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ADAM LAWRENCE GIVENS v. AUSTIN GIVENS (10/01/82)

filed: October 1, 1982.

ADAM LAWRENCE GIVENS, MARK PATRICK GIVENS, SUZANNE R. GIVENS, APPELLANTS
v.
AUSTIN GIVENS



NO. 224 PITTSBURGH, 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, at No. 1535 of 1973.

COUNSEL

Timothy G. Wojton, Pittsburgh, for appellants.

No appearance entered nor briefs submitted on behalf of appellees.

Beck, Johnson and Popovich, JJ. Popovich, J., files a dissenting opinion.

Author: Beck

[ 304 Pa. Super. Page 572]

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.*fn1 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.*fn2 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).*fn3

[ 304 Pa. Super. Page 573]

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."*fn4 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]court 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.

[ 304 Pa. Super. Page 574]

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.*fn5 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).*fn6 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.*fn7 When a final

[ 304 Pa. Super. Page 575]

    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.*fn8

This appeal is accordingly ...


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