Valentine v. Wroten

• Decision Date: 01 October 1990
• Citation: 397 Pa.Super. 526,580 A.2d 757
• Parties: Leona VALENTINE, Appellant, v. Anthony WROTEN, Appellee.
• Court: Pennsylvania Superior Court

Page 757

580 A.2d 757

397 Pa.Super. 526

Leona VALENTINE, Appellant, v. Anthony WROTEN, Appellee.

Superior Court of Pennsylvania.

Argued Jan. 10, 1990.

Filed July 17, 1990.

Reargument Denied Oct. 1, 1990.

Margaret Klaw, Philadelphia, for appellant.

Before DEL SOLE, MONTEMURO and TAMILIA, JJ.

DEL SOLE, Judge.

The appellant seeks review of the trial court's refusal to entertain a request for temporary custody of minor children at the time appellant sought a protection from abuse order. The trial court refused appellant's request on February 8, 1989 and appellant filed a petition for reconsideration of that order. The trial court denied reconsideration on April 7, 1989 and appellant filed a notice of appeal following that denial. We find that this appeal has been untimely filed and, therefore, this court does not have jurisdiction. Thus, we quash this appeal.

In this case, following the February 8th order and within thirty days, a notice of appeal and a petition for reconsideration were filed. The trial judge did not within that thirty-day period grant reconsideration. Rather, the trial judge issued a rule to show cause why reconsideration should not be granted. Unfortunately, when this rule was issued counsel withdrew the pending appeal. The actions of the trial court in this case were not sufficient to invoke the application of Pa.R.A.P. 1701 and, further, as this court has held en banc:

The granting of a rule to show cause is not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring. Hook v. Athens Area School District, 50 Pa.Cmwlth.Ct. 420, 413 A.2d 1151, 1153 (1980).

Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987). Allocatur denied. 518 Pa. 626, 541 A.2d 1138 (1988).

The fact that the trial court established a briefing schedule, hearing date and issuing a rule to show cause did not amount to an agreement to reconsider. Rule 1701 is very clear. Even though an appeal has been filed, a trial court may, within thirty days of the final appealable order expressly grant reconsideration. If the trial court expressly grants reconsideration, it has extended the time for decision. As we said in Luckenbaugh:

A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment [order]. Pa.R.A.P. 1701, 42 Pa.C.S.A. See: Luckenbaugh, id., at 523 A.2d 401.

To find that the court does not have jurisdiction is not a harsh technical application of rules, particularly in this case. Here, the appellant has the relief which she sought. Namely, she has custody of her children. She, through amicus, is seeking review of the trial court's order as it would affect future temporary custody matters arising in Protection From Abuse Act cases.

Our court has repeatedly held that appeals filed from orders denying reconsideration are improper and untimely. Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). The appeal in this case should have been filed within thirty days from the February 7, 1989 order or, reconsideration should have expressly been granted within thirty days of that order. Since the untimely filing of the appeal goes to the jurisdiction of this court, we have no choice but to quash the appeal. State Farm Mutual Automobile Insurance Co. v. Schultz, 281 Pa.Super. 212, 421 A.2d 1224 (1980).

Appeal quashed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge, dissenting:

I vigorously dissent to the holding by the majority to quash this appeal as being untimely as it elevates form over substance and trivia over essence. The majority acknowledges the correctness of the dissent as it deals with the issues on the merits, and aside from verbalizing the routine standard for quashing an appeal, fails to respond to the pressing necessity, in justice to resolve the issues presented by this case, when the technical error was one that was excusable on any basis, either in law or common sense.

This is an appeal from the April 7, 1989 Order of court denying appellant's motion for reconsideration of the court's earlier Order denying appellant temporary custody of her minor children. The facts are as follows. On February 8, 1989, the trial court entered a temporary ex parte protection Order under section 10185 of the Protection From Abuse Act, 35 P.S. § 10181 et seq. (Act), which enjoined appellee from physically striking, harassing, threatening or using foul language toward appellant and her children and evicted him from appellant's residence. The Order denied appellant's request for temporary custody of her children. At the subsequent hearing on February 24, 1989, the trial court denied appellant's request to amend the temporary Order to include temporary custody of her children and suggested appellant's proper recourse was to petition for an emergency custody Order. That afternoon, appellant received an emergency custody Order. On March 8, 1989, appellant filed a petition for reconsideration of the denial of the temporary ex parte custody Order, which the trial court denied on April 7, 1989. Appellant filed a petition to amend the Order to include the language prescribed by 42 Pa.C.S. § 702(b) so as to enable her to appeal the April 7, 1989 Order. On May 1, 1989, appellant and appellee entered into an Order by consent extending the terms of the temporary protection Order through April 30, 1990 and confirming temporary custody in appellant. On May 4, 1989, the trial court denied appellant's petition to amend because it found the issue moot in view of the Order by consent. Appellant now appeals the trial court's April 7, 1989 Order.

Appellant contends the trial court erred in denying her petition for reconsideration. At the time appellant filed her petition for reconsideration, the issue of temporary custody was already moot because the Motions Court had already granted an emergency petition for custody on February 24, 1989 thereby resolving the issue. Further, the issue of temporary custody continues to be moot even now because the parties resolved, through an agreement, both the abuse and protection issue and the temporary custody issue (See May 1, 1989 Order by Consent, Tucker, J.). However, this does not resolve the issue for purposes of this appeal. There is a general rule that Superior Court does not consider questions which have been rendered moot by our decisions nor do we consider questions which may not arise upon remand "unless exceptional circumstances exist or questions of great public importance are involved." Ellis v. Chicago Bridge and Iron Co., 376 Pa.Super. 220, 236, n. 16, 545 A.2d 906, 914-15, n. 16 (1988), quoting Simmons v. St. Clair Memorial Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984).

The general rule is that an actual case or controversy must exist at all stages of appellate review. There are, however, exceptions to this mootness doctrine. One such exception is when the question presented is one of great public importance. Another exception is when the question is capable of repetition yet escaping judicial review. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445 (1984); Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). Because this issue is one of great public importance and, as is apparent here, it is capable of frequent repetition yet escaping judicial review, I believe, in light of the above holdings, it is imperative that we review the issue presented on its merits.

Upon reviewing the merits of appellant's petition for reconsideration, I believe there is reason under the facts of this case and the revision in the Act since the time this Court construed it in Rosenberg v. Rosenberg, 350 Pa.Super. 268, 504 A.2d 350 (1986), to make a temporary award of custody. The Act was enacted to provide immediate protection from physical abuse and was intended to provide ancillary relief regarding minor children in abuse actions.

The Act, as interpreted correctly by Rosenberg, held that section 10186(a)(4) was intended to provide temporary custody and to establish temporary visitation rights with regard to minor children. In that case, this Court specifically disapproved of a procedure whereby subsequent orders were entered awarding permanent custody and visitation of the children. The most recent revisions of section 10186, Relief, subsection (a)(4), have amplified and clarified the extent to which the court in a protection from abuse case can award temporary custody and visitation. This section now provides:

A defendant shall not be granted custody or partial custody where it is alleged in the petition, and the court finds after a hearing ... [he has] abused the ... children ... [custody may not be awarded when he] has been convicted of violating 18 Pa.C.S. § 2904 (relating to interference with custody of children) within two ... years prior to the filing of petition for protection order.... If a [defendant] ... has partial, shared or full custody of the minor children ... by order of court or written agreement of the parties, the custody shall not be disturbed or changed unless the court finds that the defendant is likely to inflict abuse upon the children or to remove the children from the jurisdiction of the court prior to the hearing under section 5(a). Nothing in this paragraph shall bar either party from filing a petition for custody under 23 P.S. Ch. 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.

Id. (footnote omitted).

The clear intent of this section is to maintain the status quo as to the custody of children unless it is alleged and proven that they are in danger of physical or sexual abuse or may be removed from the jurisdiction prior to a hearing pursuant to a petition alleging abuse. It clearly appears the intent of the...