J-S91036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CHRISTINE M. LYONS, N/K/A                  :   IN THE SUPERIOR COURT OF
    CHRISTINE M. BRACE                         :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
               v.                              :
                                               :
                                               :   No. 827 MDA 2016
    DENNIS J. LYONS                            :


                  Appeal from the Order Entered April 18, 2016
              In the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 2002-FC-3128


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED DECEMBER 22, 2016


        Appellant Christine M. Lyons, N/K/A Christine M. Brace (hereinafter

“Wife”) appeals pro se the Order entered in the Court of Common Pleas of

Lackawanna County on April 18, 2016, granting the preliminary objections of

the City of Scranton Police Pension Fund (the “Pension Fund”).            After a

careful review, we affirm, albeit for reasons different from those expressed

by the trial court.1


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1
  It is well-settled that an appellate court may affirm the trial court’s decision
if there is any basis on the record to support that decision even if the
(Footnote Continued Next Page)

* Former Justice specially assigned to the Superior Court.
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      Wife and the named Appellee, her deceased ex-husband Dennis J.

Lyons (Husband), were married on June 29, 1996. On June 5, 2002, Wife

filed a Complaint in Divorce, and the divorce decree was filed on November

3, 2004.     The parties entered into a Marital Settlement Agreement on

November 1, 2004.          Pursuant thereto, the trial court entered a Qualified

Domestic Relations Order (QDRO) on November 28, 2012, which provided

that Wife would receive a marital share of Husband’s Pension Fund.

Specifically, under the QDRO Appellant would receive a 50% marital portion

of the Pension Fund for the years of marriage from June 29, 1996, to June 5,

2002. See QDRO, filed 11/28/12, at ¶ 8.

      Husband retired on October 24, 2012, and passed away on April 10,

2015. Wife received payments from the Pension Fund pursuant to the QDRO

from November 28, 2012, until Husband’s death, at which time the Pension

Fund maintained that payments were no longer due to Wife in light of

language found in the Ordinances of the City of Scranton governing such

payments.

      On September 4, 2015, Wife filed her “Motion to Compel the City of

Scranton to Comply with the November 28, 2012, Qualified Domestic

Relations Order” and named Husband as the defendant therein. On

                       _______________________
(Footnote Continued)

appellate court relies upon a different basis in its decision to affirm.   In re
Adoption of Z.S.H.G., 34 A.3d 1283, 1288 (Pa.Super. 2011).




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September 4, 2015, the trial court issued a Rule upon a non-party, the City

of Scranton, to show cause why Appellant’s Motion should not be granted.

Subsequently, on September 29, 2015, the Pension Fund filed Preliminary

Objections to Appellant’s motion claiming the trial court both improperly had

identified it as the City of Scranton and lacked jurisdiction over it.2     The

Pension Fund further maintained that Wife had failed to state a claim upon

which relief may be granted in light of Ordinances of the City of Scranton. 3

Following oral argument on March 21, 2016, the trial court entered an Order

granting the Preliminary Objections on April 18, 2016. In support of its


____________________________________________


2
    The Pension Fund explained that it is a trust fund established by
Ordinances of the City of Scranton for the benefit of current and future
retirees of the Scranton Police Department, is governed by a Board pursuant
to Commonwealth law and Scranton Ordinances and is legally distinct from
the City of Scranton. See Preliminary Objections Pursuant to Rule 1028(a),
filed September 29, 2015, at ¶¶ 1-3.
3
    We note that PaR.C.P. 1028 provides, in relevant part, the following:

        (a)   Preliminary objections may be filed by any party to any
              pleading and are limited to the following grounds:

              (1) lack of jurisdiction over the subject matter of the
              action or the person of the defendant, improper venue or
              improper form or service of a writ of summons or a
              complaint;
                                        ***
              (4) legal insufficiency of a pleading (demurrer);


Pa.R.C.P. 1028(a)(1), (4).




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finding Wife was not entitled to Pension Fund payments following Husband’s

death, the trial court reasoned as follows:

      10. Husband’s pension plan is established by Ordinances of the
         City of Scranton, which provide,

            Section 1. Any member of the Police Pension or retirement
            fund who is married and who elects in writing to be
            governed by the provisions of the Act of 1965, P.L. 835…
            and who retires under the provisions of the law regulating
            the retirement of police officers therein and ordinances of
            the City heretofore adopted and adopted pursuant thereto
            as shall, receive the pension so provided for during his
            lifetime and a pension after his death, payable to his
            surviving spouse at the time of retirement… Provided
            that such person so retiring shall have been married
            to his spouse not less than five years prior to the
            date of retirement and the spouse is dependent upon
            such deceased employee at the time of his death.
            (File of the Council No. 4 1975, emphasis added).

      11. Pursuant to paragraph thirteen (13) of the QDRO,
          “Savings Clause: This Order is not intended, and shall not
          be construed in such a manner as to require the Plan: (a)
          to provide any type of form of benefit option not otherwise
          provided under the terms of the Plan.” (QDRO, 11/28/12).

Trial Court Order, filed April 18, 2016, at ¶¶ 10-11.

      On May 18, 2016, Appellant filed a timely notice of appeal with this

Court.   Although the trial court did not direct Appellant to file a concise

statement of the matters complained of on appeal, it filed an Opinion

pursuant to PaR.A.P. 1925(a) on June 15, 2016.

      Appellant presents the following statement of the Questions Involved:

            Did Trial Court err at law or abuse its discretion when it
      granted the Scranton Police Pension Fund’s Preliminary
      Objections that asserted that [Appellant] had no right to
      continue to receive an equitable distribution of marital assets in

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      the form of deferred pension payments after the death of her ex-
      husband, even though a certified [QDRO] specifically stipulated
      that she would receive pension payments post-death.

Brief for Appellant at 4.

      Initially, we must determine whether the trial court’s order is a final,

appealable order.     A court's jurisdiction is a threshold issue that it may

consider sua sponte at any time. McCutcheon v. Philadelphia Elec. Co.,

567 Pa. 470, 478, 788 A.2d 345, 349 (2002). Under Pennsylvania law, this

Court may reach the merits of an appeal taken from (1) a final order or an

order certified as final by the trial court (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); or (4) a collateral order (Pa.R.A.P. 313). See In re Estate

of Cella, 12 A.3d 374, 377 (Pa.Super. 2010).

      We begin with an examination of Rule 341(a) of the Pennsylvania

Rules of Appellate Procedure which provides that “an appeal may be taken

as of right from any final order of an administrative agency or lower court.”

Pa.R.A.P. 341(a). The purpose of limiting appellate review to final orders is

to prevent piecemeal determinations and the consequent protraction of

litigation. A final order is defined as follows:

      (b) Definition of final order. A final order is any order that:

      (1) disposes of all claims and of all parties; or
      (2) is expressly defined as a final order by statute; or
      (3) is entered as a final order pursuant to subdivision(c) of this
      rule.

Pa.R.A.P. 341(b).



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      The within matter is riddled with procedural anomalies. First, rather

than commence the action by filing an action for declaratory judgment

complaint with the trial court pursuant to Pa.R.C.P. 1601 and Pennsylvania's

Declaratory Judgments Act, 42 Pa.C.S.A. § 7531, Wife initiated the

underlying action by filing a Motion to Compel the City of Scranton to comply

with the November 28, 2012, QDRO, and named her deceased, ex-husband

as the defendant therein. This filing prompted the trial court to enter a Rule

and Order for a hearing upon the City of Scranton to show cause why

Appellant’s motion should not be enforced. However, to complicate matters

even further, the Pension Fund has indicated that it and the City of Scranton

are distinct entities, yet the Pension Fund filed the Preliminary Objections

which form the basis of the Trial Court’s April 18, 2016, Order.

      Notwithstanding the foregoing, the trial court’s April 18, 2016, Order

granting the Pension Fund’s Preliminary Objections with prejudice made a

final determination as to Wife’s entitlement to further payments from the

Pension Fund following Husband’s death. This is so even though the matter

was not properly commenced via a complaint and did not name the

appropriate entity, the Pension Fund, as a party thereto. As such, under the

unique circumstances presented herein, we find the trial court’s April 18,

2016, Order constitutes a final, appealable order, and we next consider

whether the trial court erred in granting the Pension Fund’s Preliminary

Objections.


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       Appellant avers the trial court erred in its determination she was not

entitled to continue receiving payments from her former Husband’s Pension

Fund pursuant to the QDRO which specifically provided she would receive

payments following Husband’s death.4 However, as stated previously, in its

Preliminary Objections, the Pension Fund represented that it is a trust fund

legally distinct from the City of Scranton, established by Ordinances thereof,

and governed by a Board pursuant to state and local laws. See Preliminary

Objections filed 9/29/15, at ¶¶ 1-3. Though legally responsible for

administering Husband’s earned pension benefit, the Pension Fund was not

named as a party to the Motion to Compel which forms the basis of the

instant appeal. As such, the trial court lacked jurisdiction over the Pension

Fund to grant the relief Wife requested; therefore, the Preliminary

Objections Pursuant to Rule 1028(a) were properly granted. See Pa.R.A.P.

1028(a)(1).5

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4
  In this regard, paragraph eleven of the QDRO states the following: “Death
of Participant: In the event that the Participant dies either prior to or after
the establishment of a separate account in the name of the Alternate Payee,
the Participant’s death shall in no way affect Alternate Payee’s right to the
portion of her benefits set forth in paragraph No. 8.”
5
  We note that the Commonwealth Court considered a similar claim which
arose from an ex-spouse’s filing of Motion for Declaratory Judgment against
the City of Wilkes-Barre Police Pension Fund wherein she requested a
declaration that she was entitled to continue receiving payments from the
Pension Fund pursuant to a domestic relations order despite the fact that her
ex-husband had passed away several years prior. See Kenney v. City of
Wilkes-Barre Police Pension Fund, No. 1334 C.D. 2009, unpublished
(Footnote Continued Next Page)


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      In light of this decision, we do not reach the merits of the issue Wife

sets forth in her appellate brief. Further, we do not consider whether this

Court would have had had appellate jurisdiction over this matter in light of

42 Pa.C.S.A. § 762(a) had Wife properly initiated it pursuant to the

Pennsylvania Rules of Civil Procedure.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2016




                       _______________________
(Footnote Continued)

memorandum at 1 (Pa.Cmwlth. filed February 3, 2010). However, because
that decision was an unpublished memorandum opinion of the
Commonwealth Court, it cannot be relied upon nor cited for precedential
value herein. Commonwealth v. Sperry, 577 A.2d 603, 605 n. 4
(Pa.Super. 1990); Commonwealth v. McPherson, 533 A.2d 1060, 1062 n.
4 (Pa.Super. 1987). See also, Internal Operating Procedures of the Superior
Court § 65.37.



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