J-A23043-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.L.B., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

S.A.T., :

:

Appellee : No. 395 WDA 2014

Appeal from the Order entered on January 28, 2014

in the Court of Common Pleas of Cambria County,

Civil Division, No. 2008-3924

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 10, 2014

J.L.B. (“Father”), pro se, appeals from the Order entering his Praecipe 

for Entry of an Adverse Order. We reverse and remand. 

Father and S.A.T. (“Mother”) are the parents of a daughter, R.E.B. 

(“Child”), born on February 5, 2008. Father and Mother never married. 

Father and Mother briefly resided together in Johnstown after Child’s birth. 

Mother moved out in August 2008. Thereafter, Father filed a Complaint for 

Custody. After hearings, the trial court granted the parties shared legal 

custody, primary physical custody to Mother and partial physical custody to 

Father. This Court affirmed the trial court’s Order. See J.L.B. v.
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S.A.T., 996 A.2d 532 (Pa. Super. 2010) (unpublished memorandum).1

The trial court set forth the relevant procedural history as follows:

[On February 25, 2013, Mother filed a Notice of Proposed 

Relocation.] Domestic Relations Hearing Officer David Beyer, 

Esq., [“Mr. Beyer”] was assigned to conduct hearings and 

prepare a report with recommendations relative to [Mother’s] 

relocation request to move from Cambria County to Blair County 

to reside with her fiancé and [Child].

Mr. Beyer conducted two days of hearings on May 3, 2013, and 

July 25, 2013. On July 26, 2013, Mr. Beyer issued an [Interim] 

Report stating that the parties agreed to incorporate the 

relocation request into the custody evidentiary hearing testimony 

and that more testimony would be needed to complete the 

record. The reason for the interim recommendation – which 

found that [Child’s] best interest would be served by permitting 

relocation with [] [M]other to Bellwood, Pennsylvania – was, in 

part, to permit [] [M]other to provide her current landlord with 

notice of the move, and to begin enrolling [] [C]hild in her new 

school district. [On August 1, 2013, the trial court entered an 

Interim Order allowing Mother to relocate based upon Mr. 

Beyer’s interim recommendation.]

[On October 2, 2013, Father filed a Praecipe to Cancel the 

Hearing that was scheduled for October 4, 2013, and schedule 

the matter for pre-trial conference before a trial judge.] 

Following the final hearing on October 4, 2013, Mr. Beyer filed 

the “Report of Hearing Officer” on October 21, 2013, 

encompassing the custody and relocation issues, recommending 

that the [trial c]ourt affirm [Mother’s] relocation request as a 

final order, and recommending, inter alia, shared legal custody, 

primary physical custody of [Child] with [] [M]other, and partial 

[physical] custody of [Child] with [] [F]ather. The parties were 

advised that exceptions must be filed within twenty (20) days. 

Neither party filed exceptions within 20 days.

 

1 Subsequently, the parties filed Petitions that are not relevant to this 

appeal. However, we note that Judge Joseph Leahey has recused himself 

from this case. Further, Father asked President Judge Timothy P. Creany to 

recuse based upon various accusations. Father’s request was denied.
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On November 12, 2013, twenty-two (22) days after [Mr. Beyer] 

filed his Report, [Father], pro se, filed a document entitled 

“Letter re: No Exceptions to the Hearing Officer’s 

Recommendations.” 

[Father], pro se, then filed a “Petition for Emergency Special 

Relief” on January 2, 2014. The document, paragraphs 3-9, 

berates witnesses to the domestic proceedings and members of 

the Cambria County Judiciary and Bar. Paragraphs 10 through 

17 challenge [Mr.] Beyer’s procedures and scheduling relative to 

the custody/relocation hearings. Paragraphs 18 through 25 

berate the [trial c]ourt.

On January 7, 2014, the [trial c]ourt issued an Order treating 

[Father’s] “Petition for Emergency Special Relief” as a petition 

for review of the [Mr. Beyer’s] Report. [A h]earing was 

scheduled for January 29, 2014, but continued until March 12, 

2014, upon request of [Father’s counsel.]

On January 28, 2014, [Father] filed a “Praecipe for Entry of an 

Adverse Order.” [Father] cites Pa.R.A.P. 301(e) (Emergency 

Appeals) as authority for the filing.

***

[Father] filed [a] Notice of Appeal ... on February 27, 2014, and 

the case was docketed as a Children’s Fast Track appeal on 

March 10, 2014. At the time the appeal was filed, [Mr. Beyer’s] 

Report and Recommendations had not yet been signed [or] 

adopted by the [trial c]ourt, and designated as a Final Order.

At the hearing on March 12, 2014, the [trial c]ourt, on the 

record, indicated that it intended to affirm the [Mr. Beyer’s] 

Report and Recommendation. No written Order issued[] 

because ... due to the filing of [the] instant Fast Track Superior 

Court appeal, [the trial court] lacked jurisdiction to affirm the 

Report and Recommendations. [The trial court also allowed 

Father’s counsel to withdraw as counsel on March 12, 2014.]

Trial Court Opinion, 3/14/14, at 1-3 (footnote omitted).

On appeal, Father raises the following questions for our review:

1. Did the trial court fail to provide due process?
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A. Did the trial court fail to follow the applicable rules for 

custody and/or relocation? Is the trial court in contempt of 

court?

B. Did the [trial court] err by failing to dismiss the matter?

C. Is the trial court in contempt of the rules of custody?

D. Did [Mr. Beyer] lack subjective jurisdiction?

E. Did the trial court show bias against Father and/or for 

Mother?

F. Is the only remedy a new trial?

2. Did the trial court err in granting [] [M]other primary custody 

and allowing relocation as being in the best interest of [Child 

in] light of the evidence and considering the applicable 

factors?

3. Did the trial court err by not ordering a custody and/or 

psychological evaluation?

4. Did the trial court err by not awarding [Father] counsel fees?

Brief for Appellant at 5.

Before addressing Father’s claims, we must determine whether his 

appeal is properly before us. The trial court found that no final order was 

entered, as it did not adopt or enter Mr. Beyer’s Report and 

Recommendation as an order of the court. Trial Court Opinion, 3/14/14, at 

3. The trial court further found that it did not grant permission to appeal 

any order and that there was no interlocutory order entered, which could be 

appealed as of right. Id. at 4. The trial court also stated that Father’s 

appeal from the Praecipe for Entry of an Adverse Order did not fulfill the 
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requirements under Pa.R.A.P. 301(e) to be considered an appealable order. 

Id. at 2-3, 4.

Appellate Rule 301(e) provides the following:

(e) Emergency appeals. Where the exigency of the case is 

such as to impel an immediate appeal and the party intending to 

appeal an adverse action is unable to secure the formal entry of 

an appealable order pursuant to the usual procedures, the party 

may file in the lower court and serve a praecipe for entry of an 

adverse order, which action shall constitute entry of an 

appealable order for the purposes of these rules. The 

interlocutory or final nature of the action shall not be affected by 

this subdivision.

Pa.R.A.P. 301(e).

By its plain terms, this subsection contemplates: 1) an exigency 

that not merely authorizes, but “compels” an immediate appeal; 

2) an actual “adverse action” by the tribunal below which is the 

proper subject of an immediate appeal, but which has not yet 

been recognized by the formal entry of an order; and 3) an 

“inability” (not a mere disinclination) on the part of the 

aggrieved party to “secure” the formality of entry of the order by 

“usual procedures.” The Rule thus contemplates an existing, 

appealable adverse action, and exigent circumstances; with the 

“mere formality” of the entry of the order missing; where normal 

channels of seeking entry of the order have been attempted, to 

no avail.

Commonwealth v. Abdul-Salaam, 996 A.2d 482, 487 (Pa. 2010).

Here, the trial court entered an Interim Order on August 1, 2013, 

which allowed Mother to relocate with Child. Thereafter, on October 21, 

2013, Mr. Beyer entered his recommendation that Mother’s relocation 

request be granted. No exceptions were filed and the trial court did not take 

any action until after January 2, 2014, when Father filed the “Petition for 

Emergency Special Relief.” Following Father’s Rule 301(e) Praecipe, the trial 
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court indicated that it would affirm the Mr. Beyer’s recommendation, but 

would not enter an order due to the filing of this appeal. 

 This case involved Mother’s request for custody and relocation of 

Child, which the court did not act on for over a year. Further, while Mr. 

Beyer had recommended that Mother’s request be granted, the trial court, 

while apparently agreeing with the recommendation, did not enter any order 

to this effect. Moreover, as noted infra, the trial court failed to follow the 

relevant rules and statutes in addressing Mother’s Petition. Based upon the 

facts of this specific case, and in the interests of preserving judicial 

resources, we conclude that Father met the requirements of Rule 301(e).2 

Thus, we will address the merits of Father’s appeal.

In his first claim, Father contends that the trial court failed to afford 

him due process in addressing Mother’s Petition. Brief for Appellant at 17. 

Father argues that the trial court failed to hold a hearing before a judge on 

Mother’s Petition, as required by the applicable rules for custody and 

relocation. Id. at 18-20, 23; see also id. at 26-28 (wherein Father argues 

 

2 We note that Pennsylvania Rule of Appellate Procedure 905(a)(5) provides 

that a premature appeal may be treated as proper where a final order has 

been entered. Pa.R.A.P. 905(a)(5). As noted above, the trial court 

indicated that it would affirm the Mr. Beyer’s Report and Recommendation, 

but would not enter an order due to the fact that this appeal was pending. 

Under Pennsylvania Rule of Appellate Procedure 1701(a)(6), the trial court 

may “[p]roceed further in any matter in which a non-appealable 

interlocutory order has been entered, notwithstanding the filing of a notice 

of appeal ... .” Pa.R.A.P. 1701(a)(6). Based upon our conclusion that 

Father’s appeal met the requirements of Rule 301(e), and in the interests of 

preserving judicial resources, we need not remand the matter to the trial 

court to enter a final order.
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that Mr. Beyer did not have jurisdiction to hear the merits of Mother’s 

Petition). Father further argues that the trial court failed to provide a 

prompt decision on Mother’s Petition. Id. at 21-23. Father asserts that the 

trial court was in contempt for failing to follow the applicable rules and 

statutes. Id. at 24-26. Father claims that he is entitled to a new trial. Id. 

at 28-29.

Initially, we observe that the Child Custody Act (“Custody Act”), 23 

Pa.C.S.A. §§ 5321 to 5340, is applicable. See C.R.F. v. S.E.F., 45 A.3d 

441, 445 (Pa. Super. 2012) (holding that, if the custody evidentiary 

proceeding commences on or after the effective date of the Custody Act, 

i.e., January 24, 2011, the provisions of the Act apply). With any custody 

case decided under the Custody Act, the paramount concern is the best 

interests of the child. See 23 Pa.C.S.A. §§ 5328 and 5338. When 

addressing a relocation petition, the trial court must address the best 

interests of the child pursuant to all of the factors listed at 23 Pa.C.S.A. § 

5328(a) and all of the relocation factors listed at 23 Pa.C.S.A. § 5337(h). 

See A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014); see also 23 

Pa.C.S.A. § 5328(a) (stating that “[i]n ordering any form of custody, the 

court shall determine the best interest of the child by considering all relevant 

factors, giving weighted consideration to those factors which affect the 

safety of the child ....”); id. § 5337(h) (stating that “[i]n determining 

whether to grant a proposed relocation, the court shall consider the following 
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factors, giving weighted consideration to those factors which affect the 

safety of the child ....”); id. § 5323(d) (stating that the court must delineate 

the reasons for its custody decision in open court or in a written order or 

opinion). 

Further, with regard to relocation, section 5337(g) states the 

following:

(g) Hearing.--

(1) Except as set forth in paragraph (3), the court shall hold an 

expedited full hearing on the proposed relocation after a timely 

objection has been filed and before the relocation occurs. 

(2) Except as set forth in paragraph (3), the court may, on its 

own motion, hold an expedited full hearing on the proposed 

relocation before the relocation occurs. 

(3) Notwithstanding paragraphs (1) and (2), if the court finds 

that exigent circumstances exist, the court may approve the 

relocation pending an expedited full hearing.

23 Pa.C.S.A. § 5337(g) (emphasis added); see also Pa.R.C.P. 1915.17(d) 

(stating that “[t]he procedure in any relocation case shall be expedited. 

There shall be no requirement for parenting education or mediation prior to 

an expedited hearing before a judge.”) (emphasis added).

Moreover, Pennsylvania Rule of Civil Procedure 1915.4, which provides 

for the prompt disposition of custody cases, states, in relevant part, the 

following:

(a) Initial Contact With the Court. Depending upon the 

procedure in the judicial district, the parties’ initial in-person 

contact with the court (including, but not limited to a conference 

with a conference officer pursuant to Rule 1915.4-2, a 
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conference with a judge, conciliation, mediation and/or 

class/seminar) shall be scheduled to occur not later than 45 days 

from the filing of a complaint or petition.

(b) Listing Trials Before the Court. Depending upon the 

procedure in the judicial district, within 180 days of the filing of 

the complaint either the court shall automatically enter an order 

scheduling a trial before a judge or a party shall file a praecipe, 

motion or request for trial, except as otherwise provided in this 

subdivision. If it is not the practice of the court to automatically 

schedule trials and neither party files a praecipe, motion or 

request for trial within 180 days of filing of the pleading, the 

court shall, sua sponte or on motion of a party, dismiss the 

matter unless a party has been granted an extension for good 

cause shown, or the court finds that dismissal is not in the best 

interests of the child. The extension shall not exceed 60 days 

beyond the 180 day limit. A further reasonable extension may 

be granted by the court upon agreement of the parties or when 

the court finds, on the record, compelling circumstances for a 

further reasonable extension. If an extension is granted and, 

thereafter, neither party files a praecipe, motion or request for 

trial within the time period allowed by the extension, the court 

shall, sua sponte or on the motion of a party, dismiss the matter 

unless the court finds that dismissal is not in the best interests 

of the child. A motion to dismiss, pursuant to this rule, shall be 

filed and served upon the opposing party. The opposing party 

shall have 20 days from the date of service to file an objection. 

If no objection is filed, the court shall dismiss the case. Prior to 

a sua sponte dismissal, the court shall notify the parties of an 

intent to dismiss the case unless an objection is filed within 20 

days of the date of the notice.

(c) Trial. Trials before a judge shall commence within 90 days 

of the date the scheduling order is entered. Trials and hearings 

shall be scheduled to be heard on consecutive days whenever 

possible but, if not on consecutive days, then the trial or hearing 

shall be concluded not later than 45 days from commencement.

(d) Prompt Decisions. The judge’s decision shall be entered 

and filed within 15 days of the date upon which the trial is 

concluded unless, within that time, the court extends the date 

for such decision by order entered of record showing good cause 

for the extension. In no event shall an extension delay the entry 
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of the court’s decision more than 45 days after the conclusion of 

trial.

Pa.R.C.P. 1915.4.3

The applicable rules and statutes plainly require the trial court to hear 

any petitions regarding custody and relocation of a child. See 23 Pa.C.S.A. 

§ 5337(g); Pa.R.C.P. 1915.17(d). Further, Rule 1915.4 directs courts to 

hold a hearing on the petition and provide a prompt decision. See Pa.R.C.P. 

1915.4(b), (c); see also Pa.R.C.P. 1915.4, cmt. (stating “that the interests 

of children who are the subjects of custody litigation would best be served 

by a requirement that the litigation be concluded within specific time 

frames.”). Here, the trial court completely disregarded the relevant rules 

and statutes when it directed Mr. Beyer to conduct hearings on Mother’s 

 

3 We note that subsection (b) of Rule 1915.4 was modified, with an effective 

date of June 25, 2013, which is after Mother’s Petition was filed in this case. 

Subsection (b) previously stated the following:

(b) Listing Trials Before the Court. Depending upon the 

procedure in the judicial district, within 180 days of the filing of 

the complaint either the court shall automatically enter an order 

scheduling a trial before a judge or a party shall file a praecipe, 

motion or request for trial, except as otherwise provided in this 

subdivision. If it is not the practice of the court to automatically 

schedule trials and neither party files a praecipe, motion or 

request for trial within 180 days of filing of the pleading, the 

court shall dismiss the matter unless the moving party has been 

granted an extension for good cause shown, which extension 

shall not exceed 60 days beyond the 180 day limit. A further 

reasonable extension may be granted by the court upon 

agreement of the parties or when the court finds, on the record, 

compelling circumstances for a further reasonable extension.

Pa.R.C.P. 1915.4(b) (effective until 6/25/13).
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relocation Petition and did not provide a prompt decision as required under 

section 5337(g) and Rules 1915.17(d) and 1915.4. See Lachat v. 

Hinchcliffe, 769 A.2d 481, 487 (Pa. Super. 2001) (stating that the trial 

court abuses its discretion if it does not follow proper legal procedure).

We note that Father seeks dismissal of the custody matter, under Civil 

Rule 1915.4(b), based upon the trial court’s failure to hold a trial on the

Petition. Brief for Appellant at 22; see also Harrell v. Pecynski, 11 A.3d 

1000, 1004-05 (Pa. Super. 2011) (holding that the trial court properly 

dismissed a custody action, sua sponte, where the parties failed to comply 

with the prior version of Rule 1915.4(b)); Dietrich v. Dietrich, 923 A.2d 

461, 465-66 (Pa. Super. 2007) (same). While the prior version of Rule 

1915.4(b) was in effect at the time Mother filed the Petition, and allows for

an outright dismissal of the custody action, we decline to dismiss the 

proceedings in this case. Here, Mother’s Petition was filed in February 2013, 

and the trial court entered an Interim Order allowing Mother to relocate 

Child in August 2013, pending final disposition. Thus, to avoid any further 

delay and to promptly determine the best interests of Child, and because 

Child has already been relocated, we will remand the matter to the trial 

court to address Mother’s Petition. 

Based upon the foregoing, we remand this matter to the trial court and 

direct it to hold a trial on Mother’s Petition to relocate Child in compliance 

with the applicable rules and statutes. The trial court must ignore any 
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evidence presented before Mr. Beyer and any recommendations made by 

him. Further, the trial court must address each of the factors at sections 

5328(a) and 5337(h) and promptly delineate its reasons for its decision in 

open court or in a written opinion or order. See Pa.R.C.P. 1915.4(d).4

Based upon our disposition of Father’s first claim, we decline to 

address his remaining claims.

Order reversed. Case remanded for further proceedings consistent 

with this Memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2014

 

4 Based upon the record before this Court, Father appears to have a distrust 

in the judges on the Court of Common Pleas of Cambria County. See, e.g.,

Petition for Special Relief, 1/2/14, at 3-4 (unnumbered). Further, the trial 

court clearly contravened the relevant rules and statutes by assigning a 

hearing officer, rather than a trial judge in Cambria County, to conduct the 

custody hearings. Thus, we direct the trial court to determine whether this 

case would be better served to be heard by an out-of-county trial judge.