Gordon v. Gordon

CourtSuperior Court of Pennsylvania
Writing for the CourtBefore CERCONE; SPAETH; MONTEMURO; POPOVICH; SHERTZ, J., files a concurring and dissenting opinion in which HESTER; WIEAND; MONTEMURO; POPOVICH; SHERTZ; HESTER; WIEAND
PartiesWilliam R. GORDON v. Rosemarie A. Feeney GORDON, Appellant.
Decision Date18 December 1981

Page 683

439 A.2d 683
293 Pa.Super. 491
William R. GORDON
v.
Rosemarie A. Feeney GORDON, Appellant.
Superior Court of Pennsylvania.
Argued April 23, 1981.
Filed Dec. 18, 1981.

Page 685

[293 Pa.Super. 496] William A. George, Media, for appellant.

Stanley M. Shingles, Philadelphia, for appellee.

Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, WICKERSHAM, BROSKY, DiSALLE, JOHNSON, MONTEMURO, POPOVICH, SHERTZ and WIEAND, JJ.

SPAETH, Judge:

This is a divorce action. The action was commenced under the Divorce Law of 1929, 1 and was pending on July 1, 1980, when the Divorce Code of 1980 2 became effective. Section 103 of the Divorce Code provides that "upon application granted," a pending action shall proceed under the Divorce Code instead of under the Divorce Law. Appellant, as the wife-defendant, filed an application that this action proceed under the Divorce Code. The reason she filed the application was to take advantage of provisions of the Divorce Code that direct equitable distribution of marital property and, in certain circumstances, payment of alimony after divorce. The Divorce Law has no such provisions, so that if the action were to proceed under it, and appellant were divorced from her husband, she would be entitled only to her share of property that had been held by the entireties and would not be entitled in any circumstances to alimony. The lower court denied the application, and the principal issue on this appeal is whether that was error. We hold that when the application was presented, the lower court should have asked whether granting it would further "the policy of the Commonwealth" as declared by the legislature when it enacted the Divorce Code. 23 P.S. § 102. As applied to the facts of [293 Pa.Super. 497] this case, that means that the lower court should have asked whether granting the application would "deal( ) with the realities of matrimonial experience," 23 P.S. § 102(a)(1), "(m)itigate the harm to the spouses," 23 P.S. § 102(a)(4), and "(e)ffectuate economic justice," 23 P.S. § 102(a)(6). It is clear that granting the application would further these objectives. Accordingly, in denying the application the lower court committed error. We therefore reverse and remand with instructions that the action proceed under the Divorce Code.

I

Before we may reach the principal issue, as we have just defined it, we must clear away a good deal of procedural underbrush.

Appellee, the husband-plaintiff below, commenced this action by filing a complaint in divorce a.v.m. on January 2, 1979, charging appellant, his wife, with indignities. Appellant contested the action, and nine hearings were held before a master. On

Page 686

April 2, 1980, the master filed his report, recommending that appellee be granted a divorce. Meanwhile, on March 25, 1980, the legislature had enacted the Divorce Code. On April 2, 1980, the Governor signed the Divorce Code, to become effective on July 1, 1980. On July 7, 1980, appellant filed an application that the action proceed under the Divorce Code. On July 29, 1980, the lower court entered an order denying the application. Appellant appealed to this court at Number 1902 Philadelphia 1980. On September 4, 1980, the lower court entered a decree granting appellee a divorce on the ground of indignities. Appellant appealed to this court at Number 2150 Philadelphia 1980. On February 6, 1981, the two appeals were consolidated. Meanwhile, on September 3, 1980, appellee had filed a motion to quash Appeal Number 1902, from the order denying appellant's application, claiming that the order was an unappealable interlocutory order. On February 20, 1981, we denied the motion to quash, without prejudice, however, to the parties' rights to brief and argue the question whether the order was immediately appealable.

[293 Pa.Super. 498] A

It will be convenient to consider first the status of Appeal Number 2150, from the decree granting appellee a divorce. As just stated, when the lower court entered the decree, appellant had already filed Appeal Number 1902, from the lower court's earlier order denying her application that the action proceed under the Divorce Code. This being so, the lower court had no jurisdiction to proceed further with the case. Pa.R.A.P. 1701. The court was therefore without power to enter the decree granting appellee a divorce. It is true that the court believed that its order denying appellant's application was an interlocutory order from which no appeal could be taken, and had filed an opinion to that effect. Even if correct, however, and as we shall see, it was not, this belief was irrelevant. This court has held that "(t)he fact that the appellate court ultimately quashes an appeal because it was improperly taken from an interlocutory order does not add strength or validity to an order entered while said appeal is pending. It is for the appellate court to determine the merits of the appeal, and not the lower court." Weise v. Goldman, 229 Pa.Superior Ct. 187, 323 A.2d 31 (1974). We must therefore vacate the decree granting appellee a divorce, and dismiss Appeal Number 2150 as moot.

B

We may now consider the status of Appeal Number 1902, from the lower court's order denying appellant's application that the action proceed under the Divorce Code. While the answer to the question whether that order was immediately appealable is not self-evident, it is plain enough.

"Whether an order is final and appealable cannot necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications." (Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975)). We have also said that [293 Pa.Super. 499] if the practical consequence of the order by the trial court is effectively to put an appellant "out of court" the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). Similarly, an order is "final" if it precludes a party from presenting the merits of his claim to the lower court. Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).

Pugar v. Greco, 483 Pa. 68, 74, 394 A.2d 542, 545 (1978).

Stated generally, the policy underlying the principle that an order is not appealable unless it puts the appellant "out of court" is that piecemeal litigation should be avoided; the appellate courts will use their resources more economically if they review a case only once, rather than deciding one issue on one appeal, and another issue on a later appeal. Thus where the trial court on

Page 687

preliminary objections has dismissed one or more counts of a multi-count complaint, but has not dismissed the entire complaint, we have held that the court's order was interlocutory and not appealable. E.g., Bagshaw v. Vickers, --- Pa.Superior Ct. ---, 428 A.2d 664 (1981) (filed April 20, 1981); Giannini v. Foy, 279 Pa.Superior Ct. 553, 421 A.2d 338 (1980).

However, the phrase "out of court" must not be interpreted literally; it is not synonymous with "final." In Commonwealth v. Orsatti, 448 Pa. 72, 75-76, 292 A.2d 313, 315 (1972), the Supreme Court in refusing to quash an appeal, said: "(W)e do not mean to suggest that a final judgment on the original issue raised by the complaint could not have been awaited by the defendants or that, upon appealing from such final judgment, the action of the court below, .... could not then have been assigned for error. But, obviously, such a course would not have afforded expeditious procedure for the ultimate disposition of the entire controversy," quoting Broido v. Kinneman, 375 Pa. 568, 569, 101 A.2d 647, 648 (1954). See also, Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966); Pellegrine v. Home Ins. Co., 200 Pa.Superior Ct. 48, 186 A.2d 662 (1962). It is therefore plain that in deciding whether an order is "final," one must do more than ask only whether the [293 Pa.Super. 500] appellant is "out of court;" one must also ask whether, even if the appellant is still in court, the order is in its "practical aspects," Bell v. Beneficial Consumer Discount, supra, sufficiently final to make it appealable. These considerations explain the rule that "an order is 'final' if it precludes a party from presenting the merits of his claim to the lower court." Pugar v. Greco, supra 483 Pa. at 74, 394 A.2d at 545.

A helpful illustration of this rule may be found in T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). There the appeal was from an order dismissing the appellant's complaint. The Supreme Court acknowledged that in a literal sense, the appellant was not "out of court," for the appellees had filed a counterclaim that remained to be tried. The Court nevertheless held that the lower court's order was appealable, for its "practical ramification ... (was) to completely deprive the litigant of his day in court so far as his claim is concerned." 472 Pa. at 337, 372 A.2d at 724.

In the present case, appellant is in essentially the same position as were the appellants in T.C.R. Realty, Inc. v. Cox, supra; Commonwealth v. Orsatti, supra, and Broido v. Kinneman, supra. If the action is to proceed under the Divorce Law, as appellee asserts it should, appellant is limited to defending on the merits; she may claim that appellee has not proved that she was at fault and that he is an innocent and injured spouse. 23 P.S. § 10. If, however, the action is to proceed under the Divorce Code, appellant may assert claims of her own, specifically, to an equitable distribution of marital property, 23 P.S. § 401(d), and to alimony after divorce, 23 P.S. § 501. Appellant's right to an equitable distribution of marital property would be absolute, that is, unaffected by a finding on the merits that she was at fault and that appellee is innocent and injured and therefore entitled...

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57 practice notes
  • Com. v. Lapia
    • United States
    • Superior Court of Pennsylvania
    • April 12, 1983
    ...472 Pa. 331, 372 A.2d 721 (1977); Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981); Gordon v. Gordon, 293 Pa.Superior Ct. 491, 439 A.2d 683 Our second conclusion is that Commonwealth v. Martz, supra, and Commonwealth v. Kunkel, supra, must also be overruled. The judgment underlyin......
  • Commonwealth v. Lapia
    • United States
    • Superior Court of Pennsylvania
    • February 4, 1983
    ...472 Pa. 331, 372 A.2d 721 (1977); Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981); Gordon v. Gordon, 293 Pa.Superior Ct. 491, 439 A.2d 683 (1981). Our second conclusion is that Commonwealth v. Martz, supra, and Commonwealth v. Kunkel, supra, must also be overruled. The judgment u......
  • Trackers Raceway, Inc. v. Comstock Agency, Inc.
    • United States
    • Superior Court of Pennsylvania
    • December 14, 1990
    ...rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Gordon v. Gordon, 293 Pa.Super. 491, 499, 439 A.2d 683, 686-687 (1981); Stengena v. Madden, 291 Pa.Super. 364, 366, 435 A.2d 1269, 1270 (1981); Mitchell v. Center City Cadillac,......
  • Praisner v. Stocker
    • United States
    • Superior Court of Pennsylvania
    • April 22, 1983
    ...Richfield Co., supra 482 Pa. at 618, 394 A.2d at 493; West v. West, 301 Pa.Super. 75, 76, 446 A.2d 1342, 1342 (1982); Gordon v. Gordon, 293 Pa.Super. 491, 498, 439 A.2d 683, 686 (1981). As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutor......
  • Request a trial to view additional results
56 cases
  • Com. v. Lapia
    • United States
    • Superior Court of Pennsylvania
    • April 12, 1983
    ...472 Pa. 331, 372 A.2d 721 (1977); Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981); Gordon v. Gordon, 293 Pa.Superior Ct. 491, 439 A.2d 683 Our second conclusion is that Commonwealth v. Martz, supra, and Commonwealth v. Kunkel, supra, must also be overruled. The judgment underlyin......
  • Commonwealth v. Lapia
    • United States
    • Superior Court of Pennsylvania
    • February 4, 1983
    ...472 Pa. 331, 372 A.2d 721 (1977); Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981); Gordon v. Gordon, 293 Pa.Superior Ct. 491, 439 A.2d 683 (1981). Our second conclusion is that Commonwealth v. Martz, supra, and Commonwealth v. Kunkel, supra, must also be overruled. The judgment u......
  • Trackers Raceway, Inc. v. Comstock Agency, Inc.
    • United States
    • Superior Court of Pennsylvania
    • December 14, 1990
    ...rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Gordon v. Gordon, 293 Pa.Super. 491, 499, 439 A.2d 683, 686-687 (1981); Stengena v. Madden, 291 Pa.Super. 364, 366, 435 A.2d 1269, 1270 (1981); Mitchell v. Center City Cadillac,......
  • Praisner v. Stocker
    • United States
    • Superior Court of Pennsylvania
    • April 22, 1983
    ...Richfield Co., supra 482 Pa. at 618, 394 A.2d at 493; West v. West, 301 Pa.Super. 75, 76, 446 A.2d 1342, 1342 (1982); Gordon v. Gordon, 293 Pa.Super. 491, 498, 439 A.2d 683, 686 (1981). As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutor......
  • Request a trial to view additional results

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