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BARBARA KATZ v. HAROLD KATZ (08/19/86)

filed: August 19, 1986.

BARBARA KATZ, APPELLEE,
v.
HAROLD KATZ, APPELLANT. BARBARA KATZ, APPELLANT, V. HAROLD KATZ, APPELLEE. (FOUR CASES)



Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 81-06045. Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 81-06045. Appeal from Decree of the Court of Common Pleas, Civil Division, of Montgomery County, No. 81-06045. Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 81-06045. Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 81-06045.

COUNSEL

Theodore R. Mann, Philadelphia, for appellant in No. 1457 and for appellee in Nos. 1730-1733.

David Hoffstein, Philadelphia, for appellant in Nos. 1730-1733 and for appellee in No. 1457.

Wickersham, Wieand and Popovich, JJ.

Author: Wieand

[ 356 Pa. Super. Page 463]

The principal issue in this appeal is whether divorce hearings pertaining to equitable distribution of marital property may be closed to the public. This is an issue of first impression and involves conflicting interests. The trial court concluded that it had been divested of discretion by the decision of the Court of Appeals of the Third Circuit in Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir.1984) and ordered that the hearings be held in an open courtroom accessible to the public. We reverse and remand to permit the trial court to determine whether good cause exists for closing the hearings.

Harold Katz and Barbara Katz were married on August 27, 1974. No children were born of this union, but each

[ 356 Pa. Super. Page 464]

    party had three minor children by a prior marriage. During the early years of their marriage, the parties enjoyed a comfortable, middle-class lifestyle. Although Harold had been involved in a weight loss business prior to the marriage, after marriage the nature of the business changed and became Nutri/System, Inc., which has developed into a multi-million dollar corporation. The modest lifestyle of the couple changed as well. Harold and Barbara entertained often and lavishly, traveled extensively, and purchased a thirty-five room mansion, maintained by a full-time domestic staff. Their annual income rose from approximately $25,000 in 1974 to more than five million dollars in 1981. In that year the parties separated. It was after their separation that Harold purchased the Philadelphia 76ers Basketball Club, Inc.

On April 6, 1981, Barbara instituted an action for divorce, asserting, as well, claims for economic relief. Hearings on the equitable distribution claim were scheduled to begin on February 4, 1985. Prior to commencement of the hearings, Barbara requested that the equitable distribution hearings be held in open court. Harold objected to his wife's request. During an in-chambers conference the trial court ruled that the hearings would be closed. Philadelphia Newspapers, Inc. (P.N.I.) then filed an appeal to this Court, challenging the closure order. The Honorable Phyllis W. Beck, motions court judge, directed that an immediate hearing be held before the trial court on the closure issue. At that hearing Katz advanced three reasons for closing the equitable distribution hearings. The trial court, as we have observed, felt constrained by Publicker Industries, Inc. v. Cohen, supra, to hold that the media had a right of access to the equitable distribution hearings. Therefore, the court entered an order on May 7, 1985, which directed that all future hearings in the divorce action be held in an open courtroom. Katz appealed.

In the meantime, Katz had filed a petition to bifurcate the request for divorce from the economic claims. The motion was granted, after hearing, on May 30, 1985, and a decree

[ 356 Pa. Super. Page 465]

    in divorce was entered on May 31, 1985. Barbara has filed appeals from the order granting bifurcation, from the denial of exceptions thereto, from the decree of divorce and from an order denying exceptions to the decree in divorce. All such appeals have been consolidated for purposes of review.

Before considering Katz's appeal from the trial court's order directing that equitable distribution hearings be conducted in open court, we must determine the appealability of such an order. "The question of the appealability of an order goes to the jurisdiction of the Court requested to entertain the question . . . . 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." Fried v. Fried, 509 Pa. 89, 92, 501 A.2d 211, 212 (1985) (citations and footnote omitted).

"[A]n appeal will lie only from a final order unless otherwise permitted by statute or rule." Id., 509 Pa. at 93, 501 A.2d at 213; Beasley v. Beasley, 348 Pa. Super. 124, 126, 501 A.2d 679, 679 (1985). A final order is one which either ends the litigation or disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-545 (1978). "Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. 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 Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975); Beasley v. Beasley, supra. See also: Praisner v. Stocker, 313 Pa. Super. 332, 337, 459 A.2d 1255, 1258 (1983). An order directing that the trial of equitable distribution claims remain open to the public and press is obviously not a final order. Neither party is put out of court, and the order does not determine or end the economic claims. Cf. Beasley v. Beasley, supra, 509 Pa. at 126, 501 A.2d at 680.

This, however, does not end our inquiry. The courts of Pennsylvania have adopted and followed the rule announced

[ 356 Pa. Super. Page 466]

    in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which recognizes an exception to the final judgment rule. Fried v. Fried, supra 509 Pa. at 94, 501 A.2d at 214; Pugar v. Greco, supra 483 Pa. at 73, 394 A.2d at 545; Beasley v. Beasley, supra; Praisner v. Stocker, supra 313 Pa. Super. at 342, 459 A.2d at 1260-1261.

Under Cohen, an order which is separable from and collateral to a cause of action may become appealable under certain circumstances. Those circumstances, all of which must be present, are as follows: "[the order is] separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corporation, supra, 337 U.S. at 546, 69 S.Ct. at 1225-1226, 93 L.Ed.2d at 1536. See ...


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