M.N.K. v. T.A.P., Jr. v. S.P.

• Court: Superior Court of Pennsylvania
• Decided: May 24, 2019
• Docket: 2085 MDA 2018
• Status: Unpublished

Opinion

J-S25025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.N.K. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : : T.A.P., JR. : : No. 2085 MDA 2018 v. : : S.P. : :

Appeal from the Order Entered November 27, 2018 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2014-CV-05992-CU

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

JUDGMENT ORDER BY MURRAY, J.: FILED: MAY 24, 2019

M.N.K. (Mother) appeals from the November 27, 2018 order granting

the amended petition of S.P. (Paternal Grandmother) to intervene in custody

and be added as a party to this action as an intervenor. After careful review,

we quash the appeal because it was not taken from an appealable order.

Mother and T.A.P., Jr. (Father) are the parents of a minor child, J.J.K.

(Child), born in April 2014. In July 2014, Mother filed a complaint in custody.

In August 2014, the court granted joint legal custody to Mother and Father,

with Mother having primary physical custody and Father having partial

physical custody. A second custody order was entered in September 2014,

providing for the same custody but with an adjusted schedule. J-S25025-19

On June 7, 2018, Mother filed a petition to modify custody due to her

concerns with Father’s drug use, recent incarceration, and extensive criminal

history following the entry of the September 2014 order. See Pet. to Modify

Custody, 6/7/18, at 1-4. While the petition was pending, Paternal

Grandmother filed a petition seeking to intervene. See Pet. to Intervene in

Custody, 6/25/18, at 1-4. Mother filed an answer in opposition. See Answer

to Pet. to Intervene, 7/26/18, at 1-5. In August 2018, Paternal Grandmother

filed a petition for special relief, which the trial court denied. See Pet. for

Special Relief 8/10/18, at 1-3; Order, 8/13/18, at 1.

On September 26, 2018, Paternal Grandmother filed an amended

petition to intervene in which she claimed: 1) pursuant to 23 Pa.C.S.A. §

5325, she had standing to bring the petition because her relationship with

Child began with the consent of both parents; and 2) during Father’s periods

of custody, Paternal Grandmother acted in loco parentis to Child.1 See

Amended Pet. to Intervene, 9/26/18, at 1-3. The petition further averred that

Father was incarcerated, and Paternal Grandmother wished to continue

exercising Father’s periods of partial physical custody. Id. Mother again filed

an answer in opposition. See Answer to Pet. to Intervene, 10/19/18, at 1-5.

Following a hearing, the trial court on November 27, 2018 entered an

order granting Paternal Grandmother standing to intervene. On December

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1 Presumably, Paternal Grandmother is referencing 23 Pa.C.S.A. § 5324(2), although she did not cite this provision.

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21, 2018, Mother filed a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b).2 On December 24, 2018, Mother filed a notice

of appeal.

On appeal, Mother presents two issues:

A. Did the trial court err in granting Intervenor, [S.P.], the right to intervene in the underlying custody action under 23 Pa.C.S. § 5324?

B. Did the trial court err in granting Intervenor, [S.P.], the right to intervene in the underlying custody action under 23 Pa.C.S. § 5325?

Mother’s Brief at 2.

Our review reveals that we may not reach the merits of Mother’s issues.

The November 27, 2018 order from which Mother appealed is not appealable.

We note that appealability goes directly to our jurisdiction, and we may raise

the issue sua sponte. See K.W. v. S.L., 157 A.3d 498, 501 (Pa. Super. 2017).

This appeal, having been filed from an order granting standing in a custody

matter, is interlocutory and unappealable. See J.A.F. v. C.M.S., 164 A.3d

1277 (Pa. Super. 2016); see also In re Manley, 451 A.2d 557 (Pa. Super.

1982) (order granting intervention is interlocutory and unappealable).

Compare, Pa.R.A.P. 341 and notes (stating that orders denying intervention

2 As this is a Children’s Fast Track appeal, Mother should have filed her concise statement of errors on appeal and notice of appeal simultaneously. See Pa.R.A.P. 1925(a)(2)(i) and (b). However, while Mother’s initial filing was defective, we need not dismiss this appeal for that reason, because Mother shortly thereafter filed her notice of appeal, there was no allegation of prejudice from the late filing, and appellate review was not impeded. See In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009).

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may be appealable under Pa.R.A.P. 313). Accordingly, Mother’s appeal is not

properly before us.

Appeal quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/24/2019

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