No. 121 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Family Division, of Allegheny County at No. 1015 January Term 1979.
Edward F. Urbanik, Pittsburgh, for appellant.
Robert Raphael, Pittsburgh, for appellee.
Spaeth, Wickersham and Lipez, JJ.
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This is an appeal from an order denying exceptions to the master's report in a divorce action and refusing to reopen the report. After the appeal was taken the lower court entered a divorce decree in favor of appellee. We have concluded that we must quash the appeal, as from an interlocutory order, and vacate the decree, as entered without jurisdiction.
On November 29, 1978, appellee filed his complaint in divorce. A master was appointed, and after at least one postponement a master's hearing was scheduled for July 3, 1979. Appellant filed a motion for a delay in the master's hearing until after her petition for counsel fees and expenses had been heard, but on July 2 the lower court denied the motion. The master's hearing was therefore held as scheduled. Neither appellant nor her counsel attended the hearing. About midway through the hearing an associate of
[ 290 Pa. Super. Page 127]
appellant's counsel did appear to place on the record his objection to the hearing being held at that time and to state that a stay of the hearing was then being requested in this court. The request for a stay, presented in the form of a petition for review, was denied by this court that same day and by the Supreme Court on August 7, 1979.
On October 12, 1979, the master filed his report recommending that a divorce be granted, and twelve days later appellant filed exceptions of a boilerplate variety. At some point appellant also presented a petition to re-open the master's report. It is not clear from the record just when or how this petition was presented. Appellant states in her brief that she "sought to re-open" before the master filed his report. Brief at 3. Appellee's brief indicates that the petition was filed at the same time as the exceptions to the master's report. Brief at 5. According to the lower court's docket entries, the petition was filed on June 2, 1980, which was almost four months after the appeal to this court was taken. In any event, when appellant's exceptions to the master's report came before the court en banc for argument, appellant's counsel told the court that he did not deny that the record as it existed established a case for divorce but that the petition to re-open the master's hearing had not been disposed of. Appellant's brief to the court en banc also failed to argue the exceptions and was limited to the petition to reopen. In view of appellant's brief and the concession at oral argument that the record as it existed did establish a case, the court en banc saw the petition to re-open as being the only matter before it. With regard to the petition, the court believed that it was in effect being asked to find that the judge who had denied appellant's motion for a delay in the master's hearing on July 2 had been wrong. The court noted that "[a] long line of cases has held that the decision of one judge of the Court of Common Pleas should not be reviewed by another judge of the same court, absent a change in circumstances. [Citations omitted.]" Slip op. at 2. The court then entered an order dated January 31, 1980, dismissing the exceptions and denying the petition to re-open. It was from that order that this appeal
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was taken on February 12. On February 14, 1980, the court entered ...