J-A01029-17

                           2017 PA Super 105

L.J.C.                             :   IN THE SUPERIOR COURT OF
                                   :        PENNSYLVANIA
          v.                       :
                                   :
A.W.                               :
                                   :
          v.                       :
                                   :
C.R.                               :
                                   :
               Appellant           :
                                   :
                                   :
D.M.W.                             :
                                   :
          v.                       :
                                   :
A.I.W.                             :
                                   :
          v.                       :
                                   :
C.R.                               :
                                   :
               Appellant           :
                                   :
                                   :
C.R.                               :
                                   :
               Appellant           :
                                   :
          v.                       :
                                   :
A.I.W.                             :
                                   :
                                   :
C.R.                               :
                                   :
               Appellant           :
                                   :
          v.                       :
                                   :
A.I.W.                             :   No. 1059 WDA 2016
J-A01029-17



                        Appeal from the Order June 21, 2016
                 In the Court of Common Pleas of Lawrence County
                    Civil Division at No(s): 10114 of 2013, C.A.,
                     10671 of 2012, C.A., 11060 of 2012, C.A.,
                                  11491 of 2008, C.A.


BEFORE:        BOWES, OLSON, and STRASSBURGER*, JJ.

OPINION BY OLSON, J.:                                      FILED APRIL 17, 2017

        Appellant, C.R. (“Grandfather”), appeals from the order entered June

21, 2016, in the Court of Common Pleas of Lawrence County, which denied

the relief requested in his motion for reconsideration, and directed that he

does     not    have   standing    to   seek   primary   physical   custody   of   his

grandchildren, D.W.1, a female born in September 2001, D.W.2, a male

born in October 2006, C.C., a male born in September 2009, and L.C., a

female born in March 2012 (collectively, “the Grandchildren”). After careful

review, we quash the appeal.

        Grandfather is the maternal grandfather of the Grandchildren.              The

Grandchildren’s mother, A.I.W. (“Mother”), exercises primary physical

custody of the Grandchildren, while Grandfather exercises partial physical

custody.       The father of D.W.1 and D.W.2 is D.M.W., the father of L.C. is

L.J.C., and the father of C.C. is M.C.1 Pursuant to the parties’ most recent

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We advise the trial court that M.C. is a necessary party to this custody
action, and that our Rules of Civil Procedure require the court to enter an
order joining M.C. See Pa.R.C.P. 1915.6(a)(1) (“If the court learns from the
(Footnote Continued Next Page)


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J-A01029-17



custody order, entered March 19, 2015, none of these fathers maintains an

award of physical custody.              However, the order awards Mother and

Grandfather shared legal custody of the Grandchildren, “together with the

appropriate father.” Order, 3/19/2015, at ¶ 5.

      On November 23, 2015, D.M.W., acting pro se, filed a petition for

modification of custody, in which he requested primary physical custody of

D.W.2. Shortly thereafter, on December 31, 2015, Grandfather also filed a

petition for modification of custody, in which he requested primary physical

custody of all four Grandchildren. The trial court held a pre-trial conference

on March 10, 2016. During the conference, Mother argued that Grandfather

lacked standing to seek primary physical custody of the Grandchildren. N.T.,

3/10/2016, at 6.        Grandfather argued, inter alia, that he had standing to

seek primary physical custody pursuant to 23 Pa.C.S.A. § 5324(3)(iii)(B),

because the Grandchildren were at risk due to parental abuse or neglect.

N.T., 3/10/2016, at 22-29. In order to address Grandfather’s concerns, the

court, on March 10, 2016, entered an order directing the Grandchildren’s

guardian ad litem to conduct an investigation and issue a report within

ninety days.    The order provided that the court would schedule a custody

hearing after receiving the guardian ad litem’s report.


                       _______________________
(Footnote Continued)

pleadings or any other source that a parent whose parental rights have not
been previously terminated . . . is not a party to the action, it shall order
that the person be joined as a party.”).



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J-A01029-17



       Grandfather filed a motion for reconsideration on April 6, 2016, which

the trial court granted that same day.             On May 6, 2016, Mother filed a

motion for reconsideration of the order granting Grandfather’s motion for

reconsideration. On June 21, 2016, the court entered the order complained

of on appeal, in which it denied the relief requested in Grandfather’s motion

for reconsideration, and concluded that Grandfather does not have standing

to seek primary physical custody of the Grandchildren.                 The order also

denied    the   relief   requested     in    Mother’s   motion   for   reconsideration.

Grandfather timely filed a notice of appeal on July 20, 2016.                The court

ordered Grandfather to file a concise statement of errors complained of on

appeal, and Grandfather timely complied on August 16, 2016.2

       Grandfather now raises the following issue for our review: “Whether

the trial court erred in finding that [] [G]randfather lacks standing to pursue

custody of Grandchildren[?]”                Grandfather’s Brief at 8 (unnecessary

capitalization omitted).

       Before reaching the merits of Grandfather’s issue, we initially consider

whether the June 21, 2016 order was appealable.                    “‘[S]ince we lack

jurisdiction over an unappealable order it is incumbent on us to determine,
____________________________________________


2
  Grandfather violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise
statement of errors complained of on appeal at the same time as his notice
of appeal. We have, however, accepted Grandfather’s concise statement
pursuant to In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding
that the appellant’s failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did
not warrant waiver of her claims, as there was no prejudice to any party).



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sua sponte when necessary, whether the appeal is taken from an appealable

order.’”     Gunn v. Automobile Ins. Co. of Hartford, Connecticut, 971

A.2d 505, 508 (Pa. Super. 2009), quoting Kulp v. Hrivnak, 765 A.2d 796,

798 (Pa. Super. 2000).

      It is well-settled that, “[a]n appeal lies only from a final order, unless

permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.

Super. 2013). Generally, a final order is one that disposes of all claims and

all parties.    See Pa.R.A.P. 341(b).    “[A] custody order will be considered

final and appealable only if it is both: 1) entered after the court has

completed its hearings on the merits; and 2) intended by the court to

constitute a complete resolution of the custody claims pending between the

parties.” G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996).

      Here, our review of the record confirms that the June 21, 2016 order is

not final.     At the time the trial court entered this order, the petition to

modify custody filed by D.M.W. remained pending and was unaddressed by

the court’s directive.      In addition, although the court concluded that

Grandfather could not seek primary physical custody of the Grandchildren, it

did not indicate that it was denying or dismissing Grandfather’s petition to

modify.      The court concluded that Grandfather retains the ability to seek

partial physical custody, and it is not clear if Grandfather intends to pursue

an expanded award of partial physical custody in lieu of primary physical

custody. Thus, we conclude that the court has not completed its hearings on




                                        -5-
J-A01029-17



the merits, and that the June 21, 2016 order was not intended to completely

resolve the custody claims pending between the parties.3

       Additionally, we observe that the June 21, 2016 order is not

appealable pursuant to the collateral order doctrine. See Pa.R.A.P. 313(a)

(providing that an appeal may be taken as of right from a collateral order of

a lower court). “A collateral order is an order separable from and collateral

to the main cause of action where the right involved is too important to be

denied review and the question presented is such that if review is postponed

until final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P.

313(b).    Here, the challenged order fails to meet the third prong of the

collateral order doctrine, as Grandfather’s claim will not be irreparably lost if

we postpone review of this matter until the entry of a final order. Since the

trial court did not dismiss Grandfather’s petition to modify and, furthermore,

concluded that he retained the right to seek partial physical custody,

Grandfather will be able to lodge an appeal once a final custody order is

____________________________________________


3
   Among other claims, Grandfather argues that the trial court erred or
abused its discretion in failing to consider the mechanism set in place for the
guardian ad litem to investigate the existence of abuse or neglect on
Mother’s part. We reject this contention for two reasons. First, this claim is
largely irrelevant to the issue of whether Grandfather challenges a final
order in the context of this appeal. Instead, this claim can be raised after a
trial when a final order addressing all claims against all parties has been
entered. In addition, our review of the certified record shows that, given the
extensive history of litigation between the parties in this case, the trial court
appears to be quite familiar with the facts, the parties, and the claims raised
in this matter.



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entered. At that time, he may challenge the trial court’s determination that

he lacks standing to pursue primary physical custody, as well as any other

rulings he deems to be in error.

       Accordingly, we hold that the June 21, 2016 order is not a final order,

nor is it appealable as a collateral order.4 As we are without jurisdiction to

address this order, Grandfather’s appeal must be quashed.

       Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




____________________________________________


4
  We observe also that the order is not an interlocutory order appealable as
of right, pursuant to Pa.R.A.P. 311, and that Grandfather did not attempt to
bring this appeal before this Court as an interlocutory appeal by permission
pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S.A. § 702.



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