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In re A.B.

Superior Court of Pennsylvania

October 10, 2013

IN THE INTEREST OF: A.B., a Minor
v.
J.L.B., M. V., D.M., Appellees APPEAL OF: C.L.G., Maternal Grandmother C.L.G., Appellant
v.
DAUPHIN COUNTY SOCIAL SERVICES FOR CHILDREN AND YOUTH, Intervenor

NON-PRECEDENTIAL DECISION

Appeal from the Order entered April 11, 2013, in the Court of Common Pleas of Dauphin County, Juvenile Division, at No(s): CP-22-DP-000034-2012

Appeal from the Order entered May 1, 2013, in the Court of Common Pleas of Dauphin County, Juvenile Division, at No(s): 2010-CV-14738-CU

BEFORE: BENDER, SHOGAN, and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

C.L.G. ("Grandmother"), the maternal grandmother of the subject minor child, A.B. ("Child") (DOB 11/28/05), appeals from the Order entered on April 11, 2013, in which the trial court denied her Motion for reconsideration of its January 28, 2013 custody Order involving Child. Grandmother also appeals the trial court's May 1, 2013 Order, in which it denied reconsideration of the court's February 7, 2013 Order, which precluded Grandmother from participating in a dependency proceeding involving Child. However, Grandmother's appeals were not timely filed and, accordingly, we are constrained to quash Grandmother's appeals.

On November 12, 2010, Grandmother filed a Complaint for custody of Child and Child's minor brother, M.B. (born in October of 2004) (collectively, the "Children"), as against the mother of the Children, J.B. ("Mother"). The trial court entered an Order joining as defendants M.B.'s father, M.V., and Child's father, D.M. In an Order entered on July 11, 2011, the trial court awarded Grandmother custody of Child and M.B. The trial court permitted Mother and M.V. visitation, but denied D.M. visitation.

The Dauphin County Children and Youth Services Agency ("DCCYS" or the "Agency") became involved in the matter when, on May 2012, the Agency filed a dependency petitions for the Children and their younger sibling. On June 4, 2012, the trial court entered separate orders adjudicating the Children dependent and removing Children from Grandmother's care. The trial court conducted a permanency review hearing in November 2012. Thereafter, on December 4, 2012, the trial court entered an Order requiring Child to remain in the legal and physical custody of the Agency, and releasing M.B. from the custody of the Agency.

On January 25, 2013, the Agency filed a Motion to intervene in the custody proceedings involving Child. The Agency's Motion also sought to vacate the trial court's July 11, 2011 custody Order, and listed Grandmother on the Certificate of Service. On January 28, 2013, the trial court entered an Order granting the Agency's Motion to intervene in the custody proceeding, and vacating the custody Order granting custody of the Children to Grandmother. The record reflects that the trial court served Notice of its Order on Grandmother. Grandmother did not file an appeal from the January 28, 2013 custody Order.

On February 4, 2013, the Agency filed a Motion to preclude Grandmother from participating as a party in the dependency proceeding involving Child. The Motion listed Grandmother on the Certificate of Service. On February 7, 2013, the trial court granted the Agency's Motion, entering an Order that precluded Grandmother from participating in the dependency proceeding. The trial court's Order reflects that Grandmother was provided with Notice of the Order. Grandmother did not file an appeal from the February 7, 2013 dependency Order.

On February 12, 2013, Grandmother filed a Motion to vacate the trial court's January 28, 2013 Order in the custody proceeding, and a Motion to vacate and reconsider the trial court's February 7, 2013 Order in the dependency proceeding. In the dependency matter, on February 14, 2013, the trial court entered an Order scheduling an in-chambers conference for February 19, 2013. The trial court's Order did not expressly grant reconsideration of the February 7, 2013 Order.

On April 11, 2013, the trial court entered an Order denying Grandmother's Motion to vacate and reconsider the custody Order of January 28, 2013. On May 1, 2013, the trial court entered an Order denying Grandmother's Motion to vacate and reconsider the February 7, 2013 dependency Order. Grandmother filed Notices of Appeal and Concise Statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), in both the matters on May 10, 2013.[1]

In her appeal from the January 28, 2013 Order in the custody proceeding, Grandmother raises the following issue:

Did the lower court deprive [Grandmother] of due process by vacating a prior court custody order in contravention of Rule 208.3(a) of the Pennsylvania Rules of Civil Procedure, Pa.R.[C.P.] 208.3(a), thereby divesting [Grandmother] of physical and legal custody for her grandchildren without prior notice and an opportunity to be heard?

Grandmother's Brief in Custody Matter at 4.

In her appeal from the February 7, 2013 Order in the dependency proceeding, Grandmother raises the following issue:

Did the lower court deprive [Grandmother] of due process by precluding her participation in dependency proceedings without a hearing, thereby divesting her of other rights accorded to the legal custodian of a dependent child under the Juvenile Act, [42 Pa.C.S.A.] §§ 6301-6365, all without apparent regard for the best interests of the child?

Grandmother's Brief in Dependency Matter at 4.

The Agency argues that Grandmother's appeals were untimely filed, as Grandmother had failed to file her appeals within thirty days of entry of the underlying final Orders of January 28, 2013, and February 7, 2013. Rather, Grandmother had filed her Notices of appeal within 30 days of the orders denying her motions for reconsideration. Grandmother counters that she had believed that the trial court's scheduling of an in-chambers conference on her motions for reconsideration acted as a grant of reconsideration for purposes of Pa.R.A.P. 1701(b)(3). See Reply Brief of Appellant at 6, ¶ 22.

The filing of a motion for reconsideration does not toll the thirty-day appeal period, unless the trial court enters an order expressly granting reconsideration within thirty days of the entry of the appealable order. Cheatem v. Temple Univ. Hosp., 743 A.2d 518, 520 (Pa.Super. 1999). An order setting a briefing schedule or a hearing date is not an express grant of reconsideration. Id. at 520-21; see also Estate of Haiko v. McGinley, 799 A.2d 155, 159 (Pa.Super. 2002) (stating that an aggrieved party may appeal the underlying order within thirty days after the entry of the order granting reconsideration and an appeal from such an order will be deemed timely). "Our [C]ourt has repeatedly held that appeals filed from orders denying reconsideration are improper and untimely." Valentine v. Wroten, 580 A.2d 757, 758 (Pa.Super. 1990) (emphasis added).

Regardless, in her Reply Brief, Grandmother argues that the trial court's underlying orders were procedurally flawed under the Pennsylvania Rules of Civil Procedure and the Dauphin County Local Rules of Civil Procedure, with respect to notice and hearings on her Motions, such that this Court should grant her an appeal nunc pro tunc. In support of her argument, Grandmother relies on West Penn v. Goddard, 333 A.2d 909 (Pa. 1975). Grandmother's contention lacks merit. In Cheatem, this Court, citing Goddard, concluded that it lacked jurisdiction to excuse the appellant's error in filing an untimely notice of appeal.[2] Cheathem, 743 A.2d at 521.

Significantly, the trial court did not expressly grant reconsideration of the Orders of January 28, 2013, and February 7, 2013. Accordingly, as Grandmother's appeals were untimely filed, we are constrained to quash the appeals for a lack of subject matter jurisdiction.

Appeals quashed.


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