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filed: December 18, 1981.


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


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. § 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 issues presented, exercise a "broad discretionary power of review" to take jurisdiction of the appeals. Brief for Appellant at 18-19.

If the holding of Gurnick correctly stated our jurisdiction, appellant's argument that we should hear these appeals would have merit, for in Gurnick a panel of this court did hold that it had jurisdiction of an appeal from an interlocutory order where the issue was of "great importance" and a decision would provide "guidance" to the lower courts. Id. at 439, 420 A.2d at 621. However, for the reasons given by Judge HOFFMAN in his dissenting opinion in Gurnick, we have concluded that the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, as amended, 42 Pa.C.S.A. § 101 et seq., does not give this court any such "broad discretionary power

[ 293 Pa. Super. Page 554]

    of review." Only the Supreme Court has such power. Id. § 726. Gurnick is therefore overruled.

This court does have discretionary power to hear an appeal of an interlocutory order that has been certified by the lower court as presenting a "controlling question of law as to which there is substantial ground for difference of opinion and [where] an immediate appeal from the order may materially advance the ultimate determination of the matter[.]" Id. § 702(b). Here, however, the lower court did not certify either of the orders in question. If a lower court refuses to certify an interlocutory order,*fn5 the refusal may be tested by means of a petition for review, which if granted permits us to consider the merits of the underlying appeal. Id. § 704 Official Source Note; Pa.R.A.P. 1311 Note. Notwithstanding the lack of orders refusing certification,*fn6 appellant did file a petition for review. On February 20, 1981, at No. 173 Miscellaneous Docket No. 12, however, we denied the petition.

It is therefore evident that if the lower court's orders are indeed interlocutory, we have no jurisdiction of these appeals.

We are sympathetic to appellant's plea that the issues raised by his appeals are of great importance, and that a decision on them will "give guidance to the lower courts and the entire bar . . ." Brief for Appellant at 19. We believe, however, or in any event, we hope, that our decision on other appeals, which arise in cases companion to appellant's and which we have also filed today, Gordon v. Gordon, 293 Pa. Superior Ct. 491, 439 A.2d 683 (1981); Conrad v. Conrad, 293 Pa. Superior Ct. 558, 439 A.2d 717 (1981), provide the needed guidance. In addition, it may be noted, part of that guidance is provided by our decision here, for it is important

[ 293 Pa. Super. Page 555]

    to establish whether an order granting an application that a pending action proceed under the Divorce Code is, or is not, appealable.

We are also sympathetic to appellant for relying on Gurnick. However, we cannot permit that sympathy to affect our judgment. We have no power to enlarge our jurisdiction, which as provided by the Constitution, Article 5, Section 3, is fixed by the legislature, 42 Pa.C.S.A. §§ 702, 704, 708, 741-742. Whenever, and however, it appears that we lack jurisdiction of an appeal, we must quash the appeal. Mitchell v. Center City Cadillac, 287 Pa. Superior Ct. 350, 430 A.2d 321 (1981); Giannini v. Foy, 279 Pa. Superior Ct. 553, 421 A.2d 338 (1980).

As we have indicated, appellant initially believed -- at least so his Statement of Jurisdiction suggests -- that the lower court's orders are not interlocutory but are final orders. If the orders are final, then we have jurisdiction of these appeals.

"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). If the practical effect of an order is to put an appellant out of court by precluding him from presenting the merits of his claim, the order is appealable. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). In one of the cases companion to this one, Gordon v. Gordon, supra, we applied these principles to an order denying an application that a pending action proceed under the Divorce Code. We held that the order was appealable because its effect was to put the appellant out of court as far as any affirmative case of her own was concerned. While she remained in court to defend against her husband's claims that she had committed indignities and that he was an innocent and injured spouse, she was prevented from presenting her own claims under the Divorce Code for equitable distribution and alimony. We reasoned that in

[ 293 Pa. Super. Page 556]

    these circumstances she was in the same position as the appellant in T.C.R. Realty, Inc. v. Cox, supra, who remained in court to defend against a counterclaim but whose entire case-in-chief had been dismissed by the lower court.

When these same principles are applied to the orders here, which granted an application that a pending action proceed under the Divorce Code, it is clear that neither party is prevented by the transfer from presenting any claims or defenses that could have been presented under the Divorce Law. Appellant's claim that he is entitled to a divorce because of appellee's marital misconduct remains cognizable under section 201(a) of the Divorce Code. The only effect of the transfer is to add issues to the action, not to foreclose any. It is therefore evident that the orders here are not final orders.

Consistent with, and confirming, this conclusion is the fact that an order granting an application that a pending action proceed under the Divorce Code makes available the protection provided by section 403 of the Code against dissipation of marital property. Thus the order avoids inflicting any irreparable harm, in contrast with an order denying an application, which leaves what might later be determined to be marital property unprotected. As the possibility of irreparable harm indicates finality, so the absence of irreparable harm indicates lack of finality. Pugar v. Greco, supra; Gordon v. Gordon, supra.

No surprise should arise from our conclusion that an order denying an application that an action proceed under the Divorce Code is immediately appealable as a final order, see Gordon v. Gordon, supra, while an order granting such an application is not. Our practice has many examples of the appealability of an order being dependent on which way the lower court has ruled. Lower court orders granting preliminary objections, motions to suppress, or motions for summary judgment, may, depending on their scope, be appealable; orders denying the same motions are not appealable.

[ 293 Pa. Super. Page 557]

    to, and reliance upon, Gordon v. Gordon, 293 Pa. Super.Ct. , 439 A.2d 683, J. 858/81. I therefore concur in the result.

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