J-A21015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J. L., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
M.J., M.W., AND R.J. (DECEASED),
Appellees No. 402 WDA 2017
Appeal from the Order Dated February 8, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): FD-14-007648
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 20, 2017
J.L. (“Grandmother”), who is the maternal grandmother of I.M.J. (born
in August of 2009) and A.E.J. (born in August of 2012) (“Children”), states
in her Notice of Appeal that she is appealing from the order, dated February
8, 2017, and entered on the trial court docket on February 17, 2017. After
review, we are compelled to quash this appeal.
Grandmother and M.J. (“Grandfather”), who is the maternal
grandfather of Children, were the parents of R.J., Children’s mother, who
died in October of 2016.1 Grandparents have been divorced since before
Children were born, with Grandfather living in Pennsylvania and
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1 According to the trial court, M.W. is believed to be the biological father of
I.M.J. The record contains no information as to A.E.J.’s father.
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Grandmother living in Florida until her move to Pennsylvania after Children’s
mother died.2 Grandfather has had temporary legal and physical custody of
Children pursuant to an order of court dated August 15, 2014.
In December of 2016, Grandmother filed a complaint for primary
custody of Children. This matter was referred to the trial court via a rule to
show cause and, after argument, the court determined that Grandmother
lacked standing under section 5324(3) of the Domestic Relations Code, 23
Pa.C.S. § 5324. That order was dated January 19, 2017, and was entered
on the docket on January 23, 2017 (“Standing Order”). Thereafter, on
February 17, 2017, the court entered the order, dated February 8, 2017,
that purportedly is on appeal, which granted leave to Grandmother to
“amend her Complaint for Custody seeking partial custody….” Also on
February 17, 2017, Grandmother filed a motion for reconsideration of the
Standing Order that contained averments relating to the court’s
determination that she lacked standing. Other than the February 8, 2017
order allowing Grandmother to amend her complaint, the record contains
nothing that could be deemed a grant of reconsideration by the trial court.
Grandmother filed her appeal to this Court on March 7, 2017,
indicating that she was appealing from the February 8, 2017 order.
However, the two issues she asserts in her brief reference the standing issue
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2 Children’s mother had two additional children, one born in 2014 and
another born in 2016, who are both living with Grandmother.
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and her request for a hearing. Specifically, the issues as stated in her brief
are:
I. The lower court erred by denying [Grandmother] standing to
request custody under 23 Pa.C.S.[] § 5324.
II. The lower court erred by denying the request for a hearing on
standing pursuant to [Grandmother’s] motion for
reconsideration.
Grandmother’s brief at 3. These issues only reference the January 23, 2017
Standing Order, determining that Grandmother lacked standing. The issues
do not in any way relate to the February 8, 2017 order that allows for the
amendment of Grandmother’s custody complaint; it is clearly not the order
underlying the claims Grandmother seeks to raise herein. Grandmother’s
appeal should have been filed within thirty days of the entry of the January
19, 2017 order, i.e., within thirty days of January 23, 2017. See Pa.R.A.P.
903(a) (stating that appeal “shall be filed within 30 days after the entry of
the order from which the appeal is taken”).
Furthermore, we note that Grandmother’s motion for reconsideration
did not toll the thirty-day appeal period in that no order expressly granting
reconsideration was ever entered by the trial court. See Pa.R.C.P.
1930.2(b). Rule 1930.2(b) provides:
(b) A party aggrieved by the decision of the court may file a
motion for reconsideration in accordance with Pa.R.A.P.
1701(b)(3). If the court does not grant the motion for
reconsideration within the time permitted, the time for filing a
notice of appeal will run as if the motion for reconsideration had
never been presented to the court.
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Pa.R.C.P. 1930.2(b).
Moreover, Pa.R.A.P. 1701(b)(3) provides:
(b) Authority of a trial court or agency after appeal. After
an appeal is taken or review of a quasijudical order is sought,
the trial court or other government unit may:
...
(3) Grant reconsideration of the order which is the subject of the
appeal or petition, if:
(i) an application for reconsideration of the order is filed in the
trial court or other government unit with the time provided
or prescribed by law; and
(ii)an order expressly granting reconsideration of such prior
order is filed in the trial court or other government unit
within the time prescribed by these rules for the filing of a
notice of appeal or petition for review of a quasijudical
order with respect to such order, or within any shorter
time provided by law for the granting of reconsideration.
Pa.R.A.P. 1701(b)(3).
Accordingly, under the circumstances here, Grandmother’s Notice of
Appeal should have referenced the January 23, 2017 Standing Order as the
one from which she is appealing, and not the February 8, 2017 order. Thus,
her Notice of Appeal, filed on March 7, 2017 is both untimely and stems
from the wrong order. Therefore, we are compelled to quash this appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
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