J-A05014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.L.S., M.D.                             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
              v.                         :
                                         :
B.T.M.                                   :
                                         :
                    Appellee             :        No. 1036 WDA 2016

                     Appeal from the Order June 17, 2016
            In the Court of Common Pleas of Westmoreland County
                    Civil Division at No(s): 158 of 2015-D


BEFORE:      GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED APRIL 21, 2017

        Appellant, R.L.S., M.D. (“Father”), appeals from the order entered in

the Westmoreland County Court of Common Pleas, which dismissed his

custody complaint and granted sole legal and physical custody of A.R.S.

(“Child”) to B.T.M. (“Sister”). After careful review, we vacate and remand

for dismissal of Sister’s counterclaim and reinstatement of the court’s

February 13, 2015 temporary custody order.

        The relevant facts and procedural history of this case are as follows.

Child was born in May 1999, to Mother and Father, who were married at the

time.    Mother and Father subsequently divorced, and have had various

different custody arrangements over the years.        At some point, Child’s

relationship with Father deteriorated; and Child began to experience

emotional trauma when she interacted with Father. As a result, the court
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issued a custody order on October 1, 2013, which granted Mother sole legal

and primary physical custody.     Pursuant to the October 1, 2013 custody

order, Father had partial physical custody of Child, as agreed to between

Child and Father. Father and Child were also to engage in supervised instant

messaging session for one year to achieve reconciliation between Child and

Father. All attempts at reconciliation between Child and Father failed, and

Father has not had contact with Child in years.

      In 2014, doctors diagnosed Mother with cancer, and Mother ultimately

died of her illness on January 29, 2015.     Sister immediately assumed all

parental responsibilities with respect to Child. On February 1, 2015, Father

filed a custody complaint for sole legal and physical custody of Child. Sister

filed a counterclaim on February 10, 2015, which sought primary legal and

physical custody of Child. After a hearing on February 11, 2015, the court

granted Sister in loco parentis status and awarded Sister temporary sole

legal and physical custody of Child on February 13, 2015.          The court

scheduled the custody trial to begin on May 20, 2015.

      On February 17, 2015, Father filed an answer and new matter to

Sister’s counterclaim, which challenged the court’s grant of in loco parentis

status to Sister and asked the court to dismiss Sister’s counterclaim for

custody.   On April 8, 2015, the court held a status conference, where the

court rescheduled the custody trial to begin on July 28, 2015, to allow the

parties to file briefs on the standing issue.     Father then filed multiple


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motions, which resulted in a hearing on May 21, 2015. At the May 21, 2015

hearing, the court: (1) rescheduled the custody trial for August 28, 2015 due

to   Father’s   work     obligations;    (2)   granted   Father’s   request   for   an

enlargement of time to file his brief; (3) ordered Sister to compile a list of

dates she spent with Child from March 2013 onward; (4) approved Child’s

move to West Virginia with Sister with the consent of Father; (5) denied

Father’s request to remove the guardian ad litem; and (6) ordered all parties

to undergo custody evaluations with Dr. O’Hara in a timely fashion. Father

filed his brief concerning the standing issue on June 10, 2015, and Sister

filed her reply on June 29, 2015.

       On July 17, 2015, the parties appeared for a hearing after Dr. O’Hara

raised concerns about his ability to perform the custody evaluations.

Specifically, Dr. O’Hara informed the court Father had threatened to file a

HIPAA1 complaint against him due to Father’s concerns with the setting of

the custody evaluation.         After a discussion with all parties, Dr. O’Hara

agreed to continue with the case and finish performance of the custody

evaluations. The court kept the scheduled trial date of August 28, 2015, and

ordered Father to cooperate with all of Dr. O’Hara’s requests. On July 20,

____________________________________________


1
  HIPAA is the Health Insurance Portability and Accountability Act, at 42
U.S.C.A. § 1320d-1 et seq. “HIPAA ‘provides for monetary fines and various
terms of imprisonment for the wrongful disclosure of individually identifiable
health information.’” Lykes v. Yates, 77 A.3d 27, 31 (Pa.Super. 2013)
(citation omitted).



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2015, Father filed a motion to remove Dr. O’Hara as the custody evaluator.

The court held a hearing on the motion on August 20, 2015, where Father

informed the court that he had filed a HIPAA complaint against Dr. O’Hara.

Dr. O’Hara testified at     the   hearing that   he   believed he    could   be

professionally neutral, but personally wanted to withdraw as custody

evaluator. Sister testified that she did not consent to removal of Dr. O’Hara

as the custody evaluator because she and Child were already halfway

through the evaluation process.      The court ultimately granted Father’s

request to remove Dr. O’Hara as the evaluator and continued the custody

trial generally to allow the parties time to agree to a new custody evaluator.

      At a hearing on October 8, 2015 to address Father’s motion for

psychological evaluation of Child, the court addressed the status of the

custody evaluations. The court learned the parties had yet to choose a new

custody evaluator.   Father also informed the court that he did not believe

custody evaluations were necessary until the court resolved the issue of

Sister’s standing.   The court informed Father it could not resolve the

standing issue without completion of the custody evaluations. On October

21, 2015, the court formally removed Dr. O’Hara as the custody evaluator

and appointed Dr. Saar to perform the custody evaluations of the parties.

On November 23, 2015, Father filed a motion for summary judgment, which

again challenged Sister’s standing to pursue custody of Child. Sister filed a

response in opposition on December 14, 2015. On December 17, 2015, the


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court ordered Father to file all necessary releases to allow Dr. Saar to

perform the custody evaluations and stated further delay of the custody

evaluations would result in sanctions.

      On January 6, 2016, the court held argument on Father’s motion for

summary judgment.      At the conclusion of the hearing, the court took the

matter under advisement; however, the court also informed the parties that

it still expected full participation in the custody evaluations with Dr. Saar. In

response, Father again told the court he did not believe the custody

evaluations were necessary due to the issue of Sister’s standing. On March

4, 2016, the court denied Father’s motion for summary judgment based on

its conclusion that the issue of Sister’s standing was not ripe for

consideration. The court noted Father’s failure to cooperate and participate

in the custody evaluations and stated the insight provided by the custody

evaluations was necessary to determine the standing issue. The March 4,

2016 order informed the parties that failure to complete the custody

evaluations within ninety days would result in dismissal of the custody

complaint pursuant to Pa.R.C.P. 1915.4(b).

      On June 17, 2016, the court held a hearing at Father’s request, where

Father admitted his failure to complete the custody evaluations and asked

the court to enter an appealable order enforcing the March 4, 2016 order.

The court then dismissed Father’s custody complaint, granted Sister’s

counterclaim, and entered a final custody order, which granted Sister sole


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legal and physical custody of Child. In its disposition, the court noted that it

was unable to address the custody factors pursuant to 23 Pa.C.S.A. §

5328(a) due to Father’s failure to complete the custody evaluation. Father

filed a notice of appeal and concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) on July 18, 2016.           Because

Father’s Rule 1925(a)(2)(i) statement raised over eighty issues, the court

ordered Father to file an amended Rule 1925(a)(2)(i) statement on July 25,

2016. Father complied on August 5, 2016.

      Father raises the following issue for our review:

         [WHETHER] THE [TRIAL] COURT ERRED AS A MATTER OF
         LAW AND ABUSED ITS DISCRETION IN DISMISSING
         FATHER’S COMPLAINT AND AWARDING PHYSICAL AND
         LEGAL CUSTODY TO [SISTER?]

(Father’s Brief at 8).

      Father argues he diligently tried to move the case forward toward the

custody trial and a final custody order. Father submits the court’s failure to

schedule hearings on Father’s numerous motions and emergency petitions

thwarted his efforts to proceed with the case. Father maintains Dr. O’Hara’s

actions and the court’s decision to continue the custody trial were

responsible for the delay in the case. Father further challenges the court’s

award of sole legal and physical custody of Child to Sister. Father asserts

dismissal of Father’s complaint pursuant to Rule 1915.4(b) required

dismissal of Sister’s counterclaim, and Sister lacked standing to pursue

custody of Child. Father finally claims the court erred when it entered a final

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custody order without the completion of a full best interest of the child

analysis.     Father concludes the court improperly dismissed his custody

complaint and granted Sister’s counterclaim through entry of a final custody

order, and this Court should vacate and remand for a full custody trial. We

disagree with Father’s assertion that the court improperly dismissed his

custody complaint, but we are constrained to agree that the court

improperly granted Sister’s counterclaim through entry of a final custody

order.

      “The correctness of [a] trial court’s application of a Rule of Civil

Procedure raises a pure question of law. As with all questions of law, our

standard of review is de novo and our scope of review is plenary.” Harrell

v. Pecynski, 11 A.3d 1000, 1003 (Pa.Super. 2011) (internal citations

omitted).      Pennsylvania Rule of Civil Procedure 1915.4(b) provides in

relevant part as follows:

            Rule 1915.4. Prompt Disposition of Custody Cases

                                     *    *    *

            (b) Listing Trials Before the Court. Depending upon
            the procedure in the judicial district, within 180 days of the
            filing of the complaint either the court shall automatically
            enter an order scheduling a trial before a judge or a party
            shall file a praecipe, motion or request for trial, except as
            otherwise provided in this subdivision. If it is not the
            practice of the court to automatically schedule trials and
            neither party files a praecipe, motion or request for trial
            within 180 days of filing of the pleading, the court shall sua
            sponte or on motion of a party, dismiss the matter unless
            a party has been granted an extension for good cause
            shown, or the court finds that dismissal is not in the best

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         interests of the child. The extension shall not exceed 60
         days beyond the 180 day limit. A further reasonable
         extension may be granted by the court upon agreement of
         the parties or when the court finds, on the record,
         compelling circumstances for further reasonable extension.
         If an extension is granted, and thereafter, neither party
         files a praecipe, motion or request for trial within the time
         period allowed by the extension, the court shall, sua
         sponte or on the motion of a party, dismiss the matter
         unless the court finds the dismissal is not in the best
         interests of the child. A motion to dismiss, pursuant to
         this rule, shall be filed and served upon the opposing
         party. The opposing party shall have 20 days from the
         date of service to file an objection. If no objection is filed,
         the court shall dismiss the case. Prior to a sua sponte
         dismissal, the court shall notify the parties of an intent to
         dismiss the case unless an objection is filed within 20 days
         of the date of the notice.

Pa.R.C.P. 1915.4(b).    Rule 1915.4(b) “unambiguously requires that a trial

court dismiss an action if trial has not been scheduled within 180 days of

filing of the pleading or if the moving party has not been granted an

extension for good cause shown.” Harrell, supra at 1005.

      Instantly, Father filed his custody petition on February 1, 2015, and

Sister filed a counterclaim for sole legal and physical custody on February

10, 2015. After a hearing, the court granted Sister in loco parentis status

and temporarily awarded Sister sole legal and physical custody of Child. The

court scheduled the custody trial for May 20, 2015; however, in April 2015,

the court rescheduled trial for July 28, 2015, after Father raised a challenge

to Sister’s standing, which required briefing by the parties.       On May 21,

2015, the court again rescheduled trial for August 28, 2015, after Father

informed the court that work obligations interfered with the July 2015 trial

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date.    That same day, the court ordered the parties to undergo custody

evaluations, which were necessary for disposition of Father’s challenge to

Sister’s standing and for determination of the best interests of Child. The

court order required completion of the custody evaluations in time for the

August 28, 2015 custody trial.

        In July 2015, issues arose between Father and the custody evaluator,

Dr. O’Hara, after Father accused Dr. O’Hara of HIPAA violations.       At a

hearing on July 17, 2015, the parties discussed the issue and Dr. O’Hara

agreed to finish performance of the custody evaluations. The court kept the

scheduled trial date of August 28, 2015, and ordered Father to cooperate

with all of Dr. O’Hara’s requests.   Nevertheless, Father filed a motion to

remove Dr. O’Hara as the custody evaluator on July 20, 2015. On August

20, 2015, the court granted Father’s request for removal when the court

learned Father had filed a HIPAA complaint against Dr. O’Hara.      Because

custody evaluations were necessary for the court’s disposition of the case,

the court had no choice but to continue the custody trial generally for

completion of the custody evaluations.

        On October 21, 2015, the court appointed Dr. Saar as the custody

evaluator by agreement of the parties. The court again ordered the parties

to complete the custody evaluations in a timely fashion.       Nevertheless,

Father failed to comply with the custody evaluation order, which prevented

any progress toward scheduling of the custody trial.      On November 23,


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2015, Father filed a motion for summary judgment, which again raised a

challenge to Sister’s standing even though Father had made no progress

with his custody evaluation. Despite Father’s motion, the court repeatedly

informed Father he must comply with the custody evaluations to move the

case forward to trial.    Father, however, remained uncooperative and

prevented any progress toward scheduling of the custody trial due to his

assertion that the custody evaluations were unnecessary.

     On March 4, 2016, the court denied Father’s motion for summary

judgment based on its determination that it could not decide the standing

issue without completion of the custody evaluations.       The court’s order

directed Father to complete the custody evaluations within ninety (90) days

or face dismissal of the custody complaint pursuant to Rule 1915.4(b). After

the court’s entry of the March 4, 2016, Father failed to make any progress

with his custody evaluation and did not ask the court for an extension to

complete the custody evaluations.     Instead, Father requested a hearing,

where he admitted his failure to comply with the March 4, 2016 order and

asked the court to enter an appealable order.     The court then dismissed

Father’s complaint and granted Sister’s counterclaim through the entry of a

final custody order, which gave Sister sole physical and legal custody of

Child on June 17, 2016.

     Due to Father’s actions, five hundred and two (502) days passed

between the filing of his custody complaint and the court’s dismissal of the


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complaint. During this time, the court allowed the case to continue in hopes

of resolving the custody dispute to achieve stability for Child.                  Father,

however, thwarted all of the court’s attempts to achieve full disposition of

the custody issues. Significantly, at no time after August 20, 2015, did the

parties request a date for the custody trial, so the case remained generally

continued due to Father’s ongoing noncompliance with the court-ordered

custody evaluations. Father’s lack of compliance with the custody evaluation

made full disposition of the custody issues impossible and effectively stalled

the case. Thus, in light of Father’s continuous dilatory conduct and lack of

request for an extension, the court was authorized to dismiss Father’s

custody complaint pursuant to Rule 1915.4(b).              See Pa.R.C.P. 1915.4(b).

Nevertheless,     the    court    erred    when    it   effectively    granted    Sister’s

counterclaim through entry of a final custody order.                  Instead, the court

should    have    dismissed the       entire   custody matter,        including   Sister’s

counterclaim. See Harrell, supra. Thus, we are constrained to vacate and

remand for complete dismissal of the custody action and reinstatement of

the court’s February 13, 2015 interim custody order.2                   Accordingly, we

vacate and remand with instructions.

       Order vacated, case remanded with instructions.                    Jurisdiction is

relinquished.
____________________________________________


2
  The February 13, 2015 interim custody order gave Sister temporary sole
legal and physical custody of Child, who is now almost eighteen years old.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




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