B., A. v. B., S.C.

• Court: Superior Court of Pennsylvania
• Decided: December 19, 2024
• Docket: 455 EDA 2024
• Status: Unpublished

Opinion

J-S32015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

A.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : S.C.B. : : Appellant : No. 455 EDA 2024

Appeal from the Order Entered February 1, 2024 In the Court of Common Pleas of Delaware County Civil Division at No: CV-2023-080866

BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 19, 2024

Appellant, S.C.B., appeals pro se from the February 1, 2024 order

entered in the Court of Common Pleas of Delaware County that denied his

petition to vacate an order entered against him under the Protection From

Abuse (“PFA”) Act, 23 Pa.C.S.A. §§ 6101-6122. Upon review, we quash the

appeal.

On May 19, 2023, Appellee, A.B., filed a PFA petition on behalf of herself

and the parties’ child, alleging Appellant was physically abusive to her. She

was granted a temporary PFA order the same day. On May 25, 2023, after a

hearing, Judge Atinuke B. Moss entered a three-year final PFA order against

Appellant prohibiting Appellant from seeing Appellee and their child. Appellant

did not file a timely appeal from the May 25, 2023 final PFA order.

On December 11, 2023, Appellant filed a petition to vacate the May 25,

2023 final PFA order. Appellant asserted that he was denied due process J-S32015-24

because he was incarcerated at the time of the PFA hearing and was not

brought into court. Following a hearing, on February 1, 2024, the court denied

Appellant’s petition to vacate the final PFA order. Thereafter, Appellant filed

a notice of appeal.

After filing a notice of appeal, Appellant filed a petition to modify the

PFA order, which was identical to the petition to vacate previously filed, and a

petition for civil contempt. On March 5, 2024, after a hearing, Judge Rachel

Berry granted Appellant’s petition, vacated the May 25, 2023 final PFA order

and reinstated the May 19, 2023 temporary PFA order. On March 28, 2024,

the court extended the temporary PFA order until further order of court and

scheduled a hearing for June 13, 2024. There is no information in the certified

record as to whether the scheduled hearing occurred or any disposition as a

result of such hearing.

Before we consider the merits, we must address a preliminary issue –

whether we have jurisdiction over this appeal. “This Court may consider the

issue of jurisdiction sua sponte.” Commonwealth v. Grove, 170 A.3d 1127,

1136-37 (Pa. Super. 2017), appeal denied, 185 A.3d 967 (Pa. 2018) (citation

omitted). This Court “will not consider the merits of a judgment of a lower

court if that court lacked jurisdiction to render the judgment.” In re J.M.Y.,

218 A.3d 404, 415 (Pa. 2019). “Jurisdiction is purely a question of law; the

appellate standard of review is de novo and the scope of review is plenary.”

Commonwealth v. Cross, 317 A.3d 655, 657 (Pa. Super. 2024) (citation

omitted).

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On appeal, Appellant principally challenges the granting of the final PFA

order, and not the denial of his petition to vacate. See Appellant’s Brief at 1-

5. This is evidenced by Appellant’s requested relief: (1) hold Appellee in

contempt for violating the PFA; (2) dismiss the PFA order; and (3) charge

Appellee for filing a frivolous PFA petition. Id. at 5. To the extent Appellant

is challenging the granting of the final PFA order, we lack jurisdiction because

he failed to file an appeal within 30 days of date the PFA order was entered.

See Pa.R.A.P. 903(a) (a notice of appeal must be “filed within 30 days after

entry of the order from which the appeal is taken.”).

Although not developed by Appellant in his brief, we decline to find

Appellant waived his challenge to the denial of his petition to vacate. In its

Rule 1925(a) opinion, the trial court found Appellant’s petition to vacate

untimely, citing 42 Pa.C.S.A. § 5505 (“Except as otherwise provided or

prescribed by law, a court . . . may modify or rescind any order within 30 days

after its entry . . . if no appeal from such order has been taken or allowed.”).

See Trial Court Opinion, 4/25/24, at 2. As a result of the untimeliness, the

trial court determined that it lacked jurisdiction to entertain the petition. See

id. Therefore, we must determine whether the trial court erred as a matter

of law.

Initially, we note that there is a distinction between modification and

vacation of a final order. The PFA Act provides that either party “may seek

modification of an order . . . at any time during the pendency of an order.”

23 Pa.C.S.A. § 6117(a) (emphasis added). Once a final PFA order is entered,

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either party may petition the court to modify the final order and request the

order to expire at an earlier date. See Pa.R.Civ.P. 1901.8(c) (emphasis

added).

However, the comment to Rule 1901.8 explains that “[a]fter a final

protection order is entered, and no motion to reconsider or appeal is filed, the

court no longer retains jurisdiction to vacate that order.” Pa.R.Civ.P. 1901.8,

Explanatory Comment, 2013 (citing Commonwealth v. Charnik, 921 A.2d

1214, 1217 n.3 (Pa. Super. 2007)). While Section 5505 was not explicitly

cited, the Charnik court noted that “[o]nce a final order or judgment is

entered, an appeal must be filed within 30 days, or the trial court must

expressly grant reconsideration within 30 days.” Charnik, 921 A.2d at 1217

n.3. The language used by the Charnik court tracks the language of Section

5505.

Here, a final PFA order was entered on May 25, 2023. Appellant did not

file a motion to reconsider or an appeal. Rather, he filed a petition to vacate

on December 11, 2023 – well beyond the 30-day period to do so. Accordingly,

we conclude that the trial court properly denied Appellant’s petition to vacate

the final PFA order as it lacked jurisdiction to do so. This Court similarly lacks

jurisdiction; therefore, we quash the appeal. In re J.M.Y., supra.

Even if we had jurisdiction, we would dismiss the appeal as moot. We

have explained the doctrine of mootness as follows:

As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot. An issue can become moot during the pendency of an appeal due

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to the intervening change in the facts of the case or due to an intervening change in the applicable law. In that case, an opinion of this Court is rendered advisory in nature. An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect.

M.B.S. v. W.E., 232 A.3d 922, 927 (Pa. Super. 2020) (citation omitted).

Mootness may be raised sua sponte because this Court “cannot decide moot

or abstract questions, nor can we enter a judgment or decree which effect

cannot be given.” Id. (citation omitted).

Here, Appellant purportedly appeals the denial of his petition to vacate

the final PFA order. After filing the instant appeal, however, the court did

vacate the final PFA order and reinstated the temporary PFA order. Moreover,

the temporary PFA order was extended “until further order of court” and a

hearing was scheduled. We do not know the outcome of that hearing.

However, regardless of the outcome of that hearing, the court granted the

relief requested by Appellant – vacation of the May 25, 2023 final PFA order.

As such, the issue of whether the court abused its discretion in denying

Appellant’s petition to vacate is moot as our disposition would not have any

legal force or effect.

Appeal quashed.

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Date: 12/19/2024

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