J-S05026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: TODD (HYUNG-RAE) TARSELLI                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant



.

                                                       No. 930 MDA 2016


                   Appeal from the Order Entered May 4, 2016
                In the Court of Common Pleas of Luzerne County
                         Orphans' Court at No(s): 4990


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 17, 2017

        Appellant, Todd (Hyung-Rae) Tarselli, appeals from the order entered

in the Luzerne County Court of Common Pleas denying the petition to amend

his birth certificate. Appellant contends that the court erred by finding that

Appellant failed to present clear and convincing evidence of an incorrect date

of birth. We conclude that the trial court lacked jurisdiction due to

Appellant’s failure to join an indispensable party. We affirm.

        On October 7, 2015, Appellant filed a petition with the Luzerne County

Orphans’ Court to amend his birth certificate. Through his petition, Appellant

averred that the date of birth listed on his birth certificate is incorrect and

sought to change his birth year from 1973 to 1974. Appellant claimed that
____________________________________________



    Retired Senior Judge assigned to Superior Court.
J-S05026-17



he was born in Korea and taken to an orphanage at a young age and,

therefore, does not have any original documentation of his birth. An

American couple subsequently adopted Appellant, and the date of birth

assigned to him as a “foundling” on his Korean birth certificate was

transferred to his American birth certificate. However, Appellant claims that

cultural differences between the Korean calculation of age and American

calculation of age led to an inaccurate recordation of his actual birth year.

      Following a hearing on April 12, 2016, the orphans’ court denied

Appellant’s petition, citing Appellant’s failure to provide clear and convincing

evidence that his date of birth was incorrectly recorded, or conversely clear

and convincing evidence of his correct date of birth. Appellant timely

appealed.

      On appeal, Appellant claims that the trial court erred in denying his

petition because, contrary to the orphans’ court’s assertion, he did provide

clear and convincing evidence that the date of birth listed on his birth

certificate was incorrect. However, before we consider the merits of

Appellant’s substantive argument, we must first analyze whether the

orphans’ court had jurisdiction      to   entertain Appellant’s petition.       Cf.

Commonwealth v. Demora, 149 A.3d 330 (Pa. Super. 2016).

      We may raise the question of jurisdiction sua sponte. See Roman v.

McGuire Mem’l, 127 A.3d 26, 31 (Pa. Super. 2015), appeal denied, 134

A.3d 57 (Pa. 2016). “Under Pennsylvania law, the failure to join an




                                     -2-
J-S05026-17



indispensable party implicates the trial court’s subject jurisdiction.” Orman

v. Mortgage I.T., 118 A.3d 403, 406 (Pa. Super. 2015) (citation omitted).

      An indispensable party is one whose “rights are so connected with the

claims of the litigants that no decree can be made without impairing those

rights.” Sprauge v. Casey, 550 A.2d 184, 189 (Pa. 1988) (citations

omitted). Failing to join an indispensable party “renders any order or decree

of court null and void for want of jurisdiction.” CRY, Inc. v. Mill Service,

Inc., 640 A.2d 372, 375 (Pa. 1994) (citations omitted). See also 3

Standard Pennsylvania Practice 2d § 14:158. In evaluating whether a party

is “indispensable,” the following factors must be considered:

      1. Do absent parties have a right or an interest related to the
         claim?
      2. If so, what is the nature of that right or interest?
      3. Is that right or interest essential to the merits of this issue?
      4. Can justice be afforded without violating the due process
         rights of absent parties?

Martin v. Rite Aid of Pennsylvania, Inc., 80 A. 3d 813, 814 (Pa. Super.

2013) (citation omitted).

      Here, Appellant failed to join the Pennsylvania State Department of

Health as a party to his petition to amend his birth certificate. The

Pennsylvania State Department of Health is statutorily mandated to install,

maintain, and act as custodian for the statewide system of vital statistics

files and records. See 35 P.S. § 450.201. As part of their responsibility to

maintain vital statistics, the Pennsylvania State Department of Health

completes and registers birth certificates for all children born in Pennsylvania

                                     -3-
J-S05026-17


or born in another country when one parent is a citizen of the United States

and a resident of Pennsylvania. See 35 P.S. §§ 450.401 -450.403.

      Clearly, any action by an orphans’ court to alter or amend a citizen of

the Commonwealth of Pennsylvania’s birth certificate would greatly affect

the interest of the Pennsylvania State Department of Health. Additionally,

because the Pennsylvania State Department of Health does not appear to

have even been notified of these proceedings, they were unable to present

any opinion on the manner in which the orphans’ court should view

Appellant’s request.

      Thus, we conclude that all four factors weigh in favor of considering

the Pennsylvania State Department of Health an indispensable party to

Appellant’s petition. Appellant’s failure to join the Pennsylvania State

Department of Health resulted in a lack of subject matter jurisdiction and is,

therefore, fatal to his petition. We affirm on this basis. See Commonwealth

v. Burns, 988 A.2d 684, 690 n.6 (Pa. Super. 2009) (“[A]n appellate court

may affirm the lower court on any basis, even one not considered or

presented in the court below.”)

      Order affirmed.




                                    -4-
J-S05026-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2017




                          -5-
