S.N.M. v. M.F.

175 A.3d 333
Superior Court of Pennsylvania·Decided November 20, 2017·No. No. 868 EDA 2017·Published·Cited by 3 cases

Opinion

OPINION BY

BENDER, P.J.E.:

S.N.M. (Mother) appeals from the February 27, 2017 order that dismissed the paternity action filed by M.F. (Father), who the court determined was not the biological father of J.M. (Child), born in August of 2003. After review, we .reverse.

On -September 6, 2016, Father filed a motion to establish paternity and for genetic testing regarding Child. A hearing was scheduled for December 21, 2016, and was attended by Mother, Father, and Donna Marcus, an ADA with the Philadelphia District Attorney’s Office, who is essentially representing Mother in this matter pur-. suant to 23 Pa.C.S. § 4306.1. The trial court’s opinion, filed pursuant to Pa.R.A.P. 1925(a), describes the factual and procedural background of this case, stating:

[Father] testified, inter alia, .that he had been incarcerated for eight years, including during the birth of the child, and he had doubts as to whether he was the biological father of [C]hild.
At the time of the hearing, there was no outstanding order for support running against [Father]. Mother testified that a custody order was entered between the parties in 2003, and as a result, [Father] was required to sign an Acknowledgment of Paternity. This court took into consideration [Father’s] eight-year period of incarceration during which time he had no custody with [C]hild, [Father’s] testimony of his subsequent doubts as to paternity, and the fact that he filed ’his motion for genetic testing shortly after his release from prison in April 2016, and determined those as significant factors weighing against a finding of paternity by estop-pel.[2] As a result, this court entered its order on December 21, 2016, as follows:
MOTION TO ESTABLISH PATERNITY FILED SEPTEMBER 6, 2016 IS RESOLVED AFTER A HEARING. DEFENDANT, [FATHER], PLAINTIFF, [MOTHER], AND THE. MINOR CHILD, ... SHALL GO FORTHWITH TO THE PHILADELPHIA FAMILY COURT GENETIC TESTING LAB,. .FOR GENETIC TESTING TO BE CONDUCTED. MATTER TO BE RE-LISTED UPON AVAILABILITY OF RESULTS.
Twenty minutes after the conclusion of the hearing, ADA Marcus .requested that the motion be recalled to orally request a stay of genetic testing, which this court denied.
- Immediately following the hearing, both parties and [C]hild submitted to genetic testing at the Philadelphia Family Court’s genetic testing unit.. Results of genetic testing were received and docketed on January 3, 2017, and notices were sent to the parties of a hearing scheduled administratively for March 14, 2017, at 9:00 a.m., in a different courtroom tha[n] that of the undersigned judge. The docketed results indicated that the probability of paternity for [Father] was 0%.
On January 10, 2017, [ADA] Marcus filed [a] ... Petition for Reconsideration of the order of December 21, 2016. Thereafter, on February 1, 2017, this court entered its order denying Mother’s Petition for Reconsideration, as follows:
COMMONWEALTH’S PETITION FOR RECONSIDERATION .OF PATERNITY OF ORDER ENTERED BY THIS COURT AFTER A HEARING ON DECEMBER 21, 2016, AND FILED BY ADA DONNA MARCUS ON JANUARY 6, 2017, IS DENIED AFTER REVIEW. THE GENETIC TESTING RESULTS THAT ARE PART OF THE COURT FILE INDICATE THAT [FATHER], PETITIONER IN THE UNDERLYING MOTION ■ FOR GENETIC TESTING[,] IS EXCLUDED AS THE BIOLOGICAL FATHER OF MINOR CHILD....
On March' 10, 2017, [ADA] Marcus filed a Notice of Appeal along with a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) of the February 27, 2017, order in this matter. [See infra.] [ADA] Marcus did not appeal from either the December 21, 2016, final order entered by this court or from the February 1, 2017, order denying reconsideration of that final order. This court believes that it is significant that the undersigned judge never signed the administrative order docketed on February 27, 2017, and in fact, the undersigned judge never saw the unsigned administrative order until this judge received it as an attachment to [ADA] Marcus’ Notice of Appeal. The administrative order provides as follows:
AND NOW, THIS FEBRUARY 27, 2017, IT IS HEREBY ORDERED THAT DEFENDANT IS NOT THE BIOLOGICAL FATHER OF THE CHILD..., BORN ... TO [MOTHER] AND THIS PATERNITY ACTION IS DISMISSED.

Trial Court Opinion (TCO), 3/27/17, at 1-3 (citations to the record omitted).

As noted, the court explained that the February 27, 2017 order was administratively entered as a computer-generated order through the Giant Activity Matrix (GAM). Moreover, the opinion appears to suggest that the court believes the final order from which an appeal should have been taken was the December 21, 2016 order, directing the parties -to submit to genetic testing, or from the February 1, 2017 order, denying reconsideration of the December 21st order. Therefore, the court seems to intimate that the appeal in this matter was untimely, having only been filed on March 10, 2017, more than thirty days after the December 21st and February 1st orders were entered.3 Thus, based on its discussion of the reasons for its determination, the trial court requests that this Court quash this appeal.

We now turn to the issues raised by ADA Marcus in Mother’s appeal:

I. Did the trial court err when it granted [Father’s] motion to establish paternity and ordered genetic testing, even though paternity had already been established when [Father] was adjudicated as the father of [C]hild in 2003 by signing an Acknowledgement of Paternity and the doctrine of paternity by estoppel applied since [Father] has held himself out as the father for thirteen (13) years?
II. Did the trial court err when, after receiving the genetic testing results, the court cancelled the scheduled hearing on the genetic testing results, sua sponte, and entered a final order declaring that [Father] is not the biological father of the child in question, thus precluding [Mother’s] opportunity to present testimony or challenge the legality of the entry of the genetic testing results into evidence?

Mother’s brief at 4 (footnote omitted).

Before addressing Mother’s issues, we must determine whether the appeal before us is timely. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 ... shall be filed within 30 days after the entry of the order from which the appeal is taken.”). As noted above, the court suggests that the appeal should have been filed after the entry of the December 21, 2016 order or the February 1, 2017 order, but it was not filed until March 10, 2017. However, our review reveals that these orders were not final. See Pa.R.A.P. 341 (a) (stating “an appeal may be taken as of right from any final order of a ... trial court”); (b) (“A final order is any order that ... disposes of all claims and of all parties!.]”). Despite lacking finality, we are aware that Mother could have appealed after their entry pursuant to the holding in Jones v. Trojak, 535 Pa. 95, 634 A.2d 201

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S.N.M. v. M.F., 175 A.3d 333 (Pa. Ct. App. 2017).

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