J-A07045-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

C.F. & B.F.                              :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                  Appellants             :
                                         :
                     v.                  :
                                         :
L.C., E.G.                               :
                                         :
                  Appellees              :    No. 1713 WDA 2016

               Appeal from the Order Entered October 25, 2016,
               in the Court of Common Pleas of Indiana County,
                     Civil Division at No(s): 12752 CD 2015

BEFORE:       OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED MAY 24, 2017

      C.F. and B.F. (Maternal Grandparents) appeal from the order entered

on October 25, 2016, which sustained preliminary objections filed by E.G.

We quash this appeal.

      N.C. (Mother) and F.C. (Father) were the biological parents of two

children, M.C. (born in 2004) and N.C. (born in 2011) (collectively,

Children).    Mother died in 2012.   After Mother’s death, Father and E.G.

began dating and eventually came to live together.         Father died on

December 18, 2015.        On the same day, Maternal Grandparents filed a

petition for emergency custody of Children, which was granted.         On

December 21, 2015, L.C. (Paternal Grandmother) filed a petition for

emergency custody.        By agreement, the December 18, 2015 order was




*Retired Senior Judge assigned to the Superior Court.
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vacated and Maternal Grandparents and Paternal Grandmother were

provided equal shared legal and physical custody.

      On January 22, 2016, E.G. filed a petition for leave to intervene,

arguing that she stood in loco parentis to Children. On February 12, 2016,

Maternal Grandparents filed a complaint for custody requesting primary

physical custody of Children.

      On April 4, 2016, the trial court granted E.G. permission to intervene,

and on April 20, 2016, E.G. filed preliminary objections to Maternal

Grandparents’ complaint. On April 28, 2016, Maternal Grandparents filed an

amended complaint for custody.       In the amended complaint, Maternal

Grandparents contended they have standing to seek primary physical and

legal custody of Children pursuant to 23 Pa.C.S. § 5324(2).1        They also

averred they have standing to seek partial physical custody of Children

pursuant to 23 Pa.C.S. § 5325(1).2

      E.G. again filed preliminary objections.   Specifically, she argued that

Maternal Grandparents did not have standing to pursue custody pursuant to

23 Pa.C.S. § 5324(2) because they did not stand in loco parentis to Children.

The trial court held a hearing on the preliminary objections, and on October


1
  That statute provides as follows. “The following individuals may file an
action under this chapter for any form of physical custody or legal custody …
(2) A person who stands in loco parentis to the child.” 23 Pa.C.S. § 5324(2).
2
  That statute provides that grandparents may file for partial physical
custody or supervised physical custody “where the parent of the child is
deceased.” 23 Pa.C.S. § 5325(1).

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25, 2016, the trial court entered an order sustaining E.G.’s preliminary

objections, concluding that Maternal Grandparents did not stand in loco

parentis to Children and therefore could not pursue primary physical and

legal custody pursuant to 23 Pa.C.S. § 5324(2).

        Maternal Grandparents timely filed a notice of appeal, and both

Maternal Grandparents and the trial court complied with Pa.R.A.P. 1925.

        Before we reach the issues presented by Maternal Grandparents on

appeal, we consider whether we have jurisdiction over this appeal. 3         It is

well-settled that this Court has jurisdiction over final orders. The definition

of a final order is provided in Rule 341 of the Pennsylvania Rules of Appellate

Procedure. “Rule 341 is fundamental to the exercise of jurisdiction by this

court.” Prelude, Inc. v. Jorcyk, 695 A.2d 422, 424 (Pa. Super. 1997) (en

banc). Rule 341 provides in relevant part as follows:

        (b)   Definition of final order.--A final order is any order that:

              (1)   disposes of all claims and of all parties; or

              (2)   RESCINDED

              (3)   is entered as a final order pursuant to paragraph (c)
                    of this rule.

        (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

3
    Paternal Grandmother and E.G. argue that this appeal should be quashed.

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      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. See also 42 Pa.C.S. § 742 (“The Superior Court shall have

exclusive appellate jurisdiction of all appeals from final orders of the courts

of common pleas….”).

      Instantly, the trial court did not include the language required to

satisfy paragraph (c); so this order is only appealable as a final order if it

disposes of all claims and all parties. “‘[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

parties.’” L.J.C. v. A.W., __ A.3d __, 2017 WL 1376872, at *2 (Pa. Super.

2017) (quoting G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996)).

      In L.J.C., this Court considered an analogous situation. In that case,

the mother had primary physical custody of her four children, the

grandfather had partial physical custody, and they shared legal custody.

The father of two of the children filed a petition for modification of custody

seeking primary physical custody of one of his children.      The grandfather

filed a petition for modification of custody where he requested primary

physical custody of all four children.        The mother argued that the

grandfather lacked standing to pursue primary custody of the children. The




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trial court agreed with the mother, and entered an order consistent with that

determination. The grandfather filed an appeal to this Court.

      On appeal, this Court concluded that the trial court’s order was not a

final order. It reasoned as follows.

             At the time the trial court entered this order, the petition
      to modify custody filed by [the father] remained pending and
      was unaddressed by the court’s directive. In addition, although
      the court concluded that [the g]randfather could not seek
      primary physical custody of the [g]randchildren, it did not
      indicate that it was denying or dismissing [the g]randfather’s
      petition to modify. The court concluded that [the g]randfather
      retains the ability to seek partial physical custody, and it is not
      clear if [the g]randfather intends to pursue an expanded award
      of partial physical custody in lieu of primary physical custody.
      Thus, we conclude that the court has not completed its hearings
      on the merits, and that the [] order was not intended to
      completely resolve the custody claims pending between the
      parties.

Id.   This Court went on to conclude that the order was not appealable

pursuant to the collateral order doctrine.4 Id.    Specifically, the trial court

concluded that the grandfather’s “claim will not be irreparably lost if we

postpone review of this matter until the entry of a final order.” Id.       The

grandfather “retained the right to seek partial physical custody, [and] will be

able to lodge an appeal once a final order is entered [where] he may

challenge the trial court’s determination that he lacks standing[.]” Id.



4
  See Pa.R.A.P. 313 (providing that an appeal may be taken as of right from
a collateral order where the order is “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”).

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      Instantly, it is apparent that the order in this case was not “intended

by the court to constitute a complete resolution of the custody claims

pending between the parties.” Id. Maternal Grandparents are still parties to

the action and can pursue their claim for partial physical custody. Once the

trial court resolves all of the custody matters among E.G., Paternal

Grandmother, and Maternal Grandparents, any party, including Maternal

Grandparents, may appeal. At that juncture, it would be appropriate for this

Court to review the trial court’s order with respect to Maternal Grandparents’

standing should they choose to appeal.

      Because the order appealed from is neither a final order nor a

collateral order, we quash this appeal.5

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2017




5
 Moreover, we observe that this order does not satisfy the requirements for
being an interlocutory appeal as of right pursuant to Pa.R.A.P. 311.

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