J-S32034-19

                                 2019 PA Super 211


 J.P.                                      :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 J.S.                                      :
                                           :
                     Appellant             :   No. 460 EDA 2019

              Appeal from the Order Entered January 2, 2019
    In the Court of Common Pleas of Philadelphia County Family Court at
                            No(s): 0C121184


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

OPINION BY MURRAY, J.:                                  FILED JULY 09, 2019

        J.S. (Mother), in her words, “appeals to the Superior Court of

Pennsylvania from the Custody Order entered in this matter on January 2,

2019, motion to reconsider denied with amendments January 29, 2019.”

Mother’s Notice of Appeal, 2/14/19. After careful review of the convoluted

procedural history preceding this appeal, as well as prevailing legal authority,

we quash.

        Instantly, Mother challenges the trial court’s award of primary physical

custody of the parties’ eight-year old daughter (Child) to J.P. (Father), and

the court’s attendant decision permitting Father to relocate with Child from

Philadelphia to Montgomery County.

        Mother filed a timely pro se petition for reconsideration on January 7,

2019, in which Mother alleged that the trial court erred in the “evaluation of

the evidence presented at the hearing. Mother requested that [the trial court]
J-S32034-19



restore shared physical custody and order that the Minor Child continue to

attend school in Philadelphia.” Trial Court Opinion, 3/13/19, at 5.

       Mother subsequently retained counsel, who a week later, on January 14,

2019, entered her appearance and filed a motion to modify custody on

Mother’s behalf.1      On January 29, 2019, the trial court entered an order

denying    reconsideration,      and    the    corresponding   docket   entry   reads:

“RECONSIDERATION DENIED. NOTICE GIVEN UNDER RULE 236. MOTHER’S

PETITION FOR RECONSIDERATION DENIED WITHOUT A HEARING.                            SEE

ORDER FOR DETAILS.” The trial court’s order denying reconsideration reads,

in part:

       MOTHER SEEKS RECONSIDERATION OF OUR ORDER OF JANUARY
       2, 2019 GRANTING [FATHER’S] REQUEST TO RELOCAT[E] AND
       GRANTING FATHER PRIMARY PHYSICAL CUSTODY.        THIS
       PETITION FOR RECONSIDERATION WAS FILED WITHOUT THE
       ASSISTANCE OF COUNSEL, WHICH IS MOTHER’S PEROGATIVE.

       UPON EXAMINATION OF MOTHER’S REASONS FOR FILING THE
       PETITION AND CONSIDERATION OF MOTHER’S ARGUMENTS FOR
       RECONSIDERATION, WE DENY, WITHOUT A HEARING, THE
       PETITION, BUT AMEND OUR OPINION TO CORRECT AND
       CLARIFY THE RECORD FOR THE FOLLOWING REASONS:
       ...

Order, 1/29/19, at 1 (emphasis added).




____________________________________________


1 Father appeared pro se before the trial court and continues to represent
himself on appeal; Father has articulated, inter alia, that he does “not have
sufficient funds to hire counsel to file a brief on my behalf. Please do not
consider my failure to file a [counseled] brief as any concession or agreement
that the appeal has any merit.” Father’s “Letter Brief” at 1.

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      The trial court order then listed four paragraphs explaining: 1)

regardless of Mother’s living situation, “both parents perform their parental

duties and attend to the daily needs of minor child”; 2) the court’s choice of

school enrollment “better suits” Child’s “needs at this time”; 3) the court

erroneously found that Mother missed Child’s dance recital when “it was

Father who missed a dance recital,” but “we nevertheless conclude that Father

is more likely to ensure the minor child will attend extracurricular activities

that she is involved in”; and 4) despite Father working two jobs, Child’s “best

interests would be served by granting primary custody to Father during the

school year.” Id. at 1-2.

      The order also specified that it “did not resolve Mother’s petition to

modify custody filed on January 14, 2019, which is scheduled for a custody

master’s event on February 7, 2019, at 2:00 P.M., which will proceed as

scheduled.” Id. at 2. The docket reflects “EVENT CANCELLED” on February

7, 2019.   On February 14, 2019, Mother filed this appeal.     The trial court

issued an opinion on March 13, 2019.

      We must address the procedural posture leading up to this appeal. The

January 2, 2019 order awarding primary physical custody to Father and

permitting him to relocate from Philadelphia to Montgomery County was a final

order because a custody order is final “after the trial court has completed its

hearings on the merits and the resultant order resolves the pending custody

claims between the parties.” G.B. v. M.M.B., 670 A.2d 714, 715 (Pa. Super.

1996) (en banc). Judge Beck, writing for the en banc panel, explained:

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J-S32034-19


      Based on the case law . . . and the important policy concerns
      implicated in custody proceedings, we hold that 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. We conclude that
      this holding will protect the child from the protraction of custody
      litigation through repetitive appeals while still allowing prompt and
      comprehensive review of custody determinations. It will also
      support judicial economy and efficiency and uphold the integrity
      of the trial court’s process in deciding custody matters. On the
      one hand, to permit piecemeal appeals subjects the child to the
      uncertainties of ongoing litigation. A custody proceeding, whether
      on the trial or the appellate level, threatens a child’s stability. On
      the other hand, a custody decision once finally made must be
      subject to review. Drawing a bright line by which finality may be
      determined will encourage judicial economy and efficiency by
      making it clear both to litigants and to trial courts when the
      appellate process may properly be invoked. Our holding also
      serves to uphold the integrity of the trial process by not interfering
      with the trial court’s efforts to craft a final decision and by not
      permitting premature challenges to those efforts. In striking a
      balance between postponing and granting an appeal, we have
      attempted to serve primarily the best interests of the child.

Id. at 720–21 (footnotes omitted).

      The finality of the January 2, 2019 order is reinforced by Mother’s

January 7, 2019 pro se petition for reconsideration and her January 14, 2019

counseled petition to modify custody. Accordingly, Mother’s appeal — filed on

February 14, 2019 — was untimely as to the January 2, 2019 order because

it was not taken “within 30 days after the entry of the order from which the

appeal was taken.” Pa.R.A.P. 903(a).

      With   regard    to   the   January   29,   2019    order,   docketed    as

“RECONSIDERATION DENIED,” Mother’s appeal was timely.                However, a

denial from a motion for reconsideration is not final or otherwise appealable.



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J-S32034-19



See Valentine v. Wroten, 580 A.2d 757 (Pa. Super. 1990). In that case,

we stated:

      Our court has repeatedly held that appeals filed from orders
      denying reconsideration are improper and untimely. The appeal
      in this case should have been filed within thirty days from the
      [original custody] order or, reconsideration should have expressly
      been granted within thirty days of that order. Since the untimely
      filing of the appeal goes to the jurisdiction of this court, we have
      no choice but to quash the appeal.

Id. at 758 (citations omitted).

      More recently, this Court explained the proper procedure by which

Mother in this case could have preserved her appeal:

      Nothing in our rules precludes Mother from filing both a motion
      for reconsideration and a notice of appeal. It often is prudent
      for a litigant to file both; if the trial court does not grant
      the motion for reconsideration before the expiration of the
      thirty days in which the litigant can file a notice of appeal,
      the litigant will lose the right to appeal. See Pa.R.A.P. 1701;
      Orfield v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012).

M.O. v. J.T.R., 85 A.3d 1058, 1061 n.1 (Pa. Super. 2014) (emphasis and

underline added).

      Similarly, in Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super.

2000), we stated:

      [A]s the comment to Pa.R.A.P. 1701 explains, although a party
      may petition the court for reconsideration, the
      simultaneous filing of a notice of appeal is necessary to
      preserve appellate rights in the event that either the trial
      court fails to grant the petition expressly within 30 days,
      or it denies the petition. Moreover, we have consistently held
      that an appeal from an order denying reconsideration is improper
      and untimely.

Id. at 1254 (citations omitted) (emphasis added).

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J-S32034-19


      As referenced above, Rule 1701 “codified the well-established principle

regarding the inherent authority of the trial court, and clarified the fact that a

motion for reconsideration does not act as a stay of the appeal period.” Moore

v. Moore, 634 A.2d 163, 167 (Pa. 1993). The Rule states:

      Authority of a trial court or agency after appeal. After an
      appeal is taken or review of a quasijudicial order is sought, the
      trial court or other government unit may:

      (1)   Take such action as may be necessary to preserve the status
            quo, correct formal errors in papers relating to the matter,
            cause the record to be transcribed, approved, filed and
            transmitted, grant leave to appeal in forma pauperis, grant
            supersedeas, and take other action permitted or required by
            these rules or otherwise ancillary to the appeal or petition
            for review proceeding.

      (2)   Enforce any order entered in the matter, unless the effect
            of the order has been superseded as prescribed in this
            chapter.

      (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 within 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 quasijudicial order with respect to such
      order, or within any shorter time provided or prescribed by law for
      the granting of reconsideration.

      A timely order granting reconsideration under this paragraph shall
      render inoperative any such notice of appeal or petition for review
      of a quasijudicial order theretofore or thereafter filed or docketed
      with respect to the prior order. The petitioning party shall and any
      party may file a praecipe with the prothonotary of any court in
      which such an inoperative notice or petition is filed or docketed

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J-S32034-19


      and the prothonotary shall note on the docket that such notice or
      petition has been stricken under this rule. Where a timely order of
      reconsideration is entered under this paragraph, the time for filing
      a notice of appeal or petition for review begins to run anew after
      the entry of the decision on reconsideration, whether or not that
      decision amounts to a reaffirmation of the prior determination of
      the trial court or other government unit.

Pa.R.A.P. 1701(b) (emphasis added).

      Consistent with the procedural history and legal authority set forth

above, we conclude that Mother’s appeal filed on February 14, 2019 was

untimely and must be quashed.       We quashed an appeal in a similar case,

stating:

      [Appellant] had thirty days from the entry of the order or until July
      2, 1997, to file an appeal, unless the trial court expressly vacated
      the order of May 30, 1997, and granted reconsideration. While
      the trial court did schedule a hearing on the motion for
      reconsideration, this was insufficient to toll the appeal period.
      Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912 (1989) (in
      order to extend time for taking appeal, trial court must vacate
      order and grant reconsideration; the mere scheduling of a hearing
      on the matter is insufficient). Since the order was not vacated
      and no appeal was filed within 30 days of the entry of the final,
      appealable order of equitable distribution, this appeal must be
      quashed as untimely. Furthermore, an appeal will not lie from the
      denial of a motion for reconsideration. Valentine v. Wroten, 580
      A.2d 757, 397 Pa.Super. 526 (1990).

Karschner v. Karschner, 703 A.2d 61, 62 (Pa. Super. 1997) (emphasis in

original).

      Here, Mother had 30 days from the entry of the January 2, 2019 order

or until February 1, 2019 to file an appeal, unless the trial court expressly

vacated the January 2, 2019 order and granted reconsideration. Although the

trial court stated in its January 29, 2019 order denying reconsideration that it

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J-S32034-19


was amending “our opinion . . . to correct and clarify the record,” we find that

action “insufficient to toll the appeal period,” because, inter alia, “an appeal

will not lie from the denial of a motion for reconsideration.”      See Order,

1/29/19, at 1.

      Further, the docket simply indicates “RECONSIDERATION DENIED,” with

no indication, as required by Rule 1701(b)(3)(ii), that reconsideration was

“expressly granted” to toll the appeal period.      See Estate of Haiko v.

McGinley, 799 A.2d 155 (Pa. Super. 2002) (trial court’s order granting

reconsideration must state expressly and unequivocally that reconsideration

is granted); see also Schoff v. Richter, 562 A.2d 912 (Pa. Super. 1989) (an

order granting reconsideration will be effective only if it is made and entered

on the docket); Cheathem v. Temple University Hospital, 743 A.2d 518,

520 (Pa. Super. 1999) (holding that a motion for reconsideration does not toll

the appeal period unless the trial court expressly grants reconsideration within

30 days of the appealable order).

      The above notwithstanding, we recognize that the trial court on January

29, 2019, in its own words “den[ied], without a hearing, the petition, but

amend[ed] our opinion to correct and clarify the record for the following

reasons . . .” Order, 1/29/19, at 1 (emphasis added). The trial court stated

that the changes “did not have a material impact on the outcome of our

relocation and custody analysis . . . so we did not disturb the custodial




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J-S32034-19


arrangements from our January 2, 2019 order.” Trial Court Opinion, 3/13/19,

at 5.

        As indicated in Pa.R.A.P. 1701(b)(1), a trial court may take action

necessary to preserve the status quo and correct formal errors “in papers

relating to the matter.” Although the trial court in this case preserved the

status quo and made corrections prior to Mother filing her appeal on February

14, 2019, it was within its authority to do so. We have addressed “a court’s

inherent authority to correct mistakes.” Manufacturers & Traders Tr. Co.

v. Greenville Gastroenterology, SC, 108 A.3d 913 (Pa. Super. 2015). We

explained:

        In addition to its equitable power to reconsider an otherwise final
        order after 30 days, a court has inherent power “to amend its
        records, to correct mistakes of the clerk or other officer of the
        court, inadvertencies of counsel, or supply defects or omissions in
        the record” at any time. Manack v. Sandlin, 812 A.2d 676, 680
        (Pa. Super. 2002); see Pa.R.A.P. 1701(b)(1) (recognizing a trial
        court’s inherent authority to “correct formal errors” in the record
        notwithstanding a pending appeal).          However, “[a] major
        substantive change, such as the total withdrawal of an order
        relative to a motion of record does not constitute a corrective
        order within the inherent powers of the trial court or the court's
        statutory authority.” Manack, 812 A.2d at 682. “Absent a specific
        rule or statute, the only exception is to correct obvious technical
        mistakes (e.g., wrong dates) but no substantive changes can be
        made.” Ettelman v. Cmwlth. Dep't of Transp., 92 A.3d 1259,
        1262 (Pa. Cmwlth. 2014) (emphasis added). The ability to correct
        orders is limited to errors that are patent or obvious on the face
        of the record. ISN Bank, 83 A.3d at 172–73.

Manufacturers & Traders Tr. Co., 108 A.3d at 921.




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J-S32034-19


      Finally, we recognize that this decision does not put Mother out of court.

“[P]etitions for modification of custody orders may be entertained at any time

without regard to whether there have been any material changes which would

warrant a reevaluation.” Martin v. Martin, 562 A.2d 1389, 1390 (Pa. Super.

1989) (citation omitted). Our Supreme Court has provided “a directive that

petitions for modification of custody orders may be filed at any time, and in

all such cases the court hearing the petition must consider the best interests

of the child or children.” Id. at 1391.

      Consistent with the foregoing, we quash Mother’s appeal.

      Appeal quashed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/19




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