J-A04044-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

R.S. AND D.S., IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellants 

v. 

S.D. AND M.S. 

 v. 

G.L.S., II 

 v. 

S.D. 

 v. 

M.S., 

 Appellees No. 1480 WDA 2013 

Appeal from the Order dated August 16, 2013 

In the Court of Common Pleas of Clearfield County 

Civil Division at No: 2012-309-CD 

DISSENTING MEMORANDUM BY STABILE, J.: FILED FEBRUARY 12, 2015

I must respectfully dissent from the learned Majority’s decision for two 

principal reasons. First, I believe the Majority has exceeded our standard of 

review1 by finding facts and addressing issues not raised before this Court. 

 

1

 In McMillen v. McMillen, 602 A.2d 845 (Pa. 1992), our Supreme Court 

explained an appellate court’s scope of review in child custody matters: 

The scope of review of an appellate court reviewing a child 

custody order is of the broadest type; the appellate court is not 

bound by the deductions or inferences made by the trial court 

from its findings of fact, nor must the reviewing court accept a 

finding that has no competent evidence to support it. However, 

this broad scope of review does not vest in the reviewing court 

the duty or the privilege of making its own independent 

determination. Thus, an appellate court is empowered to 

determine whether the trial court’s incontrovertible factual 

findings support its factual conclusions, but it may not interfere 

with those conclusions unless they are unreasonable in view of 

the trial court’s factual findings; and thus, represent a gross 

abuse of discretion. 

Id. at 847 (citations omitted).
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Second, to my knowledge, the Majority essentially has recognized for the 

first time grandpaternity by estoppel as a judicial doctrine in this 

Commonwealth. No such doctrine ever has been recognized in our law. 

Nonetheless, even if such a doctrine were to be recognized, I would not find 

circumstances present here for its application. 

The sole issue properly2 before this Court is whether the trial court 

erred when it failed to equitably estop Mother from terminating the visitation 

and custody rights of Appellants, putative grandparents, after the results of 

a paternity test established that Appellants’ son was not the biological father 

of Mother’s child, C.S. (“Child”). After a hearing, the trial court dismissed 

Appellants’ complaint on the basis that Appellants did not have standing 

under 23 Pa.C.S.A. § 5324 (sole physical custody) to sue for custody of 

Child, because Appellants were not Child’s grandparents. 

Instead of restricting our review in this matter to the equitable 

estoppel issue raised and decided by the trial court, the learned Majority sua 

sponte has raised and decided the non-jurisdictional issue of whether Mother 

waived her right to challenge standing for failure to raise this issue at an 

earlier opportunity. The Majority, acting as a fact-finder, finds waiver 

without the benefit of an evidentiary hearing, or notice and opportunity for 

Mother to address this waiver issue or to explain the timing of her actions. 

 

2

 Appellants also argue whether the trial court erred by not finding that 

continued custody by Appellants was in the best interest of Child. Because I 

would not find error with the trial court dismissing this action for lack of 

standing, I would not address the best interest issue. 
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Having determined the challenge to standing as waived, the Majority 

concludes, after detailed fact-finding ab initio from its review of the record, 

that Mother is equitably estopped from challenging Appellants’ status as 

grandparents to Child. The Majority finds equitable estoppel without any 

evidence in the record to support the essential ingredient of detrimental 

reliance to equitable estoppel. 

With standing and equitable estoppel decided by sua sponte raising 

issues and finding facts, the Majority compounds these errors by again sua 

sponte raising and concluding that Appellants, alternatively, have standing 

for partial custody of Child. The Majority accomplishes this feat by 

disregarding the complaint filed for full custody and by treating Appellants’ 

complaint as if it were filed for partial custody under 23 Pa.C.S.A. § 5325. 

The Majority again does so without the benefit of any findings by the trial 

court or an opportunity by the parties to be heard on this issue. 

I now set forth the reasons for my dissent. At the outset, the Majority 

acknowledges the central issue on appeal is whether Mother should be 

estopped equitably from challenging Appellants’ standing (as grandparents) 

to dismiss Appellants’ underlying custody complaint and related custody 

orders. Yet, despite this acknowledgment, the learned Majority takes it 

upon itself to circumvent this central issue by disposing of this case based on 

a waiver of standing claim—an issue Appellants failed to raise and preserve 

below or address in their appellate brief. The Majority attempts to 

rationalize its sua sponte consideration of this waiver issue by reasoning this 
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issue is an innate component of Appellants’ estoppel claim because Mother’s 

ten-month delay in raising standing is subsumed in Appellants’ estoppel 

argument. 

My review of the record reveals that Appellants did not assert waiver 

as a defense to Mother’s standing challenge at any time before the trial court 

or this Court. It is well established that issues not raised in the lower court 

are waived and cannot be raised for the first time on appeal. See Pa.R.A.P. 

302(a); see also Green v. Green, 69 A.3d 282, 287 (Pa. Super. 2013) 

(concluding that an issue cannot be raised for the first time on appeal). 

Because it was this Court that raised the waiver issue, not surprisingly, this 

issue of waiver also is not presented in Appellants’ 1925(b) statement of 

issues for appeal. This absence provides a second basis for waiver of this 

issue on appeal to this Court. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not 

included in the Statement . . . are waived.”). The issue of waiver also does 

not appear in any of Appellants’ statement of questions in their brief to this 

Court. The issue again is waived. See Pa.R.A.P. 2116(a) (“The statement 

of the questions involved must state concisely the issues to be resolved, 

expressed in terms and circumstances of the case[.]”). Even if this issue 

were not expressly stated in the questions presented, this Court still would 

not be justified in addressing this claim because it is entirely absent from 

any briefing submitted by Appellants to this Court. See Pa.R.A.P. 2119(a); 

see also Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675 (Pa. Super. 
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2007) (the failure to develop an argument with citation to and analysis of 

relevant authority waives the issue on appeal).3

With specific reference to the issue of standing, our Supreme Court 

further has explained, courts are “prohibited from raising the issue of 

standing sua sponte. ‘Whether a party has standing to maintain an action is 

not a jurisdictional question.’” In re Nomination Petition of deYoung, 

903 A.2d 1164, 1168 (Pa. 2006). In deYoung, our Supreme Court 

expressly rejected the notion that “standing can be raised by [a] court sua 

sponte” because it is intertwined with subject matter jurisdiction. Id. at 

1167-68. Hence, if courts are prohibited from raising the issue of standing 

on their own accord, then, by that same logic, the issue of waiver of a 

standing challenge likewise, cannot be raised sua sponte in this case. 

To the extent the Majority states it may raise the issue of waiver of 

standing sua sponte because the issue is subsumed by Appellants’ estoppel 

argument, I strongly disagree.4 The doctrine of equitable estoppel, as 

discussed infra, requires proof of an inducement relied upon by another to 

their detriment. The issue of waiver, as raised by the Majority, concerns 

 

3

 It is likely unfair to speak in terms of Appellants waiving this issue, as it 

suggests some fault on the part of Appellants. This Court has raised the 

issue. Appellants never have urged the trial court or this court to consider 

the issue of waiver. 

4

 Although the Majority does not cite any rule of appellate procedure 

regarding equitable estoppel subsuming a standing waiver, I presume it 

refers to the “fairly suggested” language of Pa.R.A.P. 2116 (“[T]he 

statement of question will be deemed to include every subsidiary question 

fairly comprised therein.”). 
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whether Mother had the right even to raise her challenge to standing based 

upon unreasonable delay in raising the issue. The timing consideration in 

the standing waiver issue exists wholly apart from any consideration 

regarding the elements of equitable estoppel. Simply stated, the substance 

of an equitable estoppel claim does not subsume the procedural question of 

whether a challenge to standing has been raised timely. 

Having determined that the issue of standing waiver was properly 

before this Court, the Majority, relying principally upon Kellogg v. Kellogg, 

646 A.2d 1246 (Pa. Super. 1994), concludes that Mother waived any right to 

challenge standing by not raising this issue at an earlier time. Although the 

Majority relies upon Kellogg, I am not convinced Kellogg was properly 

decided. With respect to custody actions, Pa.R.C.P. No. 1915.5(a) quite 

clearly requires that a person raise only issues of “jurisdiction of the person” 

or “venue” by way of preliminary objection within twenty days of service of 

the pleading to which they object. Preliminary objections to civil actions 

similarly are limited. See Pa.R.C.P. No. 1028(a)(1). Standing is not among 

the defenses that must be raised preliminarily. Yet, the Kellogg court rewrote Rule 1915.5(a) through case law to include standing as a third 

defense that must be preliminarily raised within twenty days when 

responding to a custody complaint.5 In my view, the Majority correctly 

 

5

 By including standing as a part of Rule 1915.5(a) through case law, the 

court creates a trap for practitioners who rely upon the clear and 

unequivocal language of the rule for guidance. Kellogg was decided some 

20 years ago. If standing is to be included in the required defenses that 

must be raised preliminarily to a custody complaint, the rule should be 
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moves away from the mechanical inclusion of standing within the strict time 

constraints of Rule 1915.5(a), recognizing the issue of standing can be fluid 

in custody cases. Because Rule 1915.5(a) does not include standing among 

the defenses that must be preliminarily raised, it is my view standing should 

be treated like any other defense not subject to waiver if not raised within a 

prescribed time under our rules. 

Regardless of whether standing is to be properly pled under Rule 

1915.5(a), I nonetheless, on the merits of this issue, cannot conclude that 

Mother waived her right to raise the issue of Appellants’ standing. The 

record is devoid of any hearing, evidence, or any fact-finding by the trial 

court on this timeliness issue (because it was not raised by Appellants). The 

only issue heard by the trial court prefatory to this appeal was Appellants’ 

estoppel argument. There was no hearing or determination by the trial court 

as to whether Mother was entitled to raise her standing challenge. 

Nonetheless, the Majority renders its own factual findings contrary to our 

standard of review by stating: 

Mother claimed that she suspected that Putative Father was not 

C.S.’s birth father and that she advised him of her doubts. While 

Mother could not prove her suspicions that Appellants were not 

genetic relatives of C.S. until she obtained the results of [the] 

DNA testing, that does not excuse Mother’s protracted delay

once she acquired the DNA results during the ongoing custody 

proceedings. Mother obtained the results of a private DNA test 

during June 2012; however, she did not assert her standing 

challenge until April 2013, ten months later. Rather than assert a 

standing challenge immediately after receiving confirmation, 

Mother filed additional pleadings seeking to reduce Appellants’ 

custodial rights for various reasons unrelated to standing. 

 

properly amended so as not to prejudice practitioners admitted after 1994 

not entirely familiar with historical case law. 
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Maj. Mem. at 12 (emphasis added). The Majority concludes although Mother 

was not required to raise a standing challenge at the outset of the case, she 

certainly was required to do so as soon as she had tangible confirmation that 

Appellants were not genetically related to Child. The Majority makes these 

findings without an evidentiary record that would have provided Mother an 

opportunity to explain the timing of her actions, assuming timeliness may be 

dispositive of her standing challenge. 

There is no evidence of record to suggest that Mother in fact knew of 

Child’s biological father until DNA testing was accomplished. The Majority 

treats prior knowledge as a fait accompli without any findings by the trial 

court. No doubt, Mother thought to pursue this issue after experiencing 

numerous acrimonious and contentious court proceedings with putative 

grandparents for custody of Child. Mother’s timing also may be explained by 

the fact that counsel did not represent her until the filing of her standing 

challenge, a possible change of circumstance in her case. In all likelihood, 

Mother’s standing challenge was the result of counsel’s legal review of the 

proceedings, a task probably beyond Mother’s capabilities. I, however, like 

the Majority, am in no position to make findings of fact in this regard. 

The point I wish to make clear is that Mother may very well have 

explained satisfactorily her timing on this standing issue if given the 

opportunity to do so, and if the issue of waiver was properly raised before 

the trial court. The Majority impermissibly engages in fact-finding to reach 

its conclusion without the benefit of any record or fact-finding by the trial 
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court, and without any ability to weigh the testimony or credibility of the 

parties. 

[U]nlike trial courts, appellate courts are not equipped to make 

the fact-specific determinations on a cold record, where the trial 

judges are observing the parties during the relevant hearing and 

often presiding over numerous other hearings regarding the child 

and parents. Therefore, even where the facts could support an 

opposite result, . . . an appellate court must resist the urge to 

second guess the trial court and impose its own credibility 

determinations and judgment; instead we must defer to the trial 

judges so long as the factual findings are supported by the 

record and the court’s legal conclusions are not the result of an 

error of law or an abuse of discretion. 

See In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations 

omitted); see also D.G. v. D.B., 91 A.3d 706, 707 (Pa. Super. 2014) 

(noting that a reviewing court’s standard of review “does not vest in the 

reviewing court the duty or the privilege of making its own independent 

determination”). 

Having dispatched Mother’s standing issue on the basis of waiver, the 

Majority proceeds next to address the issue of equitable estoppel, the only 

issue properly before this Court. See Maj. Mem. at 13. The Majority 

concludes that Appellants met their burden of proof with respect to equitably 

estopping Mother from challenging their status as Child’s grandparents. The 

doctrine of “equitable estoppel” is one of fundamental fairness, designed to 

preclude a party from depriving another of a reasonable expectation when 

the party inducing the expectation, albeit gratuitously, knew or should have 

known that the other party would rely on that conduct to his detriment. See 

Jacob v. Shultz-Jacob, 923 A.2d 473, 480 (Pa. Super. 2007). 
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In this regard, acting again impermissibly as a trial court, the Majority 

finds and then concludes: 

[O]ur review of the case law did not reveal a single case that 

addressed a non-biological grandparent’s ability to invoke 

equitable estoppel against a birth parent[, like Mother,] who not 

only actively misled them to believe the child was their 

grandchild, but also consented to [their] exercise of custodial 

rights. 

 . . . . 

Mother represented over a two-year period that Appellants were 

C.S.’s birth grandparents. Although Mother suspected from the 

outset that Putative Father was not C.S.’s birth parent, she 

identified him as the father on the child’s birth certificate and 

executed an acknowledgment of paternity that identified him as 

C.S.’s father. Similarly, her actions encouraged Appellants to 

fashion and maintain a grandparent-child relationship with C.S. 

 . . . . [Mother] mounted a largely unsuccessful campaign to 

erode the terms of the custody arrangement [with Appellants]. 

 . . . . 

The trial court ignores Mother’s inaction and consent to 

Appellants’ custody rights in declining to apply equitable estoppel 

to prevent Mother from invoking the results of a paternity test to 

strip Appellants of their custody rights. Appellants have always 

held themselves out as grandparents, and with Mother’s express 

consent and endorsement, they have exercised legitimate, courtordered custodial rights as C.S.’s grandparents since May 2012. 

Mother’s actions and representations regarding C.S.’s 

parentage for the first two years of the child’s life and her silence 

in agreeing to the initial custody order induced Appellants to 

believe that C.S. was their grandchild. Appellants relied upon 

Mother’s representations and omissions to their detriment, and 

would be severely prejudiced if Mother were permitted to invoke 

the results of the genetic testing at this point in order to deny 

their beneficial relationship with C.S. Thus, we conclude that the 

trial court erred in holding that equitable estoppel was 

inapplicable. 

Maj. Mem. at 16-19 (emphasis added). 

I disagree with the Majority’s conclusion that Appellants met their 

burden of proof to establish detrimental reliance on their equitable estoppel 

claim based upon Mother’s misrepresentations regarding their genetic ties to 
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Child. At the hearing on Mother’s motion to dismiss/vacate, Appellants 

testified on their own behalf and offered the testimony of their son, putative 

father. The Majority finds detrimental reliance, in sum, based on the fact 

Appellants operated under the assumption created by Mother that they were 

the biological grandparents to Child. Beyond this, neither the Majority’s 

memorandum, nor my review of the record, yields any evidence that would 

support the conclusion that Appellants suffered any detriment sufficient to 

support an equitable estoppel claim, nonetheless substantial prejudice as 

claimed by the Majority. The Majority’s cumulative and repeated references 

to Mother’s actions does not establish or answer whether Appellants suffered 

any detrimental reliance. 

Appellants enjoyed the benefit of acting as grandparents to Child, but 

the loss of this benefit to which they were not entitled, alone, does not 

establish detrimental reliance. The record does not demonstrate Appellants 

are in any worse position now than they would have been if originally 

advised they were not Child’s grandparents. See Card v. Commonwealth 

of Pennsylvania, Pennsylvania School Employes' Retirement Bd., 478 

A.2d 510, 514 (Pa. Cmwlth. 1984) (noting that petitioner, despite repeatedly 

being advised of eligibility to purchase pension credits, could not claim 

equitable estoppel as record did not demonstrate her position was 

detrimentally changed, since she was in no worse position than she would 

have been had she initially been informed correctly of her ineligibility). 

Appellants have not produced any evidence of a detrimental change in 
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position to support their claim. Equitable estoppel always must be 

predicated upon some detrimental reliance. See id. If the modicum of 

evidence offered by Appellants here was all that was necessary to claim 

grandparent status by equitable estoppel, there virtually would be no case in 

which parentage is disputed where third parties would not be able to 

establish standing on an equitable estoppel claim. 

Moreover, I disagree with the Majority’s finding of equitable estoppel 

and hence, reinstating custody in Appellants, on a more fundamental level. 

The focus in an equitable estoppel claim is upon the expectation created and 

the detrimental reliance upon that expectation. Here, Appellants assert 

equitable estoppel against Mother to gain grandparent status in order to 

seek custody of Child. Invocation of the doctrine was for the benefit of 

Appellants. In every custody matter, however, the paramount focus is upon 

the best interests of the child. See 23 Pa.C.S.A. § 5328(a). Nowhere in 

Appellants’ equitable estoppel claim, or as found by the Majority, is the best 

interests of Child considered before conferring non-biological grandparent 

status upon Appellants so they can continue to seek custody of Child. This 

no doubt, is because the “best interests” of a child is not an element of an 

equitable estoppel claim. Therefore, I am in agreement with the trial court 

that considerations underlying the doctrine of paternity by estoppel6 do not 

 

6

 “[P]aternity by estoppel continues to pertain in Pennsylvania , but it will 

apply only where it can be shown, on a developed record, that it is in the 

best interests of the involved child.” K.E.M. v. P.C.S., 38 A.3d 798, 810 

(Pa. 2012). 
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apply to grandparents. This is buttressed by the fact that our Legislature 

has seen fit to codify paternity by estoppel, but has not done so similarly for 

grandparents. See 23 Pa.C.S.A. § 5102. Succinctly stated, there is no 

grandpaternity by estoppel in Pennsylvania. 

Next, in determining that the doctrine of equitable estoppel would 

apply instantly, the Majority “observe[s] that Appellants attained standing to 

pursue partial custody of C.S. pursuant to 23 Pa.C.S.[A.] § 5325(2), relating 

to grandparent’s standing for partial custody[.]” Maj. Mem. at 19. The 

parties here do not dispute the fact Appellants initiated their custody action 

under 23 Pa.C.S.A. § 5324, for sole physical custody of Child. The Majority, 

by invoking Section 5325, essentially amends Appellants’ custody complaint 

sua sponte from one seeking full custody to partial custody of Child. 

Because partial custody was not the relief sought in Appellants’ pleadings, I 

disagree with the Majority’s invocation of Section 5325.7

I am not without sympathy for Appellants’ situation, i.e., loving and 

caring for a child as one’s own grandchild only to discover later the lack of 

any genetic link. I have no doubt Appellants feel a bond with Child and are 

angered at Mother. Nonetheless, for the reasons set forth above, I 

 

7

 Even were we to assume Appellants are the grandparents of Child for 

purposes of this appeal, they still would be unable to assert standing under 

Section 5324 of the Act to seek custody of Child. It is undisputed that 

Appellants are not the parents of Child, do not stand in loco parentis to him, 

and Child has not resided with Appellants for at least 12 consecutive 

months. Therefore, Appellants would be unable to assert standing under 

Section 5324 of the Act to seek custody of Child even if they were 

considered grandparents for purposes of this custody action. 
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respectfully dissent from the Majority’s decision to find Mother’s standing 

challenge to be waived, to confer grandparent status upon Appellants 

premised upon equitable estoppel, to convert Appellants’ claim for custody 

to one for partial custody, and to reinstate the March 11, 2013 order 

granting Appellants partial custody subject to a best interest analysis 

pursuant to § 5328(a). 

For all the foregoing reasons, I respectfully dissent.