No. 2504 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action, Law, of the County of Delaware at No. 79-12144.
E. Lawrence Hannaway, Philadelphia, for appellant.
Madaline B. Tomlinson, Media, for appellee.
Montemuro, Hoffman and Van der Voort, JJ.
[ 300 Pa. Super. Page 508]
On June 29, 1979, appellee-husband filed an action in divorce against appellant-wife. Appellant filed preliminary objections. Preliminary objections were dismissed and on January 17, 1980 appellant filed her answer and counterclaim. A master's hearing was scheduled for April 29, 1980, but was continued at appellant's request. On September 4, 1980, appellant filed a petition to proceed under the Divorce Code of 1980. No answer to such petition was filed. After oral argument, which was not recorded, the lower court dismissed appellant-wife's petition on October 6, 1980. This appeal followed.*fn1
This court, sitting en banc, has held that an order, denying an application that the divorce action proceed under the new Divorce Code, is appealable. Gordon v. Gordon, 293 Pa. Superior Ct. 491, 439 A.2d 683.*fn2 Therefore, appellee's contention
[ 300 Pa. Super. Page 509]
presented prior to Gordon, that the order is interlocutory and therefore unappealable is not a correct statement of the law. Judge Spaeth's opinion in Gordon, joined by seven other members of this court set forth the extent of the trial court's authority in denying or granting such an application.
The Gordon majority held that:
"when the application was presented, the lower court should have asked whether granting it would further 'the policy of the Commonwealth' as declared by the legislature when it enacted the Divorce Code. 23 P.S. § 102. As applied to the facts of this case, that means that the lower court should have asked whether granting the application would 'deal[ ] with the realities of matrimonial experience,' 23 P.S. § 102(a)(1), '[m]itigate the harm to the spouses,' 23 P.S. § 102(a)(4), and '[e]ffectuate economic justice,' 23 P.S. § 102(a)(6)." Id. at 685.
In this case, appellant's petition averred that unless she was permitted to seek equitable distribution, support for two minor children, and alimony pursuant to the Divorce Code of 1980, she would "suffer grave and irreparable harm and injury and a substantial loss of her rights and interests . . . ."
The lower court opined "that no equitable considerations exist[ed] in favor of allowing" appellant to proceed under the new code. The court found that she was currently employed and that a partition action was available for the division of joint property. The majority decisions in Gordon holds that the court in such situations must exercise "some discretion", however, the range of discretion is "extremely narrow". That discretion is limited to considering whether the grant of the request would be consistent with the Divorce Code, 439 A.2d at 692. The lower court in Gordon denied the application finding: "no equitable considerations" existed ...