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MARY GIARRIZZO KYLE v. ALASTAIR BOYD KYLE (07/25/80)

filed: July 25, 1980.

MARY GIARRIZZO KYLE
v.
ALASTAIR BOYD KYLE, APPELLANT



No. 2007 October Term 1978, Appeal from the Order of the Court of Common Pleas of Bucks County at No. 75 - 9926.

COUNSEL

Stephen I. Weiss, Langhorne, for appellant.

Robert Solomon, Doylestown, for appellee.

Spaeth, Cavanaugh and O'Kicki, JJ.*fn*

Author: Spaeth

[ 280 Pa. Super. Page 61]

This is an action in divorce and annulment. The parties were married in 1969, had two children, and separated in 1974. The wife filed her complaint on November 6, 1975. Since then the husband has filed a variety of motions and appeals. For purposes of this appeal, however, only the following events are relevant.

On March 8, 1977, the lower court appointed a master. On April 5, 1977, the husband filed a Petition Raising a Question of Jurisdiction of Master and Seeking Revocation of His Appointment. The record does not indicate any specific response by the lower court to this petition. However, on May 19, 1977, the lower court dismissed preliminary objections that had been filed by the husband, and ordered the master to schedule a hearing. On May 23, 1977, the husband filed a notice of appeal from this order. On June 16, 1977, while the husband's appeal was pending in this court, the lower court appointed a second master, the first master

[ 280 Pa. Super. Page 62]

    having resigned. On June 21, 1977, this court quashed the husband's appeal. On June 28, 1977, the husband filed a Petition to Vacate the Appointment of the second master. On October 5, 1977, the lower court held a hearing on the petition, and dismissed it. (N.T. 30, 10/5/77.) On February 17, 1978, the master filed a report, recommending that a decree of annulment be entered. Exceptions to the master's report were filed, and on May 9, 1978, the lower court sustained the exceptions and remanded the case to the master for further proceedings on the complaint in divorce. On July 11, 1978, the husband filed two praecipes with the prothonotary of the lower court. The first praecipe, filed pursuant to Pa.R.A.P. 301(d), directed the prothonotary to "prepare, sign and enter an order denying, overruling, and dismissing" the husband's petition to vacate the appointment of the second master. The second praecipe, filed pursuant to Pa.R.A.P. 301(e), directed the prothonotary to enter "an adverse order denying, dismissing and overruling" the husband's petition to vacate the appointment of the second master, because of "the exigency of the case (threatened hearings before Master improperly appointed) impelling an immediate appeal, and being unable to secure the formal entry of an appealable order pursuant to the usual procedures." Also on July 11, 1978, the husband filed with the prothonotary of the lower court notice of appeal to this court, reciting that the appeal was "from the order entered in this matter on the 11th day of July, 1978, insofar as it determines a question of jurisdiction."

The appeal will be quashed, for several reasons.

The record does not disclose any "order entered in this matter on the 11th day of July, 1978." True, on July 17, 1978, the lower court entered two orders, one on each of the two praecipes filed by the husband. On the first praecipe the court directed the prothonotary to "[d]isregard above Praecipe. Do not enter adverse order. Defendant [husband] continues to pursue dilatory tactics." On the second praecipe the court directed the prothonotary to "[d]isregard above. Do not enter adverse order." However, the husband has not appealed from either of these orders.

[ 280 Pa. Super. Page 63]

Ordinarily, this failure would be definitive. Here, however, the husband has mostly been acting pro se (he was represented by counsel at the master's hearing and on exceptions to the master's report). In these circumstances, we are willing to regard the husband's appeal as unintentionally premature, and as though taken from the ...


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