Billhime v. Billhime - Superior Court - June 4, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/A06024_08.pdf
This case involves Mother's petition for Pennsylvania courts to relinquish jurisdiction to Florida courts. The initial custody order was entered in Pennsylvania. In a later order, the court granted custody to the mother, who lives in Florida, where the children had been living for several years.
The UCCJEA, 23 Pa.C.S.A. § 5422(a)(1), provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a “significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available here.
The trial court refused Mother's petition, relying almost exclusively on Father’s continuing “significant connection” with Pennsylvania. However, the court did not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that they visit Pennsylvania three times per year and spend time with their father, friends and paternal grandfather. There was little evidence regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by sec . 5422(a)(1) of the UCCJEA. In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida.
In the absence of exclusive continuing jurisdiction, a Pennsylvania court may nevertheless modify a child custody order it previously issued if it has jurisdiction to make an initial determination under section 5421 of the UCCJEA. 23 Pa.C.S.A. § 5422(b). Because the trial court did not address the applicability of section 5421 in connection with its initial consideration of Mother’s motion to relinquish jurisdiction, we remand for consideration and decision on this issue.
In the event the trial court determines that it lacks jurisdiction to make an initial custody determination pursuant to section 5421, it should grant Mother’s motion and relinquish jurisdiction of custody matters relating to these two children to the courts of the state of Florida. Order reversed. Case remanded.
Wednesday, June 04, 2008
appeals - MDJ appeals - appeal v. certiorari
Gladstone Partners v. Overland Enterprise - Superior Court - June 2, 2008
http://www.courts.state.pa.us/OpPosting/Superior/out/A06037_08.pdf
Appeal de novo and writ of certiorari are different, separate, and mutually exclusive.
These remedies do not and cannot exist simultaneously. MDJ Rule 1015 expressly prohibits a litigant from availing themselves of both an appeal de novo and certiorari review. Rule 1015 clearly requires a litigant desiring to challenge a magisterial district court’s judgment to choose either to appeal de novo or to seek certiorari review.
The purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court, whereas certiorari connotes a review of the record established in the minor court with an eye to cure defects in procedure and legal error....
The Pennsylvania Constitution does not guarantee the remedy of certiorari review, but, rather, the Judicial Code permits the courts of common pleas to issue writs of certiorari as they had done at common law, 42 Pa.C.S.A. § 934. As such, the appellate courts of this Commonwealth have described certiorari review as an alternative to an appeal de novo.
The remedy of appeal de novo takes precedence over certiorari review due to the guarantee of the right to appeal found in Art. V § 9 of the Pennsylvania Constitution. Thus, the simultaneous filing of an appeal de novo and a praecipe for writ of certiorari will result in the striking of the writ if it is later granted by the court of common pleas.
The time for appeal is not extended while certiorari proceeding are pending
Courts cannot extend appeal deadlines without showing a breakdown in the processes of the court or fraud that would justify an appeal nunc pro tunc. The MDJ Rules state the time limits for seeking appeal de novo and certiorari review with specificity.
A party challenging the subject matter or procedural jurisdiction of an MDJ via writ of certiorari may do so at any time after entry of the court’s judgment; otherwise, the time limit for seeking certiorari review is 30 days following entry of judgment. Pa.R.C.P.M.D.J. 1009B.
On the other hand, a party appealing de novo is constrained by a 30-day time limitation from the entry of judgment or, in the case of judgments of possession of residential real property, a 10-day time limitation from the entry of judgment. Pa.R.C.P.M.D.J. 1002A, 1002B.
Therefore, to find that the grant of a writ of certiorari tolls the time for taking appeal de novo would permit the courts of common pleas to extend the time for taking appeal de novo to a potentially-limitless period.
No good cause for late filing - MDJ Rules 1002A and 1002B permit the filing of an appeal beyond the stated time periods with leave of court and upon good cause shown. In the present case, the appellant did not request the leave of court or demonstrate cause as to why their appeal was filed beyond the 30-day time limit. Accordingly, we need not consider this grace proviso in the present case.
http://www.courts.state.pa.us/OpPosting/Superior/out/A06037_08.pdf
Appeal de novo and writ of certiorari are different, separate, and mutually exclusive.
These remedies do not and cannot exist simultaneously. MDJ Rule 1015 expressly prohibits a litigant from availing themselves of both an appeal de novo and certiorari review. Rule 1015 clearly requires a litigant desiring to challenge a magisterial district court’s judgment to choose either to appeal de novo or to seek certiorari review.
The purpose of an appeal de novo is to give a litigant a new trial without reference to the record established in the minor court, whereas certiorari connotes a review of the record established in the minor court with an eye to cure defects in procedure and legal error....
The Pennsylvania Constitution does not guarantee the remedy of certiorari review, but, rather, the Judicial Code permits the courts of common pleas to issue writs of certiorari as they had done at common law, 42 Pa.C.S.A. § 934. As such, the appellate courts of this Commonwealth have described certiorari review as an alternative to an appeal de novo.
The remedy of appeal de novo takes precedence over certiorari review due to the guarantee of the right to appeal found in Art. V § 9 of the Pennsylvania Constitution. Thus, the simultaneous filing of an appeal de novo and a praecipe for writ of certiorari will result in the striking of the writ if it is later granted by the court of common pleas.
The time for appeal is not extended while certiorari proceeding are pending
Courts cannot extend appeal deadlines without showing a breakdown in the processes of the court or fraud that would justify an appeal nunc pro tunc. The MDJ Rules state the time limits for seeking appeal de novo and certiorari review with specificity.
A party challenging the subject matter or procedural jurisdiction of an MDJ via writ of certiorari may do so at any time after entry of the court’s judgment; otherwise, the time limit for seeking certiorari review is 30 days following entry of judgment. Pa.R.C.P.M.D.J. 1009B.
On the other hand, a party appealing de novo is constrained by a 30-day time limitation from the entry of judgment or, in the case of judgments of possession of residential real property, a 10-day time limitation from the entry of judgment. Pa.R.C.P.M.D.J. 1002A, 1002B.
Therefore, to find that the grant of a writ of certiorari tolls the time for taking appeal de novo would permit the courts of common pleas to extend the time for taking appeal de novo to a potentially-limitless period.
No good cause for late filing - MDJ Rules 1002A and 1002B permit the filing of an appeal beyond the stated time periods with leave of court and upon good cause shown. In the present case, the appellant did not request the leave of court or demonstrate cause as to why their appeal was filed beyond the 30-day time limit. Accordingly, we need not consider this grace proviso in the present case.
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