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March 2, 2026 Get Citation Alerts Download PDF Add Note

Polito, J. v. Polito W.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1308 MDA 2025
• Precedential Status: Non-Precedential

• Judges: Stabile

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (8K)

• PDF

Combined Opinion

                        by [Victor P. Stabile](https://www.courtlistener.com/person/8247/victor-p-stabile/)

J-S45001-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JULIE L. POLITO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM J. POLITO :
:
Appellant : No. 1308 MDA 2025

Appeal from the Order Entered August 20, 2025
In the Court of Common Pleas of York County
Civil Division at No: 2020-FC-000729-03

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED: MARCH 2, 2026

In this pro se appeal, William J. Polito (Appellant) seeks review of a

custody order entered by the Court of Common Pleas of York County (trial

court). Appellant was granted partial physical custody of his minor child,

T.B.P., in 2023, and the child’s mother, Julie L. Polito (Appellee), was granted

primary physical custody. Protracted litigation ensued, resulting in the order

on review (entered on August 18, 2025), which reaffirmed the prior order and

found Appellant in contempt. Appellant now argues, in relevant part, that the

subject order is deficient because the trial court did not rule on his own cross-

petition to hold Appellee in contempt. Finding partial merit in that argument,

we must quash this appeal as interlocutory and remand the case so that all

claims between the parties may be fully disposed of.

---

• Retired Senior Judge assigned to the Superior Court. J-S45001-25

The trial court has aptly summarized the pertinent case facts in its

opinion as follows:

The parties are the natural parents of child T.B.P. [also referred
to herein as “Child”] who is 11 years old. [Appellee] lives in
Arizona, and [Appellant] lives in Pennsylvania. Parties have a
lengthy history before this court. As relevant to this appeal, on
July 24, 2024 and August 18, 2025, the parties were before the
court on [Appellee’s] petition for special relief, contempt, and
petition to modify custody related to the court's final custody order
of September 5, 2023 and its order on special relief entered on
December 29, 2023.

Regarding [Appellee], the September 5, 2023 order permitted her
to relocate to Arizona and granted her primary physical custody.
Regarding [Appellant], the September 5, 2023 order granted him
partial physical custody of T.B.P. on fall and spring breaks,
Christmas/winter breaks, and during summer breaks. Also,
[Appellant] was ordered to pay for Child’s transportation costs to
and from Arizona on fall and spring breaks, returning Child the
day before school starts. The order contained provisions requiring
parties to consider T.B.P.'s welfare and convenience in addressing
the custody schedule and any changes and not to make
disparaging remarks about the other parent.

The December 29, 2023 order on special relief and contempt
amended the September 5, 2023 custody order, requiring the
parties to use OurFamilyWizard [(“OFW”)] for communication
regarding T.B.P. The order also provided that Child's flights did
not have to be nonstop flights. Finally, the order "direct[ed] that
communications with the child shall occur such that he's able to
have private communications with the other parent whenever
possible."

[Appellee’s] petitions were filed on April 17, 2024. Subsequently,
an interim custody order entered on May 21, 2024 suspended
[Appellant’s]s rights of partial physical custody. At the first day of
trial, on July 24, 2024, after the court interviewed T.B.P. in
camera, the parties agreed to continue the matter to allow time
for Child's and [Appellant’s] individual therapy, [Appellant’s]
psychological evaluation, and reunification counseling for
[Appellant] and T.B.P., which the court ordered. Also, an active

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J-S45001-25

Protection From Abuse (PFA) order against [Appellant], in favor of
[Appellee], was issued in Arizona and is in effect from July 2024
to July 2026.

After insufficient progress was made relative to reunification
counseling, on April 10, 2025, [Appellant] filed but did not
present a petition for special relief, to obtain the transcript
of T.B.P.'s testimony from July 24, 2024, and for contempt
to preserve argument. [Appellee] responded by filing another
petition for special relief, requesting that the matter be scheduled
for trial. Thus, at a status conference on April 29, 2025, the parties
agreed that the matter required a trial, which the court scheduled
for August 18. 2025.

The August 18, 2025 order, which is the subject of this
appeal, continued the suspension of [Appellant’s] partial
physical custody and suspended reunification counseling.
The order also found [Appellant] in contempt of the
September 5, 2023 custody order, which was affirmed with
modification by the May 21, 2024 interim order, which was
adopted as a final order on August 18, 2025. The order did
not indicate whether the court found [Appellee] in
contempt. [Appellant] appealed the court's finding that he was
in contempt. As relevant to this appeal, [Appellee’s] petition for
contempt alleged that [Appellant] had violated the Welfare of the
Child To Be Considered provision, the Physical Custody provision,
and the Disparaging Remarks provision attached to the
September 5, 2023 order and the requirement to use OFW for
communication in the December 29, 2023 order. [Appellee]
alleged that the violations were in connection with T.B.P. 's missed
flight to her home from [Appellant’s] home after [Appellant’s]
period of custody during spring break in March 2024. [Appellee]
believes [Appellant] missed the flight intentionally.

---

The court found T.B.P.'s and [Appellee’s] testimony
credible. The court found [Appellant’s] testimony far less
credible. Even though Child's flight was changed, apparently to
an earlier departure time, [Appellant’s] testimony did not address
the Child's testimony that the front desk agent indicated that they
would hold the flight and Child could still make the flight. Based
on unrefuted testimony, it appears that [Appellant] chose to take
a flight the following day, knowing that Child was already at the

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J-S45001-25

airport and could make the flight and knowing that [Appellee] was
in the airport in Atlanta waiting. [Appellant’s] testimony that he
both knew [Appellee] was going to be in Atlanta and that she kept
saying that she would not be in Atlanta is contradictory.

It appears from [Appellant’s] testimony that he chose not to tell
the airline that [Appellee] would be in Atlanta to meet T.B.P. The
court found that [Appellant] did not consider T.B.P.'s welfare in
this custody exchange with [Appellee] and that he disparaged
[Appellee] by telling Child that she did not do things right and that
he would be taken away from her, upsetting T.B.P. in the process.

The court notes that even with the delay, [Appellant] did return
Child by the time specified in the order and paid for tickets as
ordered. Compliance with these provisions notwithstanding, the
court found [Appellant] in contempt for the airport incident
in relation to the provisions regarding considering the
child's welfare and the provision forbidding disparaging
the other parent. The court issued sanctions pursuant 23 Pa.C.S.
§ 5323(g) to encourage [Appellant’s] compliance with its orders
going forward. The court chose a sanction that was equivalent to
the out-of-pocket costs [Appellee] incurred from having to spend
the night in Atlanta. [Appellant’s] pro se appeal followed.

Trial Court 1925(a) Opinion, 10/8/2025, at 1-7 (internal citations and

footnotes omitted, emphasis added).

Appellant now raises three claims in his brief:

1. Whether the trial court committed an error of law by failing to
   address Appellant’s petition for contempt in its final order[.]

2. Whether the trial court abused its discretion by misapplying the
   September 5, 2023 custody order and finding Appellant in
   contempt for conduct unrelated to that order[.]

3. Whether the trial court denied Appellant due process by
   refusing to allow an investigation into parental alienation and
   failing to consider expert evidence recommending such
   investigation[.]

Appellant’s Brief, at 1-3.

-4-
J-S45001-25

Appellant’s first claim – which we find dispositive – is that the trial court

erred in issuing the subject custody order without ruling on Appellant’s cross-

petition to hold Appellee in contempt.

A trial court's rulings with respect to a contempt petition will not be

disturbed absent an abuse of discretion. See Guadagnino v. Montie, 646

A.2d 1257, 1259 (Pa. Super. 1994). An abuse of discretion occurs when the

trial court overrides or misapplies the law, its judgment is manifestly

unreasonable, or the evidence shows that the court's decision is the result of

partiality, prejudice, bias, or ill will. See Holderman v. Hagner, 760 A.2d

1189, 1192 (Pa. Super. 2000).1

Here, although Appellant has not framed his claim as a jurisdictional

issue, the lack of a ruling on his cross-petition for contempt implicates this

Court’s authority to consider the merits of his appeal. “The question of subject

matter jurisdiction may be raised at any time, by any party, or by the court

sua sponte.” In re Navarra, 185 A.3d 342, 348 (Pa. Super. 2018). For such

issues, “[o]ur standard of review is de novo, and our scope of review is

---

1 A party may be found in contempt for noncompliance with a custody order.

See 23 Pa.C.S.A. § 5323(g). A finding of civil contempt is sustained where
three elements are proven by a preponderance of the evidence:

(1) that the contemnor had notice of the specific order or decree
which he is alleged to have disobeyed; (2) that the act constituting
the contemnor's violation was volitional; and (3) that the
contemnor acted with wrongful intent.

P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation omitted).

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J-S45001-25

plenary.” Paluti v. Cumberland Coal LP, 122 A.3d 418, 423 (Pa. Super.

2015).

This Court only has the authority to consider the merits of an appellate

claim when review is sought from:

(1) a final order or an order certified as a final order (Pa.R.A.P.
341); (2) an interlocutory order as of right (Pa.R.A.P. 311); (3)
an interlocutory order by permission (Pa.R.A.P. 312, 1311, 42
Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P. 313).

Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super. 2006), appeal denied, 918

A.2d 747 (Pa. 2007) (quoting Pace v. Thomas Jefferson Uni. Hosp., 717

A.2d 539, 540 (Pa. Super. 1998) (internal citations omitted)).

The Pennsylvania Rules of Appellate Procedure in effect at the relevant

times have defined an appealable “final order” as follows:

a) General rule. Except as prescribed in subdivisions (d), and
(e) of this rule, an appeal may be taken as of right from any final
order of an administrative agency or lower court.

(b) Definition of final order. A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) (Rescinded);

(3) is entered as a final order pursuant to subdivision (c) of this
rule; or

(4) is an order pursuant to subdivision (f) of this rule.

(c) Determination of Finality. When more than one claim for
relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim . . . the trial court . . . may
enter a final order as to one or more but fewer than all of
the claims and parties only upon an express determination
that an immediate appeal would facilitate resolution of the

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J-S45001-25

entire case. Such an order becomes appealable when
entered. In the absence of such a determination and entry
of a final order, any order or other form of decision that
adjudicates fewer than all the claims . . . shall not
constitute a final order.

Pa.R.A.P. 341(a)–(c) (emphasis added).

Appellant and Appellee both filed cross-petitions in this case alleging

that the other was in contempt of a binding custody order. Each cross-petition

was filed at the same docket number (No. 2020-FC-729-03), and none of their

respective claims were ever severed by court order, much less split into

separate, independent actions.

Appellant’s claims were asserted in his “Petition for Special Relief,”

which contained the count, “Petition for Contempt – Preserve Argument.” See

Petition for Special Relief, 4/10/2025, at paras. 20-30. Appellant alleged that

Appellee should be held in contempt because she did not ensure T.B.P.’s

privacy during phone calls with Appellant, instead surreptitiously listening in

on the calls or allowing the child’s step-father to be present. Appellant alleged

further that Appellee was encouraging T.B.P.’s separation from him. See id.2

Despite having filed a cross-petition, Appellant stated, through counsel,

at the status hearing held on April 29, 2025, that he did not wish to present

the issue of Appellee’s alleged contempt at that time. Further, at the trial held

on August 18, 2025, Appellant did not ask the trial court to hold Appellee in

contempt after the trial court advised the parties that they would only be

---

2 In addition, Appellant’s petition included a request for the trial court to
approve reunification counseling. See Petition for Special Relief, 4/10/2025,
at paras. 1-15.

-7-
J-S45001-25

proceeding that day on Appellee’s cross-petition. And after finding Appellant

to be in contempt, when he was asked if he had any questions, he responded

through counsel that he did not.

However, Appellant did make it clear to the trial court that he did not

wish to waive the claim in his cross-petition to hold Appellee in contempt. As

Appellant stated in his petition, and as his counsel stated to the trial court,

Appellant sought to “preserve an argument for contempt.” N.T. Status

Hearing, 4/29/2025, at 2. Accordingly, Appellant did abandon or otherwise

waive the claims in his cross-petition to hold Appellee in contempt, as the trial

court seems to suggest in its 1925(a) opinion. See Trial Court Opinion,

10/8/2025, at 10-11.3

---

3 We further note that, under the severance rule, Pa.R.Civ.P. 213(b), the trial

court “may, on its own motion or on motion of any party, order a separate
trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of
any separate issue, or of any number of causes of action, claims,
counterclaims, set-offs, cross-suits, or issues.” Where a cause of action or
claim has been severed, the severance splits it into an independent action “for
all purposes, including trial and appellate procedure.” Stevenson v. General
Motors Corp., 521 A.2d 413, 417 (Pa. 1987) (quoting Kaiser v. Meinzer,
414 A.2d 1080, 1085 (Pa. Super. 1979), appeal dismissed, 445 A.2d 104 (Pa.
1982)). “Hence, when two related causes of action have been severed, a final
order disposing of only one of them is not interlocutory despite the fact that
the other is outstanding.” DiDio v. Phila. Asbestos Corp., 642 A.2d 1088,
1093 (Pa. Super. 1994).

The present case is not governed by Rule 213(b) because Appellant’s petition
for contempt was not severed, as he had only advised the trial court that, at
the time of the trial held on April 29, 2025, he did not intend to present any
argument on his own contempt claim against Appellee, and he intended to
assert the claim for “preservation” purposes. The trial court held a separate
(Footnote Continued Next Page)

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J-S45001-25

It follows that Appellant has sought review of an interlocutory order

which, for purposes of Pa.R.A.P. 341 is non-final and not immediately

appealable. Additionally, we find that none of the exceptions to the finality

requirement of Pa.R.A.P. 341 are implicated by the facts of this case. The

order was neither interlocutory nor collateral, and the trial court made no

express determination of finality. See Pa.R.A.P. 341(b)-(c). Having

determined that this appeal must be quashed as interlocutory due to our lack

of jurisdiction, we cannot consider the merits of Appellant’s remaining claims

at the present juncture.

Appeal quashed. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

---

trial on Appellee’s cross-petition, but Appellant’s cross-petitions remained on
the same docket, and no severance order was entered. Thus, the present
case does not implicate Rule 213, and the lack of a ruling on Appellant’s
petition for contempt prevents the order on review from being appealable as
a final order. See e.g., McCutcheon v. Phila. Elec. Co., 788 A.2d 345, 350
n.8 (Pa. 2002) (rejecting argument that unresolved cross-claims of parties
were severed from matters disposed of in appealed order because “[t]he trial
court's language and the manner by which it decided the cross-claim would
proceed did not split the cross-claim from the other claims into an independent
action for all purposes.”); see also Radzierez v. Kunkle, No. 1157 EDA 2024
(Pa. Super. filed May 22, 2025) (unpublished memorandum) (quashing appeal
for lack of final order because trial court did not “sever” claims into two
independent actions, and “both sets of claims remained on the same docket”).

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J-S45001-25

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 03/02/2026

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