Jacoby, H. v. Jacoby, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HEATHER L. JACOBY : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RICHARD G. JACOBY, JR. :

:

Appellant : No. 972 MDA 2021

Appeal from the Order Entered June 18, 2021

In the Court of Common Pleas of Berks County Civil Division at No(s):

16-16933

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 1, 2022

Richard G. Jacoby, Jr. (Father) appeals from the trial court’s order that

restricted the speech of his spouse, non-party Brena Jacoby (Stepmother).1

Father contends that the trial court’s order improperly restricted non-party

Stepmother’s speech on a social media site. We vacate the order to the extent

the order affects Stepmother.

By way of background, we note that this appeal is one of several

involving the parties’ custody dispute. See, e.g., Jacoby v. Jacoby, Nos.

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* Retired Senior Judge assigned to the Superior Court.

1 Under Superior Court Internal Operating Procedure Rule 65.44, the “names

of the parties in a caption for an appeal from a divorce, equitable distribution,

custody, visitation or child support decision shall include the full names of the

parties if listed as such in the caption of the trial court’s docket. . . . In such

documents, the name of the child shall be initialized or the document shall

refer to the child as ‘Child.’” Pa. Super. IOP 65.44.

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100 MDA 2021, 131 MDA 2021, 2021 WL 5355739, *1 (Pa. Super. filed Nov.

17, 2021) (Jacoby III) (unpublished mem.) (remanding for calculation of

counsel fees); Jacoby v. Jacoby, No. 1379 MDA 2020, 2021 WL 5194091

(Pa. Super. filed Nov. 9, 2021) (unpublished mem.); H.L.J. v. R.G.J., Jr., No.

2014 MDA 2019, 2020 WL 4334055 (Pa. Super. filed July 28, 2020)

(unpublished mem.), appeal denied, 239 A.3d 1086 (Pa. 2020). In short, the

trial court granted Mother’s petition to modify the May 2017 custody order

that led to multiple appeals. See generally Jacoby III, 2021 WL 5355739

at *1.

The instant appeal concerns an emergency petition that Mother filed on

June 16, 2021. Therein, Mother sought to enforce the court’s modified

custody order, remove Child from Stepmother’s home, and place Child with

Berks County Children and Youth Services (CYS). Mother’s Emergency Pet.,

6/16/21. The trial court held a telephone hearing on June 17, 2021. At the

hearing, Mother’s counsel notified the court for the first time about a post that

Stepmother had made on Facebook.2 Specifically, Mother’s counsel explained:

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2 We quote the Facebook post as follows:

OK…. I’m going to lay everything out for ppl to know. My husband

[Father] is currently in BCP on indirect civil contempt pertaining

to child custody. The judge won’t release [Father] until our minor

child attends four days of this out of state program with Linda

Gottlieb. The judge did not set a monetary value. Our minor child

is afraid of her Mother (she lives out of state) and has been

fighting not to go to this out-of-state program with her Mother to

(Footnote Continued Next Page)

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“Your Honor, there was a Facebook post by [Stepmother] basically saying that

they’ve complied with all these orders, that this [c]ourt has gone rogue, that

she keeps saying ‘our child.’ I mean, this is pure alienation. She should not

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fix their relationship. There have been many attempts to have

our minor child attend this program, to no avail. Her Mother had

her attorney request that our child’s Father be incarcerated until

our child attends at least 4 days of this out of state program. This

happened on Monday. On Monday my husband was incarcerated.

On Monday, CYS came to my house, and the State Troopers. Our

minor child is still with me as she fought not to go. How much

emotionally [sic] and mental abuse can a child go through. I

cooperated 100%. This has been going on for years (2016). Our

minor child has not been alone with her Mother in over 5 years.

She is terrified to go with her. At this point, we have a biased

Judge. He basically went rogue. I need help. I have 2 great

attorneys, but no matter what we do the judge sides with the

other side. They are claiming parental alienation. There is no

legal record of parental alienation. Now anyone that knows me or

my husband knows we aren’t those ppl. We have encouraged,

positive affirmations etc.. [sic] this doesn’t matter to our minor

child because the child is in fear. As some know I co-parent with

my ex. We don’t have a court order or a child support order. We

get along great. This has been a nightmare for us all, but

especially for our child who has never been without [Father] in all

of our child’s life. We have been accused of interfering with our

child going to this program. We aren’t interfering. Our child is

fighting it. How much more abuse can we all take, especially our

child.

My husband owns a law firm and it is taking a hit because he is

incarcerated for no reason.

We need help. We need help immediately.

Ex A. to Father’s Appl. for Stay, 8/10/21. This Court denied the application to

stay on August 11, 2021. Order, 8/11/21.

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be involved in this at all.” N.T. Hr’g, 6/17/21, at 4. In contrast, Father’s

counsel asserted that the post did not contain any information that was

material to the custody dispute. Id. at 8.

Thereafter, the following exchange occurred:

THE COURT: All right. And as far as any Facebook posts, I have

not read more than two words of the Facebook – copy of the

Facebook post that was sent to my office this morning. But I am

also going to order that none of the parties, and [Stepmother],

make no more public comments about this child or this child’s

situation under the possibility of finding her and whoever else

that’s involved in this case in contempt.

[Father’s counsel]: Your Honor, I have already instructed

[Stepmother] not to do so further and she agreed with my

instruction.[3]

THE COURT: . . . I am also going to require that [Stepmother] is

ordered to remove those posts forthwith.

[Father’s counsel]: I’ll convey that to her immediately, Your

Honor.

Id. at 13-14. The hearing concluded shortly thereafter without any objection

by Father’s counsel to the trial court’s directives regarding the Facebook post.

See id. at 1-15.

Following the hearing, the trial court issued an order that granted

Mother’s petition and stated, in part, as follows:

8. [Father] and [Stepmother] shall NOT use online or web-based

communications to discuss this matter.

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3 Nothing in the record reflects that Father’s counsel represents Stepmother.

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9. [Father] or [Stepmother] shall remove the Facebook post which

contains information related to [Child] and shall not post any

discussion or information regarding [Child’s] custody or other

information regarding [Child].

Order, 6/18/21, at ¶¶ 8-9.4

On July 8, 2021, Father filed a notice of appeal from the June 18, 2021

order. Notice of Appeal, 6/18/21.5 Father also contemporaneously filed a

Pa.R.A.P. 1925(a)(2)(i) statement raising multiple issues, including two claims

solely pertaining to Stepmother.6 The trial court filed a Rule 1925(a) opinion

that did not address the issues raised in Father’s Rule 1925(a)(2)(i)

statement.7

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4The order was dated June 17, 2021, and served on June 18, 2021. The

parties, record, and trial court use the June 17, 2021 date.

5The notice of appeal reflects that only Father appealed and Father’s counsel

only represents Father. Id. Stepmother did not file a notice of appeal.

6 Specifically:

3. Whether the trial court committed an error of law, abuse of

discretion, and factual error when [it] ordered non-party

[Stepmother] to not use web-based communications to discuss

the matter and ordered her to remove a post on Facebook?

4. Whether the trial court committed an error of law and abuse of

discretion when it ordered [Stepmother] to make no further posts

on Facebook relating to the Child or the custody matter?

Rule 1925(a)(2)(i) Statement, 7/8/21.

7Because of the parties’ litigiousness, the trial court had to prepare numerous

Rule 1925(a) opinions for multiple appeals. The instant Rule 1925(a) opinion,

however, was unresponsive to the issues identified in Father’s Rule

(Footnote Continued Next Page)

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Before stating the issue, we address the appealability of the instant

order. In Z.P. v. K.P., --- A.3d ---, ---, 2022 PA Super 6, 2022 WL 54492

(Pa. Super. filed Jan. 6, 2022), the Court explained:

[T]he appealability of an order directly implicates the jurisdiction

of the court asked to review the order. Pennsylvania law makes

clear [that a]n appeal may be taken from: (1) a final order or an

order certified as a final order; (2) an interlocutory order as of

right; (3) an interlocutory order by permission; or (4) a collateral

order.

A final order in a civil case is one that disposes of all the parties

and all the claims; or is entered as a final order pursuant to the

trial court’s determination under Rule 341(c). A custody order will

be considered final and appealable only after the trial court has

completed its hearings on the merits and the resultant order

resolves the pending custody claims between the parties

Z.P., 2022 WL 54492 at *7 (formatting altered and most citations omitted).

An order denying a petition to enforce a custody order is final and appealable.

See Flannery v. Iberti, 763 A.2d 927, 927 n.1 (Pa. Super. 2000); Basham

v. Basham, 713 A.2d 673, 674 (Pa. Super. 1998).

Here, the instant order granted Mother’s petition to enforce the court’s

prior custody order. Similar to the petitions to enforce at issue in Flannery

and Basham, Mother’s petition to enforce was granted by the trial court. Cf.

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1925(a)(2)(i) statement. Although we sympathize with the trial court’s

apparent frustration at having to prepare numerous Rule 1925(a) opinions,

the trial court did not detail any of its legal reasoning in support of the

challenged provisions of the June 18, 2021 order. See generally Trial Ct.

Op., 10/1/21, at 1-6. We add that the trial court did not explain how it could

exercise jurisdiction over non-party Stepmother.

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Flannery, 763 A.2d at 927 n.1; Basham, 713 A.3d at 674. Because this

Court has held that orders denying petitions to enforce were considered final

and appealable orders, it follows that an order granting a petition to enforce

would also be considered final and appealable. Cf. Flannery, 763 A.2d at

927 n.1; Basham, 713 A.3d at 674. We add that there are no outstanding

claims between Father and Mother because the trial court previously resolved

all outstanding custody claims other than Mother’s petition to enforce the prior

custody order.8 See generally Pa.R.A.P. 341; Z.P., 2022 WL 54492 at *7.

Because the instant order is final and appealable, we next state Father’s issue

and summarize his argument.

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8 We acknowledge that the Jacoby III Court remanded to the trial court for

calculation of reasonable appellate counsel fees for three appeals, excluding

the instant appeal. Jacoby III, 2021 WL 5355739 at *9. Typically, courts

have construed an award of counsel fees as ancillary to the underlying claims.

Cf. Miller Elec. Co. v. DeWeese, 907 A.2d 1051, 1057 (Pa. 2006); Carmen

Enters., Inc. v. Murpenter, LLC, 185 A.3d 380, 389 (Pa. Super. 2018)

(explaining that when “judgment is entered in the underlying litigation before

the trial court rules on a motion for counsel fees, the order on counsel fees is

appealable when entered without the need for entry of judgment on it”). We

do not construe the Jacoby III Court’s remand for an award of appellate

counsel fees as rendering the instant order interlocutory and unappealable.

See Miller Elec., 907 A.2d at 1057.

When Father filed the notice of appeal, he was challenging the order on behalf

of himself and Stepmother. Father had not yet withdrawn his own claims.

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Father raises one issue on appeal: “May a trial court issue an order

censoring speech of non-party Stepmother on social media relating to criticism

of the trial court judge in the action[?]” Father’s Brief at 8.9

For his sole issue, we summarize Father’s sparse two-paragraph

argument as follows. Father initially notes that the trial court was aware that

Stepmother’s Facebook post criticized the court. Id. at 23. Father reasons

that the trial court’s communications restriction order is subject to strict

scrutiny and that “[a] blanket restriction on speech on social media,

undoubtedly the primary forum for political speech in this Commonwealth,

Country, and presumably the World, is not narrowly tailored.” Id. at 22-23.

“For this reason,” Father summarily concludes, “the restriction on

[S]tepmother’s speech should be stricken . . . .” Id. at 23.10

Before addressing the merits of Father’s argument, Father’s issue itself

raises several questions, including whether Father could raise an argument on

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9On December 7, 2021, Father filed an application with this Court to, among

other things, withdraw eight of his nine issues on appeal, which this Court

granted on December 9, 2021. Order, 12/9/21; Father’s Appl., 12/7/21.

10Father’s two-paragraph argument for Stepmother is terse. To the extent

that Father has cited to applicable authority, he failed to identify how the

holdings in the cases are pertinent or how they should inform our analysis of

Stepmother’s First Amendment claim. See Commonwealth v. Kane, 10

A.3d 327, 331 (Pa. Super. 2010) (stating, “[t]his Court will not act as counsel

and will not develop arguments on behalf of an appellant” (citation omitted)).

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behalf of non-party Stepmother and whether the trial court had jurisdiction to

issue an order against non-party Stepmother.

In In re Estate of Brown, 30 A.3d 1200 (Pa. Super. 2011), this Court

addressed a similar issue arising from the trial court’s decree, which

surcharged the appellant and her non-party husband. Brown, 30 A.3d at

1202. The appellant appealed, arguing that the trial court erred in surcharging

the non-party. Id. at 1204.

In resolving the appellant’s claim, the Brown Court first examined

whether the appellant had standing11 to challenge the trial court’s exercise of

personal jurisdiction over the non-party. Id. The Brown Court explained

that a court cannot sua sponte raise the issue of standing and a party may

also waive that issue. Id. at 1204-05 (discussing Thompson v. Zoning

Hearing Bd. of Horsham Twp., 963 A.2d 622 (Pa. Cmwlth. 2009), and In

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11In Fumo v. City of Phila., 972 A.2d 487 (Pa. 2009), our Supreme Court

defined standing as follows:

In seeking judicial resolution of a controversy, a party must

establish as a threshold matter that he has standing to maintain

the action. In Pennsylvania, the requirement of standing is

prudential in nature. A challenge to the standing of a party to

maintain the action raises a question of law. As this Court

explained . . . , the core concept of standing is that a person who

is not adversely affected in any way by the matter he seeks to

challenge is not aggrieved thereby and has no standing to obtain

a judicial resolution of his challenge.

Fumo, 972 A.2d at 496 (citations omitted and formatting altered).

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re DeYoung, 903 A.2d 1164 (Pa. 2006)). Because no party challenged

whether the appellant could raise an issue on behalf of the non-party, the

Brown Court held that all parties waived the issue of standing. See id. at

1205.

Here, as in Brown, neither Father nor Mother raised an issue as to

whether Father had standing to challenge the communications restriction

order on behalf of non-party Stepmother. See id. Therefore, like the Brown

Court, in which the Court held that because the parties waived any challenges

to standing, the appellant had standing to argue on behalf of the non-party,

we similarly conclude that Father has standing to raise arguments on behalf

of non-party Stepmother. See id.

Next, we address whether the instant trial court could exercise

jurisdiction over Stepmother. The Brown Court also addressed whether the

trial court had authority to issue an order against a non-party. Brown, 30

A.3d at 1205. The Brown Court reasoned that a “court must have personal

jurisdiction over a party to enter a judgment against it. Action taken by a

court without jurisdiction is a nullity.” Id. (citation omitted); cf.

Commonwealth v. Koehler, 229 A.3d 915, 928 (Pa. 2020) (observing that

“resolving whether a court has [subject matter] jurisdiction over a certain type

of claim does not resolve whether the court has the ability to grant the relief

requested” (citation omitted)). The Brown Court analogized its case to

Mayer v. Garman, 912 A.2d 762 (Pa. 2006), and held as follows:

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we hold the trial court exceeded its authority when it assessed a

surcharge against [the non-party], who was not named as a party

to the suit, served with process, or given the opportunity to

contest the surcharge. The . . . trial court, similar to the trial court

in Mayer, sua sponte haled [the] non-party[] into court and levied

a surcharge against him. Cf. Mayer, 912 A.2d at 764. Analogous

to the petitioner in Mayer, [the non-party] did not receive original

service of process. Cf. id. The trial court, similar to the trial court

in Mayer, cited no procedural rule permitting it to join [the non-

party] without service of process. Cf. id. Additionally, as in

Mayer, [the non-party] had no opportunity to object to the court’s

exercise of personal jurisdiction over him. Cf. id. at 765. Finally,

. . . similar to the petitioner in Mayer, [the non-party did not]

have an opportunity to challenge . . . the imposition of the

surcharge. Cf. id. at 765-66. Accordingly, we hold the trial court

improperly exercised jurisdiction over [the non-party] without

proper service of process. Thus, we vacate the portion of the trial

court’s decree imposing a surcharge against [the non-party].

Brown, 30 A.3d at 1205-06; see also Belliveau v. Phillips, 207 A.3d 391,

395 (Pa. Super. 2019) (holding that “[a]bsent valid service, a court lacks

personal jurisdiction over a party and is powerless to enter judgment against”

it (citation omitted)); Mayer, 912 A.2d at 765 (explaining that the issue of

the trial court’s “personal jurisdiction over [the non-party] and authority . . .

stem[s] from the more central question [of] whether the trial court acted ultra

vires in purporting to sua sponte join [the non-party] to the litigation without

service of process”).12

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12 We acknowledge that personal jurisdiction is a waivable issue. However, a

party must waive it. Wagner v. Wagner, 768 A.2d 1112, 1119 (Pa. 2001)

(stating that the “requirement of personal jurisdiction flows from the Due

Process Clause and restricts judicial power as a matter of individual right. A

party may insist that the right be observed or he may waive it” (emphasis

(Footnote Continued Next Page)

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Turning to the instant case, we examine the “more central question” of

whether the trial court had personal jurisdiction over non-party Stepmother

to enter an order against her, because “[a]ction taken by a court without

jurisdiction is a nullity.” See Mayer, 912 A.2d at 765; Belliveau, 207 A.3d

at 395; Brown, 30 A.3d at 1205. Like the trial courts in Brown and Mayer,

the instant trial court sua sponte pulled non-party Stepmother into this court

proceeding by issuing an order against her without addressing the absence of

original service of process for Stepmother. See Brown, 30 A.3d at 1205-06

(discussing Mayer, 912 A.2d at 765). Identical to the non-party in Brown,

Stepmother was not a party to the suit between Father and Mother, she was

not served with process, and she had no notice or opportunity to challenge

the communications restriction order. See Brown, 30 A.3d at 1205-06.

Although personal jurisdiction is a waivable issue, non-party Stepmother

did not have notice nor an opportunity to challenge the order, and the parties

did not address the trial court’s exercise of personal jurisdiction over her. See

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added and citations omitted)); accord Mallory v. Norfolk S. Ry. Co., ---

A.3d ---, ---, 3 EAP 2021, 2021 WL 6067172, *2 (Pa. filed Dec. 22, 2021)

(holding that “consent to jurisdiction by waiving one’s due process rights is an

independent basis for jurisdiction, assuming that the consent is given

voluntarily” (citation omitted)); see also Suffolk Const. Co. v. Reliance

Ins. Co., 221 A.3d 1205, 1208 n.1 (Pa. 2019); see generally Ins. Corp. of

Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-

03 (1982) (noting that “the test for personal jurisdiction requires that the

maintenance of the suit not offend traditional notions of fair play and

substantial justice” (citation omitted and formatting altered)).

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Brown, 30 A.3d at 1205-06; see also Wagner, 768 A.2d at 1119. Like the

Brown Court, which held that the trial court improperly exercised jurisdiction

over the non-party and therefore had no authority to surcharge the non-party,

we similarly hold that the instant trial court had no personal jurisdiction over

non-party Stepmother and therefore no authority to impose a communications

restriction order against her. See Brown, 30 A.3d at 1205-06; accord

Belliveau, 207 A.3d at 395. For these reasons, because the trial court

committed legal error, we vacate the order to the extent the order identifies

Stepmother, and because Father withdrew all of his other claims as discussed

herein, we affirm in all other respects.

Order vacated in part and affirmed in part.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/01/2022

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