J-A08019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.O.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

P.O.

                            Appellee                 No. 1733 MDA 2014


              Appeal from the Order Entered September 10, 2014
             In the Court of Common Pleas of Lackawanna County
                      Orphans’ Court at No.: 06FC 40111


BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                            FILED MARCH 30, 2015

        A.O. (“Mother”) appeals the September 10, 2014 order that denied her

petition to remove the guardian ad litem (“G.A.L.”) of the minor children

who are the subject of custody litigation between Mother and P.O.

(“Father”). After review, we quash the appeal.

        The trial court provided the following summary of the history of this

case:

        On January 24, 2006, Mother filed a complaint in custody against
        [Father] seeking custody of the minor children, K.O. and L.O.
        On February 21, 2006, [the] Honorable Judge [Chester] Harhut
        awarded primary physical custody to Mother and shared legal
        custody between Mother and Father. Father had periods of
        partial custody on weekends and Wednesdays. Because of the
        acrimonious relationship between the parties, the order also
        stated that “neither parent shall say or do anything in the
____________________________________________


*
        Retired Senior Judge assigned to the Superior Court.
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       presence or hearing of the children that would in any way
       diminish the children’s love or affection for the other parent, and
       shall not allow others to do so.” On September 20, 2006, [the]
       Honorable Judge Harhut appointed Michael Marrazzo, Esquire, as
       G.A.L. of the minor children, who agreed to provide his services
       pro bono. On June 19, 2007, [the] Honorable Judge Harhut
       ordered that Danielle Ross, Esquire, would replace Attorney
       Marrazzo as the G.A.L. for the minor children and Lackawanna
       County would pay the services of the G.A.L. . . .

       On June 3, 2013, Bonni Shelp, Esquire, replaced Danielle Ross,
       Esquire, as G.A.L. of the minor children. On June 4, 2013,
       Attorney Shelp filed a petition for emergency special relief in
       custody seeking to prohibit Mother from relocating to Pottstown
       with the minor children and to transfer custody of the minor
       children to Father. The G.A.L. alleged in her petition that she
       was advised that Mother had decided to relocate and had taken
       substantial steps in furtherance of that goal without conferring
       with Father or filing a petition to relocate with the court. On
       June 14, 2014, following a hearing on the G.A.L.’s petition for
       special relief, [the] Honorable Judge [Margaret] Moyle modified
       custody to shared physical custody of the [children]. On June
       20, 2013, Mother then filed a petition to modify [the] custody
       order due to relocation, in which Mother sought to relocate the
       minor children to Pottstown, PA. After an evidentiary hearing on
       the matter in front of [the trial] court on August 12, 2013 on
       Mother’s proposed relocation, [the trial] court granted the
       G.A.L.’s request for a nonsuit, holding that Mother, the party
       proposing relocation, failed to sustain her burden in establishing
       that relocation would serve the best interest of the minor
       children. On November 13, 2013, [the trial] court entered an
       opinion setting forth its reasons for denying Mother’s relocation.
       The Superior Court remanded Mother’s relocation to [the trial]
       court,[1] and the hearing has not yet been held, due to several
       requests for continuances by Mother. On April 30, 2014, Mother
____________________________________________


1
      This Court vacated the trial court’s order, holding that the trial court
erred in precluding evidence pertaining to custody when both custody and
relocation were implicated in Mother’s petition. A.O. v. P.O., 1645 MDA
2013, at 8-9. (Pa. Super. March 17, 2014) (unpublished memorandum). We
also noted that the grant of a nonsuit was procedurally improper. Id. at 7
n.1. We remanded the case for a full evidentiary hearing. Id. at 10.



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      filed a motion to remove [the Honorable Richard Saxton] from
      this case, alleging “where upon advise [sic] of Ms. Shelp, the
      Honorable Judge Saxton refused to hear pertinent evidence and
      witnesses.”

      On July 3, 2014, Mother filed a petition to remove [the] G.A.L.
      from this case. Mother alleged in her petition that Attorney
      Shelp lost impartiality and had an “overly adversarial
      relationship to Mother.” A hearing was set before [the trial]
      court on August 11, 2014 on Mother’s petition and later
      continued to August 29, 2014 before [the trial] court.

      On August 29, 2014, [the trial] court heard oral argument on
      Mother’s petition to remove the G.A.L. At the conclusion of the
      hearing, [the trial] court found that Mother did not present
      sufficient evidence to support her petition and denied Mother’s
      petition. [The trial] court entered an order on September 10,
      2014 codifying [the trial] court’s decision to deny Mother’s
      petition.

Trial Court Opinion (“T.C.O.”), 11/10/2014, at 1-4 (minor modifications to

capitalization and punctuation; footnote and citations to record omitted).

      On October 8, 2014, Mother timely filed a notice of appeal and her

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b). On November 10, 2014, the trial court filed its Rule

1925(a) opinion.

      Before we reach the issues that Mother raises in her appeal, we first

must ensure that the September 10, 2014 order is appealable. “Ordinarily,

this Court has jurisdiction only of appeals from final orders.”     D.L.H. v.

R.W.L., 777 A.2d 1158, 1158 (Pa. Super. 2001). “[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

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

Pa.R.A.P. 341(b) (defining a final order as one that: (1) disposes of all

claims and all parties; (2) is defined as a final order by statute; or (3) is

entered as an express final order by the trial court).     At the time of the

hearing on Mother’s petition to remove the G.A.L., there was a pending

remand from this Court for a full evidentiary hearing on Mother’s petition for

relocation.    As that has yet to occur and has been continued pending the

instant appeal, the trial court could not have intended its September 10,

2014 order to “constitute a complete resolution of the custody claims

pending between the parties.” G.B., supra. Therefore, the order was not a

final order.

      However, this does not end our inquiry. Even it is not a final order, an

order is appealable if it is an interlocutory appeal as of right, see Pa.R.A.P.

311; an interlocutory appeal by permission, see Pa.R.A.P. 312; or a

collateral order, see Pa.R.A.P. 313.       Mother did not file a petition for

permission to appeal so the order is not appealable pursuant to Pa.R.A.P.

312 and 1311. Denial of a petition to remove a G.A.L. is not listed as an

interlocutory appeal as of right pursuant to Pa.R.A.P. 311.

      Therefore, we must consider whether Mother’s appeal is from a

collateral order. “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.

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313(b). Therefore, the three elements of a collateral order are “separability,

importance and irreparable loss.” Rehrer v. Youst, 91 A.3d 183, 188 (Pa.

Super. 2014).

      Rehrer, while not directly on point, is instructive. In Rehrer, upon a

motion by the defendants, a trial court appointed a G.A.L. for an

incapacitated minor who was the plaintiff, along with her mother, in a

negligence suit.   Id. at 186-87.    The mother appealed the appointment.

This Court determined that the appointment was a collateral order. First, it

held that the issue concerning the G.A.L. (whether the trial court abused its

discretion in determining that a G.A.L. was needed to effectuate the minor’s

best interests) was separable from the underlying issue of the case (whether

the defendants were negligent). Next, this Court found that the issue was

too important to be denied review because the mother was losing her

fundamental right as a parent to make decisions regarding her child:

namely, the protection of the child’s legal interests.   Finally, because the

G.A.L. had the authority to settle the law suit, if settlement were reached,

the mother would have no avenue to contest the appointment, and the claim

would be irreparably lost. Id. at 188.

      The facts of this case lead to a different result. Unlike the negligence

action in Rehrer, appointment of a G.A.L. is entwined with the underlying

action and is not separable. A G.A.L. represents a child’s best interest and is

only appointed when necessary to assist with the determination of the child’s

best interest.   See Pa.R.A.P. 1915.11-2(a).    Similarly, the purpose of the

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underlying relocation and custody action is also to determine the children’s

best interest. S.J.S. v. M.J.S., 76 A.3d 541, 554 (Pa. Super. 2013) (“Our

concern in any custody or relocation matter is the best interest of the

child.”). Also, this case does not present that same type of important issue

that cannot be denied review.         Mother is not losing any fundamental

parental rights.    Whether or not the G.A.L. is involved, the trial court will

determine what custody rights Mother will have. Finally, Mother will be able

to present her current claims regarding the G.A.L. if she decides to appeal

the final custody order after the pending hearing, so her claim will not be

irreparably lost.   As it satisfies none of the prongs of Rule 313, the order

appealed is not a collateral order. Therefore, it is not an appealable order

and accordingly, this appeal is quashed.

      As guidance for the pending hearing on Mother’s relocation, we note

that, at the prior relocation hearing, the G.A.L. acted as counsel, including

cross-examining witnesses.     See, e.g., Notes of Testimony, 8/12/2013, at

40. As of September 3, 2013, a G.A.L. no longer has the right to present

witnesses or evidence or examine or cross-examine witnesses.         Pa.R.A.P.

1915.11-2, Note; 1915.25.       Therefore, in future proceedings, the G.A.L.

shall not be permitted to cross-examine witnesses.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




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