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decided: November 20, 1985.


Appeal from the Order of the Superior Court of Pennsylvania, No. 134 Hbg. 1982, dated March 30, 1984. No. 71 M.D. Appeal Docket, 1984, Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., did not participate in the consideration or decision of this case. Zappala, J., files a dissenting opinion in which Larsen, J., joins.

Author: Nix

[ 509 Pa. Page 90]


The instant divorce action has been in litigation for five years and demonstrates a procedural practice which creates unacceptable delay in the disposition of matrimonial cases. The relevant facts arose in October, 1981 when the Court of Common Pleas of Dauphin County awarded to appellee the sum of $1,000.00 for interim counsel fees and expenses and $1,250.00 for payment of master's fees and stenographic costs. On appeal the Superior Court, 326 Pa. Super. 271, 473 A.2d 1087, held: (1) that an order granting interim fees and expenses is a final and appealable order; (2) that there was no abuse of discretion by the trial court in awarding to

[ 509 Pa. Page 91]

    appellee $1,000.00 for interim counsel fees; and, (3) that under section 401 of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 401, 23 P.S. § 401 (Supp. 1985), master fees and stenographic expenses are costs which can be awarded only upon final disposition of the case. For the reasons that follow, we hold that these questions are interlocutory and are therefore not available for an interim appeal.

The first problem presented in this appeal is the question as to which issues are properly before us. The appeal to this Court was requested pursuant to Rule of Appellate Procedure 1112(a) by husband-appellant seeking reversal of that portion of the Superior Court's ruling approving an interim award of counsel fees and expenses imposed by the trial court. Originally, appellant initiated an appeal to the Superior Court and appellee filed a motion to quash on the grounds that the appeal was interlocutory. The Superior Court dismissed the motion to quash and proceeded to reach the merits of that appeal. As stated, the Superior Court affirmed in part and reversed in part the order of the Court of Common Pleas of Dauphin County. Thereupon the appellant requested review by this Court of that portion of the Superior Court order that was adverse to his position. Appellee did not attempt to file a cross appeal either to that portion of the Superior Court's order that was adverse to her or to the Superior Court's ruling on her motion to quash.

[ 509 Pa. Page 92]

We granted this allocatur to address the appealability of interim orders of this type in divorce proceedings because of the importance of that question. Although the parties have not properly preserved that particular issue before us it is nevertheless appropriate for us in this instance to reach that issue. The question of the appealability of an order goes to the jurisdiction of the Court requested to entertain the question. Vendetti v. Schuster, 418 Pa. 68, 208 A.2d 864 (1965); Reading Co. v. Willow Development Co., 407 Pa. 469, 181 A.2d 288 (1962); McGee v. Singley, 382 Pa. 18, 114 A.2d 141 (1955); Sullivan v. Page 92} City and County of Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954); Stadler v. Borough of Mount Oliver, 373 Pa. 316, 95 A.2d 776 (1953). Questions relating to jurisdiction are not waived by the failure of the parties to raise them, and may properly be raised by the court sua sponte.*fn1 Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); School District of Borough of West Homestead v. Allegheny County Board of School Directors, 440 Pa. 113, 269 A.2d 904 (1970); Daly v. School District of Darby Township, 434 Pa. 286, 252 A.2d 638 (1969); Commonwealth, ex rel. Ransom Township v. Mascheska, 429 Pa. 168, 239 A.2d 386 (1968); Barco, Inc. v. Steel Crest Homes, 420 Pa. 553, 218 A.2d 221 (1966); Vendetti v. Schuster, supra. In view of our disposition, we need only consider the appealability of interim orders in divorce actions.

The Superior Court, relying upon its recent decision in Sutliff v. Sutliff, 326 Pa. Super. 496, 474 A.2d 599 (1984), held that there is immediate review of the discretion employed by trial courts in decisions involving interim relief in divorce actions. In Sutliff the Superior Court reasoned that both grants and denials of such interim relief are final, appealable orders because the relief is not part of the merits of the main cause of action; the matter is too important to be denied review; and, if postponed, the claimed right would be irreparably lost. Id., 326 Pa. Superior Ct. at 499-502, 474 A.2d at 600-601. We must now examine that position.*fn2

The right to interim relief is derived from section 502 of the Divorce Code which states: "The court may, upon

[ 509 Pa. Page 93]

    petition, in proper cases, allow a spouse reasonable alimony pendente lite and reasonable counsel fees and expenses." 23 P.S. § 502 (Supp. 1985).*fn3 The Code is silent as to whether orders pursuant to section 502 are final and appealable. We must therefore turn to our Rules of Appellate Procedure and case law construction thereunder to determine whether a section 502 order is a final, appealable order.

It is axiomatic that an appeal will lie only from a final order unless otherwise permitted by statute or rule. Adoption of G.M., 484 Pa. 24, 398 A.2d 642 (1979); Pugar v. Greco, 483 Pa. 68, 72, 394 A.2d 542 (1978); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968); Stadler v. Mt. Oliver Borough, supra; Coleman v. Huffman, 348 Pa. 580, 36 A.2d 724 (1944); Paul v. Smith, 343 Pa. 63, 21 A.2d 919 (1941). See also Pa.R.A.P. 311, 312 and 341(a).

In T.C.R. Realty, Inc., supra, we stated:

We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Piltzer v. Independence Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974); James Banda Inc. v. Virginia Manor Apartments, Inc., 451 Pa. 408, 409, 303 A.2d 925, 926 (1973). Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant "out of court." Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 ...

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