J-A20001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.R.S., JR.                               :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellant             :
                                          :
              v.                          :
                                          :
K.F.S.                                    :
                                          :
                    Appellee              :          No. 420 MDA 2017

                Appeal from the Order Entered February 9, 2017
              In the Court of Common Pleas of Cumberland County
                      Civil Division at No(s): 2016-03612


BEFORE:       GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED AUGUST 08, 2017

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

Cumberland County Court of Common Pleas, which granted the emergency

petition for special relief of Appellee K.F.S. (“Mother”), in this custody action.

We quash the appeal.

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

The parties are the natural parents of three minor children (“Children”), born

in 2006, 2007, and 2012, respectively.        On June 24, 2016, Father filed a

custody complaint seeking shared legal and partial physical custody of

Children.   The parties attended a custody conciliation on August 8, 2016,

after which they agreed to an interim custody order. Per the agreement, the

parties would share legal custody and Mother would have primary physical

custody of Children, subject to Father’s periods of partial physical custody
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every other weekend, overnight Wednesdays in the summer, and Tuesday

and Thursday evenings during the school year. The interim custody order

states: “Father will insure that the children will attend church services and

religious education classes during his period of custody.”       (Order, dated

8/8/16, at 1).   On October 4, 2016, the parties attended another custody

conciliation, after which they agreed that the August 8, 2016 order would

remain in full effect subject to some minor clarifications regarding

participation in a custody evaluation, the location of custody exchanges, and

the custody schedule during Christmas.

      On January 19, 2017, Mother filed an emergency petition for special

relief claiming, inter alia, Father did not take the parties’ two older Children

to one of their scheduled Confraternity of Christian Doctrine (“CCD”) classes

and had contacted the Director of Children’s church about changing

Children’s CCD schedule, so Children would not have to attend CCD during

Father’s custodial time.   Mother’s petition asked the court to clarify the

August 8, 2016 interim custody order to ensure Children are able to continue

their religious education at their current church. Alternatively, Mother asked

the court to permit her to take Children to their CCD classes during Father’s

custodial time and return Children to Father at the end of class. Father filed

a response on February 1, 2017.      Following oral argument on February 9,

2017, the court granted Mother’s petition, in an order that states:

         1. The children shall continue to be raised in the Catholic
         faith.

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         2. If Father does not wish to promote the four remaining
         prescheduled CCD [classes], Father is to relinquish his
         periods of custody between 8:00 a.m. and 12:30 p.m.

         3. In the event of the latter, Father will be given makeup
         custody on the next available Wednesday from arrival at
         home after school through a reasonable dinner hour.

(Order, dated 2/9/17, at 1).

      On February 22, 2017, Father filed a petition for reconsideration

challenging the language in paragraph 1 of the court’s order stating: “The

children shall continue to be raised in the Catholic faith.” (Id.) Essentially,

Father complained the language of the court’s order was overly broad and

infringed on his right to provide Children with religious exposure and

instruction in a manner Father sees fit. Before the court ruled on Father’s

reconsideration motion, 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 March 29, 2017, this Court issued a rule to show cause why the

appeal should not be quashed as interlocutory, where the custody matter is

still pending.   Father responded on April 7, 2017, claiming the court’s

February 9, 2017 order constitutes a “final” order under these facts.

Alternatively, Father alleged the appeal was proper under the collateral order

doctrine. This Court discharged the rule on April 12, 2017, and deferred the

issue to the merits panel.

      Father raises the following issue for our review:

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION

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         AND MISTAKENLY APPLIED THE LAW BY ORDERING THAT
         THE SUBJECT CHILDREN MUST BE RAISED IN THE
         CATHOLIC FAITH?

(Father’s Brief at 4).

      As a preliminary matter, “the appealability of an order directly

implicates the jurisdiction of the court asked to review the order.” Estate of

Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009).

Pennsylvania law makes clear:

         [A]n appeal may be taken from: (1) a final order or an
         order certified 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)); or (4) a collateral order (Pa.R.A.P.
         313).

Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super. 2006), appeal denied, 591

Pa. 704, 918 A.2d 747 (2007). A final order is one that disposes of all the

parties and all the claims; or is entered as a final order pursuant to the trial

court’s determination under Rule 341(c). See Pa.R.A.P. 341(b)(1), (3).

      “[A] custody order will be considered final and appealable only 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).           This Court has

explained the rationale for requiring finality in custody matters as follows:

         [A] custody order will be considered final and appealable
         only if it is both: 1) entered after the court has completed
         its hearing 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

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        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 (holding mother’s appeal from order granting father partial

physical custody was non-final, interlocutory order where court had not

completed custody hearings on merits and order was not intended to

constitute complete resolution of ultimate issues between parties).

     A collateral order is defined in Rule 313 as follows:

        Rule 313. Collateral Orders

                                 *    *    *

           (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(b). Our Supreme Court has explained:

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          [T]he collateral order doctrine is a specialized practical
          application of the general rule that only final orders are
          appealable as of right. Thus, Rule 313 must be interpreted
          narrowly, and the requirements for an appealable collateral
          order remain stringent in order to prevent undue corrosion
          of the final order rule.

Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d 42, 46-47 (2003).             “To that

end, each prong of the collateral order doctrine must be met before an order

may be considered collateral.” Id. at 272, 836 A.2d at 47.

       “With regard to the first prong of the collateral order doctrine, an order

is separable from the main cause of action if it is entirely distinct from the

underlying issue in the case and if it can be resolved without an analysis of

the merits of the underlying dispute.” K.C. v. L.A., 633 Pa. 722, 729, 128

A.3d 774, 779 (2015) (internal citation and quotation marks omitted).

Regarding the second prong, “a right is important if the interests that would

go unprotected without immediate appeal are significant relative to the

efficiency interests served by the final order rule.” Id. at 730, 128 A.3d at

779.   “[I]t is not sufficient that the issue under review is important to a

particular party; it ‘must involve rights deeply rooted in public policy going

beyond the particular litigation at hand.’”     Stahl, supra at 485 (quoting

Melvin, supra at 272, 836 A.2d at 47).         See also G.B., supra (holding

mother’s appeal from order granting father partial physical custody was not

immediately reviewable under collateral order doctrine; although court’s

order touched upon important rights of all parties—children’s right to be

protected from potentially harmful situations, mother’s right to protect her

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J-A20001-17


children from contacts with father which mother perceives as harmful, and

father’s right not to be foreclosed from contact and communication with his

children—court’s interim order granting father partial physical custody was

not separable from and collateral to main cause of action; rather, interim

order was intertwined with ultimate issue in case—whether father should

have partial physical custody of children; interim order was integral part of

trial court’s progress toward decision of ultimate issues in case and thus

cannot be viewed as either separable from or collateral to proceedings in

main cause of action). Concerning the third prong, whether a party’s claims

will be “irreparably lost” if review is postponed turns on the particular facts

and circumstances of each case. See K.C., supra; G.B., supra.

      Instantly, the record makes clear the court’s February 9, 2017 order

did not resolve all of the custody issues between the parties.     The record

indicates the parties have undergone custody evaluations but the evaluator

has not yet issued a report.    To date, no custody hearings on the merits

have occurred.    Further, the trial court’s Rule 1925(a) opinion expressly

states that the court granted Mother’s emergency petition for special relief to

preserve the status quo and contemplated further custody proceedings.

Consequently, the court’s February 9, 2017 order is not “final” for purposes

of Rule 341. See Pa.R.A.P. 341(b); G.B., supra.

      Additionally, the record in this case indicates that issues surrounding

Children’s religious education are important to the parties and will influence


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J-A20001-17


the trial court’s ultimate custody schedule. According to Mother, the parties

verbally agreed Children would be raised Catholic. The court’s February 9,

2017 order requiring Children to be raised Catholic and altering Father’s

custody schedule if he does not take Children to their scheduled CCD classes

is therefore intertwined with the underlying issues in this custody matter,

and is not entirely distinct from the main cause of action.   See Pa.R.A.P.

313(b); K.C., supra; G.B., supra. Further, Father’s challenge to the order

will not be “irreparably lost” if Father awaits review from a final custody

order.1   Thus, the order Father appeals has failed to satisfy the collateral

order doctrine.2        See Pa.R.A.P. 313(b); K.C., supra; G.B., supra.

Accordingly, we quash the appeal.

       Appeal quashed. Case is stricken from argument list.
____________________________________________


1
  We observe Father’s motion for reconsideration is still outstanding. The
better recourse for Father at this juncture would be to pursue relief before
the trial court on Father’s open motion and ask the court to amend its
February 9, 2017 order and limit the order to the precise relief sought in
Mother’s emergency petition for special relief, regarding CCD classes.

Father’s reliance on K.W. v. S.L., 157 A.3d 498 (Pa.Super. 2017) is
misplaced.     In K.W., this Court decided an order granting third-party
standing in a custody dispute qualified as a collateral order. The issue of
standing was a preliminary jurisdictional question that this Court could
decide as a matter of law. Unlike K.W., this appeal does not involve a
jurisdictional issue. Thus, K.W. is inapposite.
2
  Father makes no argument that the order appealed from was expressly
entered as final by the trial court. See Pa.R.A.P. 341(b)(3), (c). Likewise,
Father does not qualify the order on appeal as interlocutory as of right (see
Pa.R.A.P. 311) or interlocutory by permission (see Pa.R.A.P. 312, 1311, 42
Pa.C.S.A. § 702(b)).



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J-A20001-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2017




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