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ROBERT I. TOLL v. NORMA TOLL (12/18/81)

filed: December 18, 1981.

ROBERT I. TOLL, APPELLANT,
v.
NORMA TOLL



Nos. 1962, 1963 Phila., 1980, Appeal from the Orders of the Court of Common Pleas, Civil Action, of Montgomery County at No. 73 - 8806.

COUNSEL

Albert Momjian, Philadelphia, for appellant.

Parker W. Wilson, Norristown, for appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham, Brosky, DiSalle, Johnson, Montemuro, Popovich, Shertz and Wieand, JJ. Wieand, J., files a concurring opinion in which Hester, J., joins. Shertz, J., files a concurring statement. DiSalle, J., notes dissent.

Author: Spaeth

[ 293 Pa. Super. Page 551]

This case arises on two appeals, which have been consolidated. One appeal is from an order granting appellee's

[ 293 Pa. Super. Page 552]

    application that appellant's pending action to divorce her should proceed under the Divorce Code of 1980.*fn1 The other appeal is from an order denying appellant's petition that the action should continue under the Divorce Law of 1929.*fn2 We have concluded that both orders are interlocutory and not appealable. The appeals will therefore be quashed.

Appellant filed his complaint in divorce on July 19, 1973. For various reasons, including a protracted battle over appellee's entitlement to support, the action was still pending on July 1, 1980, the effective date of the Divorce Code. On July 10, 1980, appellee filed an application to proceed under the Code. In the application she said that she wished to have the benefits of the Code with regard to no-fault divorce, equitable distribution, and alimony, and that granting the application would accomplish the objectives listed in section 102(a) of the Code. With no notice to appellant or opportunity to be heard, the lower court, by order dated July 11 and docketed on July 16, 1980, granted the application. Appeal Number 1962 is from that order.

On a date not reflected in the docket, but sometime after July 16, 1980, appellant filed a petition, with a rule to show cause, to have the action continue under the Divorce Law. Although not labeled as such, the petition was in effect a petition to strike the previously granted application for transfer. The lower court, by order dated July 23 and docketed July 29, 1980, denied the petition, also without providing appellant an opportunity to be heard.*fn3 Appeal Number 1963 is from that order.*fn4

[ 293 Pa. Super. Page 553]

Appellee filed motions that both appeals be quashed as interlocutory. On February 20, 1981, we denied the motions, without prejudice to the parties' rights to brief and argue whether we had jurisdiction of the appeals.

In his Statement of Jurisdiction appellant recites that we have jurisdiction of both appeals pursuant to the section of the Judicial Code that gives us jurisdiction over appeals from "final orders" of courts of common pleas. 42 Pa.C.S.A. ยง 742. However, in the body of his brief appellant does not rest upon this statement. Instead, citing Gurnick v. Government Employees Insurance Co., 278 Pa. Superior Ct. 437, 420 A.2d 620 (1980), he argues that even if the orders are interlocutory, we should, because of the importance of the ...


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