J. S91008/16
                               2017 PA Super 172



J.A.F.                                    :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
C.M.S.,                                   :        No. 1176 MDA 2016
                                          :
                          Appellant       :


                  Appeal from the Order Entered June 21, 2016,
                 in the Court of Common Pleas of Centre County
                         Civil Division at No. 2015-4402


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., AND STEVENS, P.J.E.*


OPINION BY FORD ELLIOTT, P.J.E.:                       FILED JUNE 01, 2017

         C.M.S. (“Mother”) appeals from the June 21, 2016 order entered in the

Court of Common Pleas of Centre County that denied her petition for

declaratory judgment and granted J.A.F. (“Father”) standing to seek legal or

physical custody of the minor child, O.P.S.1 We quash.

         The record reflects that Mother and M.H. began a same-sex romantic

relationship in August 2013; that M.H. transitioned to male in March 2015;

and that Mother and M.H. married on April 8, 2016.           The record further

reflects that in 2014, Mother and M.H. wanted to have a child but lacked the

financial means to engage a sperm bank. As a result, the pair began to look



* Former Justice specially assigned to the Superior Court.
1
  We note that this appeal was labeled a Children’s Fast Track case.       The
trial court’s order, however, did not present a custody issue.
J. S91008/16


for a donor “through friends at work.” (Notes of testimony, 4/25/16 at 6.)

When M.H. discussed the situation with some of those friends at work in the

fall of 2014, Father overheard the conversation and later contacted M.H. via

Facebook to volunteer to impregnate Mother.         The record reflects that in

November 2014, Mother, Father, and M.H. engaged in a series of text

messages in which they planned the logistics of Father impregnating Mother

and discussed the future roles that the parties would play in a resulting

child’s life in the event that Mother and Father conceived.

        The record further reflects that Mother and Father had sexual

intercourse at least once in November or December 2014, and as a result,

Mother became pregnant with O.P.S. Mother gave birth to O.P.S. in August

2015. No dispute exists that Father is the biological father of O.P.S. The

parties, however, dispute the role that Father was to play in the child’s life.

This dispute began during Mother’s pregnancy and continued following the

child’s birth. As a result of this dispute, Mother has refused all of Father’s

requests to see O.P.S.

        On November 9, 2015, Father filed a complaint for custody against

Mother.2     In response, Mother filed preliminary objections alleging that

Father lacked standing to seek custody of the child under 23 Pa.C.S.A.

§ 5324 because, pursuant to the parties’ text-message sperm-donor

contract, he was merely a sperm donor and sperm donors do not have


2
    M.H. is not a party to the underlying custody dispute.


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standing to seek custody under Section 5324.3 Both parties filed briefs and

agreed to have the matter decided by the trial court on the basis of those

briefs. On February 4, 2016, the trial court entered an order that granted

Father provisional standing pending the development of further facts.

       On March 9, 2016, Mother filed a petition for declaratory judgment

requesting that the trial court “enter an order and decree declaring that a

contract exists between the parties . . . and enforce said contract with

respect to [Father’s] interest in and standing for any custody action.”

(Mother’s petition for declaratory judgment, 3/9/16 at 3.)                On April 25,

2016, the trial court conducted a hearing on that petition. Thereafter, both

parties submitted briefs.

       On June 21, 2016, the trial court filed an opinion and entered an

order. In its opinion, the trial court set forth its reasoning for its conclusion

that   no   sperm-donation        contract   existed    between   the    parties   and,

consequently,     deemed     it    unnecessary     to    determine      the   contract’s

enforceability.   (Trial court opinion and order, 6/21/16 at 1-4.)             The trial

court further found that because Father is the biological father of O.P.S.,

Father has standing to seek custody of O.P.S. pursuant to 23 Pa.C.S.A.

§ 5324.     (Id. at 4.)   The trial court simultaneously entered an order that




3
  Section 5324 grants standing to seek custody of a child to a parent of the
child, a person who stands in loco parentis, and, under certain
circumstances, a grandparent of the child. 23 Pa.C.S.A. § 5324.


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denied Mother’s petition for declaratory judgment and granted Father

standing to seek legal or physical custody of O.P.S. (Id.)

      On June 23, 2016, Mother requested a continuance of the custody

proceedings for the reason that “Mother will be filing a Notice of Appeal to

the Superior Court of the court’s ruling in its Motion for Declaratory

Judgment.”     (Mother’s continuance request and order of court, 6/24/16. 4)

On June 24, 2016, the trial court entered an order that rescheduled the

custody hearing that was originally scheduled to take place on June 24, 2016

to March 13, 2017. (Id.)

      On July 15, 2016, Mother filed a notice of appeal to this court and

simultaneously filed a concise statement of errors complained of on appeal.

On July 20, 2016, the trial court filed an “opinion in response to matters

complained of on appeal” in which it incorporated its June 21, 2016 opinion

and order. On August 15, 2016, this court ordered Mother to show cause as

to why her appeal should not be quashed as having been taken from an

unappealable interlocutory order.          Mother filed a timely response.   On

August 31, 2016, this court discharged the show-cause order, and the issue

of appealability is now before us. We note that both parties have addressed

the appealability issue in their briefs.




4
  The continuance request and the order are on the same form and were
docketed on June 24, 2016. (Docket #20.)


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      Here, Mother contends that the order denying her petition for

declaratory judgment constitutes “a final order on the question of whether

there was a valid, enforceable contract, in the form of a sperm donation

agreement, between the parties.” (Mother’s brief at 2.) Mother concedes

that the trial court’s determination that no sperm-donation contract exists

determined Father’s standing to seek custody, but she nevertheless argues

that she appeals from the order denying her declaratory relief and

determining that no sperm-donation contract exists, and not from the order

overruling her preliminary objections wherein she challenged Father’s

standing based on her allegation that he is a contractual sperm donor.

Mother has done nothing more than repackage her preliminary objections

and assign them the new label of “petition for declaratory relief” in an effort

to obtain appellate review of the trial court’s standing determination in the

underlying custody action. Precedent and our rules of court prohibit Mother

from doing so.

      Here, the order Mother seeks to appeal from does not qualify as a final

order because (i) it was entered in an ongoing child custody proceeding;

(ii) the trial court has not completed its hearings on the merits of the

underlying custody dispute;5 and (iii) the order does not constitute a

complete resolution of the custody claims pending between Mother and



5
 The record reflects that the trial court scheduled a custody hearing for
March 13, 2017.


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Father.     Nevertheless, Mother attempts to obtain appellate review by

claiming that the order appealed from denied her declaratory relief, and

pursuant to the Declaratory Judgments Act, that declaration has the force

and effect of a final judgment. (Mother’s brief at 10-12.) In other words,

Mother argues that because the order denied her declaratory relief, the

Declaratory Judgments Act defines the order as a final order.           Mother is

mistaken.

     Section 7532 of the Declaratory Judgments Act provides that:

             Courts of record, within their respective jurisdictions,
             shall have power to declare rights, status, and other
             legal relations whether or not further relief is or
             could be claimed. No action or proceeding shall be
             open to objection on the ground that a declaratory
             judgment or decree is prayed for. The declaration
             may be either affirmative or negative in form and
             effect, and such declarations shall have the force and
             effect of a final judgment or decree.

42 Pa.C.S.A. § 7532.

     In her brief, Mother cites to Nationwide Mut. Ins. Co. v. Wickett,

763 A.2d 813 (Pa. 2000), to support the proposition that an order in a

declaratory judgment action is immediately appealable.         In Wickett, our

supreme court examined a trial court’s order sustaining preliminary

objections and dismissing some, but not all, of the defendants in an action.

There, an insurance company, on its own behalf and on behalf of its

insureds, filed preliminary objections in the underlying declaratory judgment

actions that alleged that the Workers’ Compensation Act provided the



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exclusive remedy for the employee injured in an automobile accident and

the estate of the decedent who was killed in that accident so that those

plaintiffs were precluded from recovering uninsured motorist benefits under

the then-relevant Motor Vehicle Financial Responsibility Law.    By granting

the insurance company’s preliminary objections, the trial court essentially

concluded that neither the injured employee nor the decedent’s estate could

recover from the insurance company and, consequently, its insureds, which,

therefore, declared the legal rights of those particular parties. Accordingly,

our supreme court ruled that the order granting those preliminary objections

was a final and immediately appealable order under the Declaratory

Judgments Act, even though, following its entry, other claims and parties

remained in the lawsuit. Id. at 817-818.

      Since Wickett, our supreme court and this court have distinguished

and limited the breadth of its holding. In Pa. Bankers Ass'n V. Pa. Dep’t

of Banking, 948 A.2d 790 (Pa. 2008), our supreme court rejected

plaintiff-banks’ argument that an order sustaining preliminary objections on

one of seven claims it brought against the defendant constituted a final

order pursuant to the Declaratory Judgments Act because it foreclosed the

banks from proceeding against the defendant on that particularly theory of

recovery. In rejecting that argument, our supreme court distinguished the

Bankers Ass’n order from the Wickett order. Unlike the Bankers Ass’n

order, the Wickett order dismissed all claims against defendant insurance



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J. S91008/16


company and its insureds, which precluded plaintiffs from recovering against

those defendants and, essentially, put plaintiffs out of court with respect to

those    particular   defendants.     Unlike   the   Wickett   plaintiffs,   the

“plaintiff-banks [in Pa. Bankers Ass’n] ‘might still be able to obtain the

relief they are seeking [] based on one of their alternative theories pending

before the [trial court].’” Id. at 474. Therefore, the Bankers Ass’n order

was interlocutory and unappealable.

        Additionally, this court discussed and distinguished Wickett in our

en banc decision in Modern Equip. Sales & Rental Co. v. Main St. Am.

Assurance Co., 106 A.3d 784 (Pa.Super. 2014) (en banc). There, Modern

Equipment Sales & Rental Co. (“Modern”) leased a track loader from United

Construction Services (“UCS”). The track loader was subsequently involved

in an accident, and a personal injury lawsuit was initiated. Modern brought

a declaratory judgment action on four grounds that claimed that under the

track loader lease terms and/or the Main Street America Assurance Co.

(“Main Street”) insurance policy, UCS and Main Street had a duty to defend

Modern in the underlying personal injury action; that Main Street violated its

duty to defend; that Main Street violated its duty to indemnify Modern as an

additional insured; and that Main Street acted in bad faith.      Id. at 786.

Modern then filed a partial motion for summary judgment claiming that

Main Street violated its duty to defend.       Main Street filed a motion for

summary judgment on three of the four counts set forth against it in



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Modern’s complaint.     The trial court denied Modern’s partial motion for

summary judgment and granted Main Street’s motion as to counts II, III,

and IV of Modern’s complaint. Id.

      On appeal, this court quashed Modern's appeal from the trial court’s

order denying it partial summary judgment because the trial court did not

address Modern’s alternative request for relief. We emphasized that:

            [O]ur Supreme Court made clear that its holding in
            Wickett did not render an order, that did not fully
            release a party or completely resolve the dispute,
            a final order.    Rather such an order would be
            deemed a partial declaration of the parties’ rights
            and would not be immediately appealable.

Id. at 788 (citation omitted; emphasis in original).

      Although we can find no cases in the context of a custody dispute that

have applied the Wickett/Pa. Bankers Ass’n analysis, it seems clear that

the same tenets of appealability should apply.         The trial court’s order

denying declaratory relief determined that a valid sperm-donation contract

represented by text messages and oral statements did not exist and that,

consequently, it was not necessary to determine the non-existent contract’s

enforceability.   (Trial court opinion and order, 6/21/16 at 1-4.)   The trial

court further reaffirmed its previous temporary order granting Father

standing to pursue custody.    (Id. at 4.)   As asserted by the trial court, a

finding that no sperm-donation contract exists does not vitiate the court’s

determination that Father has standing to seek custody of O.P.S. as the

child’s biological father. The declaratory judgment order did nothing more


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than deny one of Mother’s defenses to Father’s custody action and did not

ultimately decide affirmatively or negatively the rights of the parties in the

custody action. Stated differently, it did not completely resolve the custody

dispute between Mother and Father.

      We find further support for quashal looking to our supreme court’s

revision of Pa.R.A.P. 341.     Pennsylvania Rule of Appellate Procedure 341

provides, among other things, that an appeal may be taken as of right from

a “final order” of a trial court.       Pa.R.A.P. 341(a).     Rule 341 defines

“final order” as any order that “disposes of all claims and of all parties” or “is

entered as a final order pursuant to paragraph [Pa.R.A.P. 341(c)].”

Pa.R.A.P.(b)(1), (3). Subsection (c) provides:

            (c)     Determination of finality.--When more than
                    one claim for relief is presented in an action,
                    whether as a claim, counterclaim, cross-claim,
                    or third-party claim or when multiple parties
                    are involved, the trial court or other
                    government unit may enter a final order as to
                    one or more but fewer than all of the claims
                    and      parties    only    upon     an   express
                    determination that an immediate appeal would
                    facilitate resolution of the entire case. Such an
                    order becomes appealable when entered. In
                    the absence of such a determination and entry
                    of a final order, any order or other form of
                    decision that adjudicates fewer than all the
                    claims and parties shall not constitute a final
                    order. . . .

Pa.R.A.P. 341(c).

      Rule 341(b) was rescinded on December 14, 2015, effective April 1,

2016, and Mother filed her notice of appeal to this court on July 15, 2016,


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which was after the effective date of the rescission.      Former Rule 341(b)

included within the meaning of a “final order” any order that “is expressly

defined as a final order by statute.” The notes regarding the rescission of

Rule 341(b) explain that the rescission:

            eliminated a potential waiver trap created by
            legislative use of the adjective “final” to describe
            orders that were procedurally interlocutory but
            nonetheless designated as appealable as of right.
            Failure to appeal immediately an interlocutory order
            deemed final by statute waived the right to challenge
            the order on appeal from the final judgment.
            Rescinding subparagraph (b)(2) eliminated this
            potential waiver of the right to appeal. If an order
            designated as appealable by a statute disposes of all
            claims and of all parties, it is appealable as a final
            order pursuant to Pa.R.A.P. 341. If the order does
            not meet that standard, then it is interlocutory
            regardless     of      the    statutory      description.
            Pa.R.A.P. 311(a)(8) provides for appeal as of right
            from an order that is made final or appealable by
            statute or general rule, even though the order does
            not dispose of all claims or of all parties and, thus, is
            interlocutory; Pa.R.A.P. 311(g) addresses waiver if
            no appeal is taken immediately from such
            interlocutory order.

            One of the further effects of the rescission of
            subparagraph (b)(2) is to change the basis for
            appealability of orders that do not end the case but
            grant or deny a declaratory judgment.            See
            [Wickett, 763 A.2d at 818; Pa. Bankers Ass'n,
            948 A.2d at 798.] The effect of the rescission is to
            eliminate waiver for failure to take an immediate
            appeal from such an order. A party aggrieved by an
            interlocutory order granting or denying a declaratory
            judgment, where the order satisfies the criteria for
            “finality” under [Pa. Bankers Ass’n] may elect to
            proceed under Pa.R.A.P 311(a)(8) or wait until the
            end of the case and proceed under subparagraph
            (b)(1)of this rule.


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Notes, Pa.R.A.P. 341.

      Mother is not asserting that the declaratory judgment order is

immediately appealable under Pa.R.A.P. 311(a)(8). In any event, as allowed

by the rescission of Rule 341(b), Mother may appeal the impact of the

declaratory judgment order once a final order has been entered below. With

respect to custody orders, this court has held that “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 a complete resolution of the custody claims pending between the

parties.”   Moyer v. Gresh, 904 A.2d 958, 963 (Pa.Super. 2006) (citation

omitted).

      Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/1/2017




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