Givens v. Givens

450 A.2d 1386, 304 Pa. Super. 571, 1982 Pa. Super. LEXIS 5380

• Court: Superior Court of Pennsylvania
• Decided: October 1, 1982
• Docket: 224
• Status: Published

Opinions

BECK, Judge:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, Family Division, denying appellant Suzanne Russell Givens’ Motion to Appoint Guardian Ad Litem for her co-plaintiff son Adam Lawrence Givens, age 16, in this support action.¹ The appellant mother made this motion pursuant to Pennsylvania Rule of Civil Procedure No. 2031, which governs the appointment of guardians ad litem for minor parties for actions in law or equity.² Because we hold that the order denying this appellant’s Motion to Appoint Guardian Ad Litem was not a final, appealable order, we quash this appeal. Although no parties have questioned the authority of this Court to review the lower court order, this Court may raise the issue of appealability sua sponte. Jones v. Crossgates, Inc., 220 Pa.Super. 427, 289 A.2d 491 (1972).³

On January 27, 1981, appellant Suzanne R. Givens filed pro se a Petition to Reduce [Support] Arrearages to Judgment” (hereafter “Support Arrearage Petition”). The Support Arrearage Petition was captioned, “Adam L. Givens, Mark P. Givens, Suzanne R. Givens, Plaintiffs v. Austin Givens, Defendant.”⁴ Contending that appellee had made no support payments to them since May 1979, petitioners sought to enforce an alleged support order requiring defendant to pay them $350.00 per month. On January 29, 1981, a hearing on the Support Arrearage Petition was held. The lower court did not reach the merits of the petitioners’ Support Arrearage Petition because no existing support order could be found in the record. The guardian ad litem issue presently before this Court arose at that hearing. At that abortive hearing, Timothy G. Wojton, the attorney for the appellant mother Suzanne R. Givens, informed the Court that he was “representing .. . [the mother] in the court order for her children.” (N.T. 1/29/81, 68). It is not exactly clear why, but appellee’s counsel objected, stating that no guardian ad litem had been appointed for the children in any Domestic Relations Division case involving the parties. (N.T. 1/29/81, 67). Next, Mr. Wojton asked the court to appoint him as guardian ad litem for Adam and Mark Givens. (N.T. 1/29/81, 69). The court refrained from considering this oral motion because “there . . . [was] nothing before the [c]ourt yet on that subject,” (N.T. 1/29/81, 72) and continued the proceedings until March 16, 1981, when the Support Arrearage Petition was to be heard on the merits.

Into this already confused picture the appellant mother, acting pro'se, on February 4, 1981, presented the Motion to Appoint Guardian Ad Litem to the trial judge. The Motion alleged that the appellant mother’s son Adam, age 16, was “under decisive legal disability” and requested the court to grant a hearing on whether the attorney Mr. Wojton should be appointed his Guardian Ad Litem. The trial court denied this Motion to Appoint Guardian Ad Litem, without notice and hearing to the minor or to any other designated person.⁵ Hence, this appeal.

In considering the instant case, we are mindful that in all proceedings in law or equity, the law aims to dispose of litigation by a single appeal, and preliminary orders are not generally appealable in advance of a final judgment. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).⁶ It is well settled that an order is final when it determines the whole action, ends the litigation, and precludes appellant from further action in the court issuing the order. In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979); Alessandro v. State Farm Mut. Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979). By this standard, the lower court order denying the appellant mother’s Motion to Appoint Guardian Ad Litem was clearly not final. Such order in no way prevents the mother from continuing to pursue the support action.⁷ When a final judgment has been rendered on that action in the lower court, she will then have the opportunity to raise on appeal the issue whether the lower court acted properly in denying her Motion to Appoint Guardian Ad Litem.⁸

This appeal is accordingly quashed.

POPOVICH, J., files a dissenting opinion.

1 . Appellant’s motion is entitled “Motion to Grant Hearing Slection [sic] and Appointment of Guardians Rule CRP 2031.”

2 . A guardian ad litem appointed under Pa.R.C.P. No. 2031 is a person “representing the interest of a minor in ... [the] action,” Pa.R.C.P. No. 2026, with the power to “supervise and control the conduct of the action in behalf of the minor.” Pa.R.C.P. No. 2027. Pa.R.C.P. No. 2031 provides as follows for the appointment of such guardians:” (b) If a minor party to an action is not represented, the court shall appoint a guardian for him either upon its own motion or upon the petition of (1) the minor party, (2) a guardian of the minor appointed by any court of competent jurisdiction, or by a will duly probated, (3) any relative of the minor, or (4) any other party to the action----”

3 . In the instant case, we hold only that an order denying a motion to - appoint a guardian ad litem for a minor party is not final. We are not here concerned with whether a court’s refusal to appoint a testamentary guardian for a minor should be considered a final, appealable order. See Senseman’s Appeal, 21 Pa. 331 (1853).

4 . For the purposes of this appeal, we assume without deciding that there was an original support order at the specific term and number at which appellants’ Support Arrearage Petition was filed. We further assume without deciding that at the time of the filing of the Support Arrearage Petition, the minors Mark and Adam were named plaintiffs in that action. We recognize that such information is normally clear from the record itself, but in this case, our review has been hampered by the fact that considerable portions of the record apparently no longer exist.

5 . Pa.R.C.P. § 2031(e) states: “When the petition [to appoint guardian ad litem] is filed by a person other than the minor, the court shall direct a rule to be served upon the minor or upon such other person as the court may designate to show cause why the prayer of the petition should not be granted.”

6 . An order denying a Pa.R.C.P. No. 2031 motion for the appointment of a guardian ad litem for a minor party does not fall within any of the exceptions enumerated in Rules 311(a-c) of the Pennsylvania Rules of Appellate Procedure, Pa.R.App.P. Nos. 311(a), 311(b), 311(c).

7 . The Pennsylvania Rules of Civil Procedure contain special provisions outlining procedures by which certain unrepresented minor plaintiffs and defendants may obtain post judgment relief at the trial court level, without invoking an appellate court'. Pa.R.C.P. No. 2035, relating to minor plaintiffs, states: “The non-representation of a minor plaintiff may not be assigned by a defendant as a ground for a non-suit, directed verdict, or judgment n.o.v., but may be assigned by the minor plaintiff as ground for a new trial when a setoff or counterclaim has been successfully asserted against the minor plaintiff.” Pa.R.C.P. No. 2034(d), relating to minor defendants, states: “If, after the conclusion of the trial, or after the entry of a finding, verdict or judgment against a minor, application is made for the appointment of a guardian for a minor party against whom any relief is sought, the court shall, in either case, forthwith appoint a guardian for such minor, and may vacate the finding, verdict or judgment and may enter an order in the nature of a procedendo.”

8 . We note that it has been held that an appeal from an order overruling a defendant’s preliminary objections, alleging plaintiff’s failure to join an indispensable party is interlocutory. DeAngelis v. Laughlin, 436 Pa. 75, 258 A.2d 615 (1969) (Roberts, Pomeroy, JJ., concurring). By the same token, the order at issue here, which might result in the minor’s interests being less than fully protected, should not be considered final.