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SALLY REAGAN OPPERMAN v. D. THEODORE OPPERMAN (03/12/82)

filed: March 12, 1982.

SALLY REAGAN OPPERMAN
v.
D. THEODORE OPPERMAN, APPELLANT. D. THEODORE OPPERMAN, APPELLANT, V. SALLY R. OPPERMAN



No. 1320 Philadelphia, 1980, No. 1321 Philadelphia, 1980, Appeals from Orders of the Court of Common Pleas, Civil Action, of Northampton County at Nos. 355 October Term, 1977--Law and 4 May Term, 1978--Equity.

COUNSEL

John Molnar, Bangor, for appellant.

Gus Milides, Easton, for appellee.

Hester, Cirillo and Popovich, JJ.

Author: Popovich

[ 297 Pa. Super. Page 91]

Appellee, Sally Reagan Opperman, obtained an order from the lower court staying appellant's, D. Theodore Opperman's, Complaints in Divorce A.V.M. and in Equity seeking an accounting of marital property. Appellant appeals from said order. We quash.

This case has an extensive and unusual procedural history, which needs to be reviewed to appreciate the ruling of this Court.

On December 7, 1977, appellee filed a Complaint in Divorce A.V.M. Two months later, on February 3, 1978, appellant filed an Answer and Praecipe for a Bill of Particulars. However, more than a year elapsed before the Praecipe was withdrawn and a Master was appointed. One day before the Master's hearing, on May 24, 1979, appellee obtained an ex parte court order staying all proceedings until a resolution of appellee's Petition to Revoke the Appointment of a Master was made. On July 3, 1979, the Hon. Richard D. Grifo entered an order dismissing the appellee's Petition to Revoke the Master and lifting the stay. Appeals were then taken by the appellee from Judge Grifo's order to the Superior and Supreme Courts of Pennsylvania -- the former appeal at No. 1519 October Term 1979 was quashed by a Per Curiam order dated December 13, 1979, while the latter Petition for Allowance of Appeal at No. 4 E.D. Misc. Docket 1980 was denied on June 5, 1980.

On November 28, 1979, appellant filed a counterclaim on the grounds of indignities and adultery to the appellee's Complaint in Divorce A.V.M. The appellee in turn, on February 20, 1980, obtained court approval to discontinue her Complaint. Nonetheless, the appellant pursued his counterclaim, with court approval, as if it were an original complaint. In response to appellant's action, appellee filed a Praecipe on April 29, 1980 for a Rule for Bill of Particulars and an independent action for Divorce A Mensa et Thoro. Thereafter, appellant filed preliminary objections to the action for legal separation and obtained the scheduling of a Master's hearing for May 5, 1980. However, on May 1, 1980, appellee obtained an ex parte order staying the hearing.

[ 297 Pa. Super. Page 92]

Before deciding whether the present appeal is reviewable, a second cause of action initiated by the appellant needs to be discussed to complete the picture of the instant case. To-wit, on June 6, 1978, appellant filed a Complaint in Equity seeking an accounting of certain personal property jointly owned with the appellee. Appellant contended that appellee wrongfully removed and excluded him from enjoying the natural benefits of this property. Appellee counterclaimed that it was the appellant that was wrongfully excluding her from joint possession of said personal property, which was held as tenants by the entireties.

From the date on which the Complaint in Equity was initiated until November 28, 1979, the parties were involved with the filing of answers, counterclaims, interrogatories and the taking of depositions. In fact, it was not until January 29, 1980, that appellant's counsel filed a praecipe for a non-jury trial with the prothonotary of the Court of Common Pleas of Northampton County. Before a trial date could be scheduled, however, appellee filed a "Motion to Continue Case Pending Disposition of Companion Case," on the basis that, inter alia, "[t]he outcome of the proceedings in the Divorce action w[ould] directly affect the rights of the parties in the instant action insofar as ownership of property [was] concerned . . . ." As a result of said Motion, the lower court (per Judge Robert A. Freedberg) issued an order on May 22, 1980, from which the present appeal was taken, that "all proceedings [be] stayed until further Order of the Court."

Appellant asserts on appeal that the lower court either lacked the authority to grant the stays, or, in the alternative, that, inasmuch as the equity action was ready for trial and the divorce proceeding was scheduled for a Master's ...


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