter, enrolled them in school,
had them to doctors, [have] them now enrolled in
counseling , . . . they provided emotional support for the
kids during this time, . . . and they did so with [Father’s]
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and Father testified, as did the legal assistant to Fergusons’ counsel, Thelma
Gressley.
Following the hearing, the court entered an order denying Father’s
preliminary objections and granting the Fergusons’ petition to intervene. The
court entered a temporary order granting custody of the children to the
Fergusons pending a hearing, without prejudice to either fathers’ rights.3 The
court’s order also provided Father with periods of partial custody.
Father filed this timely appeal. He raises three issues:
1. Did the trial court err and/or abuse its discretion in denying
Father’s preliminary objections to the petition to intervene
averring that the third party lacked standing to sue for any
form of custody?
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consent, and specifically, Your Honor, he contacted my
office and advised my staff and myself that he would agree
and would sign whatever necessary papers needed to be
signed in order to make that a permanent situation. So–
and I understand that he can change his mind, however, I
would point out that my clients have stepped into that role
. . . they provided for the kids since [Mother’s] death[.]
N.T. Hearing, supra at 6. Counsel for Father disputed this. Id. at 11.
However, counsel for Father assured the court that Father would want the
children to remain with the Fergusons in the interim to maintain stability in
their lives. Id. at 17.
3 The court held another hearing on September 20, 2018. At that hearing,
D.F.’s father did not appear. The court noted that Father intended to file a
petition to intervene in that matter and to seek guardianship of D.F. The court
entered an order on September 24, 2018, directing a hearing on the issue of
Father’s standing, and further noting the parties’ agreement to keep in place
the court’s September 10, 2018 order pertaining to temporary custody of the
children.
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2. Did the trial court err and/or abuse its discretion in granting
the third party’s petition to intervene and conferring upon
them in loco parentis status?
3. Did the trial court err and/or abuse its discretion when it
failed to issue a ruling on the preliminary objections in a
timely manner?
Appellant’s Brief, at 6.
Under Pennsylvania law, an appeal may be taken from: (1) a final order
or an order certified by the trial court as a final order; (2) an interlocutory
order as of right; (3) an interlocutory order by permission; (4) or a collateral
order. Beltran v. Piersody, 748 A.2d 715 (Pa. Super. 2000). An order
denying preliminary objections does not dispose of all claims and all parties
and, therefore, is not a final order. See Pa.R.A.P. 341(b) (stating that a final
order is an order that disposes of all claims and of all parties, or is expressly
defined as a final order by statute or the ordering court).
Generally, an order denying a party’s preliminary objections is defined
as an interlocutory order. F.D.P. v. Ferrara, 804 A.2d 1221, 1226 (Pa.
Super. 2002). See also Callan v. Oxford Land Development, Inc., 858
A.2d 1229, 1232 (Pa. Super. 2004). Interlocutory orders are only appealable
as of right or by permission in accordance with the Pennsylvania Rules of
Appellate Procedure. See Pa.R.A.P. 311(a)(9) (stating that an appeal may
be taken as of right from an interlocutory order if such order is made
appealable by statute or general rule); see also Midomo Co., Inc. v.
Presbyterian Housing Dev. Co., 739 A.2d 180, 184 (Pa. Super. 1999)
(order denying preliminary objections generally not appealable).
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Here, the court’s order is an interim order, not a final order; “[s]tated
differently, it did not completely resolve the custody dispute between [the
parties].” J.A.F. v. C.M.S., 164 A.3d 1277, 1281 (Pa. Super. 2016). See
G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1996) (order awarding father
temporary partial custody prior to custody hearing was not final and
appealable under Rule 341; custody order will be considered final and
appealable only after trial court has completed its hearings on merits and
resultant order resolves pending custody claims between the parties). Father
has not pointed to any rule or statute to support his argument that this
interlocutory order is appealable. Further, the trial court has not certified this
order as final pursuant to Pa.R.A.P. 341(c), Father has not sought permission
to appeal pursuant to Pa.R.A.P. 1311, nor has he demonstrated that the issue
satisfies the collateral order doctrine pursuant to Pa.R.A.P. 313.
Finally, Father’s reliance on K.W. v. S.L. and M.L.V.G.G., 157 A.3d 498
(Pa. Super. 2016), is misplaced. Extraordinary circumstances existed in
K.W.; there, father had been deprived of custody by private adoption to which
he did not consent, and his claim would have been irreparably lost if review
were postponed. See id. at 502. Here, no such circumstances exist. We,
therefore, quash this appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2019
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