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JOHN DUKMEN v. LAVERNE DUKMEN (06/20/80)

filed: June 20, 1980.

JOHN DUKMEN
v.
LAVERNE DUKMEN, APPELLANT



No. 831 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Schuylkill County, Civil Division, S-966 Sept. Term, 1975.

COUNSEL

Lester Krasno, Pottsville, for appellant.

Steven Kachmar, Schuylkill Haven, for appellee.

Price, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.

Author: Watkins

[ 278 Pa. Super. Page 532]

This is an appeal from the order of the Court of Common Pleas of Schuylkill County, Civil Division, by the defendant-appellant, Laverne Dukmen, from a final decree granting her husband a divorce based upon indignities to the person.

Testimony was heard by a master on June 11 and 30, 1976. The master filed a report recommending that a divorce be granted, and the lower court accepted the report, entering a divorce decree on June 6, 1977. On June 27, 1977, the wife filed notice of appeal to this Court. On July 12, 1977, however, the lower court granted the wife's petition for reargument, and on July 25, 1977, heard additional testimony by the parties. On December 30, 1977, the lower court affirmed its original decree, and on January 26, 1978, the wife filed a second notice of appeal.

Although they are raised by neither of the parties, of the lower court, we are troubled by the procedural irregularities that accompany this case. The lower court's order of July 12, 1977, granting appellant's petition for reargument was filed more than thirty (30) days after the divorce decree of June 6, 1977. Under Pa.R.A.P. 903(a) and 1701(b)(3) the lower court had until July 6, 1977, to file an order granting reconsideration (which was the effect of its order granting reargument); after that date, it lacked jurisdiction to conduct further proceedings. Strickler v. United Elevator Co., Inc., 257 Pa. Super. 598, 391 A.2d 614 (1978); Provident National Bank v. Rooklin, 250 Pa. Super. 194, 378 A.2d 893 (1977). Because the lower court lacked jurisdiction to enter its order of July 12, 1977, and to conduct the hearing held on July 25, 1977, the order entered on December 30, 1977,

[ 278 Pa. Super. Page 533]

    affirming the original divorce decree of June 6, 1977, was a nullity. It follows that appellant could not properly take an appeal from the order of December 30, 1977. However, the only appeal that has been perfected is the wife's appeal from the order of December 30, 1977. Her appeal from the original divorce decree of June 6, 1977, has never been perfected, for, as we are informed by our Prothonotary, her notice of appeal from that decree has not been docketed with this Court as required by Pa.R.A.P. 907. In these circumstances, we must dismiss the wife's appeal from the order of December 30, 1977. The question then arises of what to do with her appeal from the original divorce decree of June 6, 1977.

The wife's failure to perfect her appeal from the original divorce decree of June 6, 1977, does not deprive us of the power to decide the appeal on the merits. Pa.R.A.P. 902 provides:

"Failure of an appellant to take any step other than the timely filing of a notice of appeal [with the clerk of the lower court] does not affect the validity of the appeal, but it is grounds only for such action as the appellate court deems appropriate, which may include dismissal of the appeal."

See also, Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978) (Commonwealth filed timely notice of appeal in lower court but failed to file concurrent notice with SupremeCourt; held: appeal would not be dismissed as ...


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