Miller v. Steinbach

• Decision Date: 17 July 1996
• Citation: 681 A.2d 775,452 Pa.Super. 194
• Parties: Kenneth M. MILLER, Appellant, v. Jennifer L. STEINBACH, Appellee.
• Court: Pennsylvania Superior Court

Page 775

681 A.2d 775

452 Pa.Super. 194

Kenneth M. MILLER, Appellant, v. Jennifer L. STEINBACH, Appellee.

Superior Court of Pennsylvania.

Argued May 1, 1996.

Filed July 17, 1996.

Leonard A. Grence, Butler, for appellant.

J. Stevenson Suess, Butler, for appellee.

Before POPOVICH, EAKIN and HESTER, JJ.

POPOVICH, Judge:

This case involves an appeal from the September 27, 1995 order of the Court of Common Pleas of Butler County denying appellant's request to reconsider an order entered in the Court of Common Pleas of Centre County, whereby he was ordered to pay the full cost of his psychological evaluation and half the cost of his daughter's psychological evaluation needed for a determination regarding partial custody. We find that the order in question is interlocutory, and, accordingly, we quash this appeal.

The record reflects the occurrence of the following events: Appellant filed a complaint seeking partial custody and visitation rights to his minor child. In the complaint, he alleged that he was the natural father of the minor child born out of wed-lock to Jennifer L. Steinbach. The child and Ms. Steinbach reside with her present husband, Dean Steinbach.

To resolve appellant's claims regarding custody, the Court of Common Pleas of Centre County held a hearing on July 6, 1994. Prior to the hearing, Ms. Steinbach filed a petition for psychological evaluations. Pursuant to Pa.R.C.P. 1915.8, the court approved this petition and ordered appellant to pay for the full cost of his psychological evaluation and half the cost of his daughter's psychological evaluation. ¹ The court then awarded appellant visitation rights for his daughter, and indicated that it would not make a determination regarding partial custody until the psychological evaluations were received and a full hearing was held.

On September 27, 1995, appellant filed in the Court of Common Pleas of Butler County a petition for special relief/reconsideration of the Court of Common Pleas of Centre County's order requiring him to pay for the psychological evaluations. After speaking on the telephone with the Judge from Centre County, the Judge from Butler County denied appellant's petition. This appeal followed and appellant was granted the right to proceed in forma pauperis.

Intertwined with appellant's request that we review the court's order requiring him to pay for the psychological evaluations is the appealability of the order in question. We must consider appellee's contention that the lower court's order is interlocutory and not immediately appealable.

"It is clear that an appeal will lie only from a final order unless an appeal is otherwise permitted by statute or rule of court." Schwartz v. Schwartz, 411 Pa.Super. 282, 601 A.2d 349, 351 (1992) (citations omitted). "An order is generally not a final order unless it serves to put the litigant out-of-court either by ending the litigation or disposing of the case entirely." Grove North America v. Arrow Lift, 421 Pa.Super. 12, 617 A.2d 369, 372 (1992) (citations omitted). The order in this case requiring appellant to pay for the psychological evaluations does not end the litigation or dispose of the entire case. The partial custody action remains unfinished because the lower court has not made a determination regarding custody, that is, appellant has neither been granted nor denied partial custody of his minor child. Rather, the order in question merely directed appellant to submit to and pay for psychological evaluations pursuant to Pa.R.C.P. 1915.8(a) and (e).

Under Rule 1915.8, a court may order the child or a party to submit to an evaluation by an appropriate expert and the court may assess the cost of the examination to any or all of the parties. The Comment to Rule 1915.8 indicates the following:

In order to make a proper determination in a child custody case, the court often requires information which can only be supplied by an expert evaluation of the parties and the subject child. The rule also provides a range of sanctions which the court may impose for failure to comply with an order directing evaluations, and provides that a petition for contempt for failure to comply with an order entered upon this rule is to be treated in an expedited fashion.

Here, appellant's appeal is premature. At this point, he has not disobeyed the lower court's order directing him to pay for the psychological evaluations, he has not been sanctioned in any manner by the lower court, and, more importantly, he has not been denied partial custody of his daughter. The lower court's order does not effectively put him out of court. See Grove North America, supra. Accordingly, the order is interlocutory and not a final order.

Under Pennsylvania law, an appeal may be taken from an interlocutory order as of right (Pa.R.A.P.311), by permission (Pa.R.A.P. 313, 1301 et seq.), or from a collateral order (Pa.R.A.P.313). After a careful examination of Pa.R.A.P. 311, we conclude that appellant's appeal of the interlocutory order may not be taken as of right. ² We further conclude that appellant's appeal may not be taken by permission.

"[A]n interlocutory appeal may be taken by permission pursuant to Chapter 13 of the Rules of Appellate Procedure." Patton v. Hanover Insurance Co., 417 Pa.Super. 351, 612...