J-S08030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    M.A.M.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                v.                             :
                                               :
    K.L.M.                                     :
                                               :
                       Appellant               :
                                               :
                v.                             :
                                               :
    T.I.C.                                     :      No. 1579 WDA 2019

               Appeal from the Order Entered September 24, 2019
         In the Court of Common Pleas of Crawford County Civil Division
                             at No(s): FD 2019-99


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                             FILED MARCH 2, 2020

        K.L.M. (Mother) appeals from the order entered in the Crawford County

Court of Common Pleas permitting T.I.C. (Grandmother) to intervene in this

child custody matter. As the court has yet to resolve the underlying issue of

custody, we quash this appeal as improperly taken from an interlocutory

order.

        Mother and M.A.M. (Father) have two children together: B.M., now

approximately three or four years old, and K.M., approximately one or two

years old.1 According to Mother, Father “has been in and out of jail” for most

of the children’s lives; additionally, Mother had a protection from abuse order


____________________________________________


1   Father’s complaint for custody stated he and Mother were married.
J-S08030-20


against Father. N.T. Hearing on Petition to Intervene, 9/24/19, at 12, 22. On

March 21, 2019, Father, who was incarcerated at S.C.I. Forest, filed a pro se

complaint for visitation with both children.

       Following mediation and a recommendation by the child custody

mediator, the trial court entered an order on June 17, 2019, granting Mother

sole legal and physical custody.2 The order further directed Mother retained

discretion to allow Father contact with the children.

       On July 3, 2019, Father filed a request for a hearing de novo. That same

day, Grandmother — who is Father’s mother — filed a petition under 23

Pa.C.S. § 5325(2)3 to intervene in this custody matter, seeking partial physical

custody of the children.4        The trial court scheduled the de novo hearing,

requested by Father, for November 12, 2019.

       Meanwhile, on September 24, 2019, the trial court held a hearing on



____________________________________________


2 In support, the court found Father was convicted of terroristic threats in
2011, as well as driving under the influence in 2012, 2017, 2018. The court
noted these were enumerated offenses, under 23 Pa.C.S. § 5329
(“Consideration of criminal conviction”), which required the court to determine
whether Father did “not pose a threat of harm to the child before making any
order of custody.” See 23 Pa.C.S. § 5329; Order, 6/17/19.

3 See 23 Pa.C.S. § 5325(2)(i)-(ii) (grandparents may file action for partial
physical custody or supervised physical custody where: relationship with child
began either with consent of a parent or under court order; parents have
commenced custody proceeding; and parents do not agree as to whether
grandparents should have custody).

4 Father and Grandmother are represented by the same attorney. Mother is
also represented by counsel.

                                           -2-
J-S08030-20


Grandmother’s petition to intervene and granted the petition. Pertinently, at

the hearing, the trial court and Father and Grandmother’s counsel referred to

the future, scheduled de novo hearing. N.T. at 26. Mother filed a notice of

appeal, along with a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2).

     Preliminarily, we note:

          Under Pennsylvania law, an appeal may be taken from:
          (1) a final order or an order certified by the trial court as
          a final order (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, 1311, 42 Pa.C.S.A. §
          702(b)); (4) or a collateral order (Pa.R.A.P. 313). The
          question of the appealability of an order goes directly to
          the jurisdiction of the Court asked to review the order.

     A final order is any order that disposes of all claims and all parties,
     is expressly defined as a final order by statute, or is entered as a
     final order pursuant to the trial court’s determination. Pa.R.A.P.
     341(b)(1)-(3). . . .

                                  *    *    *

     [“A] custody order is 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 complete
     resolution of the custody claims pending between the parties.” . . .

Beltran v. Piersody, 748 A.2d 715, 717 (Pa. 2000) (some citations omitted).

     Initially, this Court issued a per curiam order directing Mother to show

cause why this appeal should not be quashed as taken from an interlocutory

and unappealable order. Order, 10/31/19. Mother responded that the order,

allowing Grandmother to intervene, was an appealable collateral order under

Pa.R.A.P. 313. That rule provides:

                                      -3-
J-S08030-20


           (a) General rule. An appeal may be taken as of right from
      a collateral order of an administrative agency or lower court.

           (b) Definition. 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(a)-(b).       Mother averred: (1) the question of whether

Grandmother should be permitted to intervene was collateral to the main issue

of child custody; (2) the court’s order impacted “the number of parties who

will participate in the action;” and (3) Mother’s claim will be irreparably lost if

review is postponed. Mother’s Response to Rule to Show Cause, 11/6/19, at

1-2. With respect to this last point, Mother contended Grandmother was “not

able to meet the elements required for standing [to intervene] and that she

has no existing relationship with the children, but pending custody litigation

and a subsequent appeal[,] Grandmother would potentially be afforded the

opportunity to initiate a relationship which would then make [Mother’s] point

moot.” Id. at 2. Mother also asserted that if this appeal is quashed, she “will

be subjected to extensive litigation involving [Grandmother], including a

custody mediation, a custody trial and second appeal on the exact issue she

now seeks to raise.” Id. This Court discharged our rule to show cause, but

advised the parties the issue may be revisited by the merits panel.

      Mother presents two issues for our review:

      1. Whether the Trial Court erred in granting standing to
      [G]randmother to Intervene in the custody proceedings pursuant
      to Pa.C.S.A. §5325(2).

                                       -4-
J-S08030-20



      2. Whether the Trial Court erred in determining that the lack of a
      prior relationship between the grandparent and child was not
      relevant to the issue of Standing in . . . Grandmother’s Petition to
      Intervene in Custody Proceedings when determining whether the
      requirements of 23 Pa.C.S.A. § 5325(2) were met.

Mother’s Brief at 6.

      Upon careful review of the relevant law and Mother’s response to this

Court’s rule to show cause, we conclude the trial court’s order, allowing

Grandmother to intervene, is an interlocutory order and not appealable.

Mother does not dispute the order was not a final order under Pa.R.A.P. 341.

We disagree with her claim the order was an appealable collateral order under

Pa.R.A.P. 313. Mother’s contention that her claim would be irreparably lost is

speculative — while she is concerned Grandmother may form a relationship

with the children, such a scenario would not result from the September 24,

2019, order, which merely permitted Grandmother to participate in the

custody litigation. Instead, any future interaction between Grandmother and

the children would depend on a hypothetical final custody ruling granting

Grandmother partial custody or visitation; however, as stated above, the court

and the parties have yet to proceed to a de novo hearing. Furthermore, while

we acknowledge the costs and time of litigation may present a hardship on

any party, we reject Mother’s reliance on this factor in arguing the appeal

should not be quashed; the costs of future litigation, alone, are not relevant

in determining whether an order is appealable. To this end, we additionally

note that whether or not Grandmother was permitted to intervene, Mother

                                     -5-
J-S08030-20


would have had to continue litigation with Father, whose petition for a de novo

hearing was granted.

      In sum, because there has been no final “resolution of the custody

claims pending between the parties,” the order granting Grandmother

permission to intervene was not final. See Pa.R.A.P. 341(a); Beltran, 748

A.2d at 717. We further hold the order was not appealable under Pa.R.A.P.

313. See Pa.R.A.P. 313. Accordingly, we quash this appeal.

      Appeal quashed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2020




                                     -6-
