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filed: June 30, 1988.


Appeal from the Order entered July 15, 1987 in the Court of Common Pleas of Montgomery County, Civil, No. 87-08840


Lynn Z. Gold-Bikin, Norristown, for appellant.

Neil Kitrosser, Philadelphia, for appellees.

Cirillo, President Judge, and McEwen and Montemuro, JJ.

Author: Per Curiam

[ 375 Pa. Super. Page 342]

This appeal has been taken from an order, entered by the distinguished Judge Marjorie C. Lawrence, which rescinded and revoked a divorce decree which had previously been entered upon appellant's complaint pursuant to 23 P.S. § 201(d)(1)(i).*fn1 Appellant claims that the hearing court

[ 375 Pa. Super. Page 343]

    lacked the authority to rescind the decree. We disagree and affirm the order of the hearing court.

Appellant initiated this action by the filing of a complaint in divorce on June 18, 1987. The complaint, seeking dissolution of the parties' marriage, and the affidavit executed by appellant in accordance with Section 201(d) of the Divorce Code and Pa.R.C.P. 1920.42(a)(2), were personally served upon appellee Sharlot Lonon Anderson that same day. The complaint was endorsed with a notice to defend and claim rights in accordance with Pa.R.C.P. 1920.71, and the affidavit was prefaced with the notice required by Pa.R.C.P. 1920.72(c). Eleven days later, on June 29, 1987, no answer or counteraffidavit having been filed by appellee, appellant served upon appellee, by certified mail, notice in accordance with Montgomery County local rule 1920.42(c),*fn2 of his intent to file a Praecipe to Transmit the Record pursuant to Pa.R.C.P. 1920.42 and 1920.73. The praecipe was filed on July 9, 1987, and, on that same date, pursuant to an ex parte request by appellant's counsel, a decree divorcing the parties was entered by the hearing court.

Six days later, on July 15, 1987, counsel for appellee entered his appearance and apprised the hearing court that he was representing appellee on a voluntary basis as part of the Philadelphia Volunteers for the Indigent Program. Counsel also filed a motion to open or vacate the July 9

[ 375 Pa. Super. Page 344]

    divorce decree, citing 23 P.S. § 602,*fn3 and alleging that, due to appellee's indigent status and the recent appointment of volunteer counsel, appellee had not had sufficient time to respond to the divorce proceedings or to raise economic claims. On that same date, the hearing court entered the following order:

AND NOW, this 15th day of July, 1987, upon motion and representation of defense counsel that outstanding economic issues exist and that [appellee], an indigent, had insufficient time to respond and to retain counsel between the filing of the Complaint in Divorce and the entry of the Divorce Decree, and pursuant to 42 Pa.C.S. § 5505, IT IS ORDERED and DECREED that the DECREE IN DIVORCE entered July 9, 1987 is hereby RESCINDED and REVOKED and declared null and void.

This timely appeal followed.

Appellant raises two issues for our consideration. First, he alleges that the hearing court erred as a matter of law in holding that 42 Pa.C.S. § 5505 gave it the authority to rescind a valid divorce decree where grounds to open or vacate the decree in accordance with 23 P.S. § 602 had not been made out.*fn4 In making this claim, appellant relies upon

[ 375 Pa. Super. Page 345]

    the first clause of Section 5505 of the Judicial Code, which provides that the section is to be applicable "except as otherwise provided or prescribed by law," arguing that Section 602 of the Divorce Code is a contrary provision limiting the court's power to modify or rescind a divorce decree. He also directs our attention to 1 Pa.C.S. § 1933, which sets forth the rule of statutory construction that, where a provision in a general statute conflicts with a special provision in the same or another statute, the two are to be construed, if possible, so as to give effect to both, but that if they cannot be reconciled, the special provision is to prevail.*fn5

In assessing this argument, the hearing court held that Section 5505 of the Judicial Code and Section 602 of the Divorce Code did not conflict, reasoning that Section 5505 of the Judicial Code dealt with the inherent powers of the court to reassess, modify and rescind its own orders, while Section 602 of the Divorce Code was intended to define the circumstances under which the parties were entitled to be granted relief from an otherwise final divorce decree. In so reading the two statutes, the hearing court properly applied the mandate of 1 Pa.C.S. § 1933 which provides that apparently conflicting provisions should be construed so as to give effect to both whenever possible and that one statute is to be given effect in derogation of another only where they are entirely irreconcilable. Moreover, an examination

[ 375 Pa. Super. Page 346]

    of the two statutes and case law addressing them supports the interpretation of the hearing court.

In Simpson v. Allstate Insurance Company, 350 Pa. Super. 239, 504 A.2d 335 (1986), this Court, sitting en banc, discussed the circumstances under which judgments entered in contested proceedings*fn6 may be opened:

"'Unlike a judgment entered by confession or by default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after [it has become final].' Klugman v. Gimbel Brothers, Inc., 198 Pa. Super. 268, 272, 182 A.2d 223, 225 (1962). A judgment entered in adverse proceedings becomes final if no appeal therefrom is filed within thirty days. See : 42 Pa.C.S. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Hunter v. Employers Insurance of Wausau, [347 Pa. Super. 227, 229, 500 A.2d 490, 491 (1985)]. Similarly, it cannot be 'opened.' Livolsi v. Crosby, 344 Pa. Super. 34, 36, 495 A.2d 1384, 1385 (1985); Miller Oral Surgery, Inc. v. Dinello, [342 Pa. Super. 577, 580, 493 A.2d 741, 743 (1985)]; Kappel v. Meth, 125 Pa. Super. 443, 448-450, 189 A. 795, 797-798 (1937). 'This doctrine, respecting judgments entered [in adverse proceedings], has a very definite function, namely, to establish a point at which litigants, counsel and courts

[ 375 Pa. Super. Page 347]

    ordinarily may regard contested lawsuits as being at an end. Klugman v. Gimbel Brothers, Inc., [supra 198 Pa. Super. at 272], 182 A.2d at 225. See also: Kappel v. Meth, [supra, 125 Pa. Super. at 450], 189 A. at 798.'"

Simpson v. Allstate Insurance Company, supra at 243-244, 504 A.2d at 337 (footnote omitted). Read in light of these general principles as to the finality of judgments in contested proceedings, it is clear that Section 602 of the Divorce Code is intended to define and to delimit the unusual circumstances which must be established by a party in order to bring his case within an exception to the general rule that such judgments cannot be modified, rescinded, vacated or opened.

As Simpson recognizes, the inherent power of the court to vacate, modify, or rescind its own orders in the absence of an appeal exists separate from, and in addition to, its authority to open, vacate or strike a judgment if an appropriate basis for such an action is established by the parties. The court's exercise of its power under Section 5505 of the Judicial Code is almost entirely discretionary; this power may be exercised sua sponte, or may be invoked by a request for reconsideration filed by the parties, and the court's decision to decline to exercise such power will not be reviewed on appeal. See: Provident National Bank v. Rooklin, 250 Pa. Super. 194, 202, 378 A.2d 893, 897 (1977). However, this power may be exercised only within the thirty-day period set out in Section 5505, and any request by the parties that the court exercise such power must be both made and ruled upon within that period:

A party may always request a court to reconsider a judgment entered in adverse proceedings. However, such a request must be made within thirty days. "Absent a stay, the [trial] court must grant the petition for reconsideration within the thirty day appeal period to toll the appeal period . . . . If the [trial] court does not expressly grant reconsideration or enter an appropriate stay within the thirty day appeal period, its 'power . . . to act on the application for reconsideration . . . is lost.'"

[ 375 Pa. Super. Page 348]

    the hearing court, we must conclude that the hearing court correctly held that Section 602 of the Divorce Code is not a limitation upon the inherent powers of the court, codified in Section 5505 of the Judicial Code, to rescind or modify its own orders. Moreover, as the two statutes do not, when carefully read, address the same subject matter, they cannot be said to conflict so as to call into play the provisions of 1 Pa.C.S. § 1933. This conclusion is supported not only by the authorities already discussed, but also by 1 Pa.C.S. § 1928(b)(7), which provides that, to the extent that a statute would decrease the jurisdiction of a court of record, it must be strictly construed. Further support for this interpretation can be found in the Divorce Code itself, which states that its provisions are to be construed in light of the legislature's expressed purposes, one of which is to "[e]ffectuate economic justice between parties who are [in the process of divorce]", 23 P.S. § 102(a)(6), and that "in all matrimonial [cases], the court shall have full equity power and jurisdiction", 23 P.S. § 401(c). To read Section 602 of the Divorce Code as stripping from the court, in divorce actions, inherent powers available to it in other causes of action would be inconsistent with these provisions and would be contrary to the intent of the Divorce Code. We thus find no error of law in the decision of the hearing court to rescind the divorce decree in this case.*fn7

[ 375 Pa. Super. Page 350]

Appellant also contends that the hearing court erred in "opening the divorce decree in an ex parte proceeding solely upon appellee's unverified motion which failed to allege intrinsic or extrinsic fraud, as statutorily required." Had the hearing court granted the petition to open or vacate pursuant to 23 P.S. § 602, this argument might be persuasive. Here, however, the hearing court explicitly stated that it was not acting based upon a determination that appellee's petition made out a basis for opening or vacating the decree under Section 602, but rather that its order was entered sua sponte in light of information of appellee's indigence and the recent appointment of counsel. In so acting, the hearing court did not accept as true the allegations of an unverified petition, but rather exercised its inherent power to reconsider its order for any reason based upon the suggestion that equity might not have been served by the entry of a final decree in divorce, which would terminate appellee's right to seek economic relief under the Divorce Code, a mere 21 days after the divorce complaint was filed and served upon her. Appellant has cited no authority limiting the bases upon which a hearing court may, sua sponte, reconsider its own orders, requiring that requests for reconsideration be verified, or requiring that a hearing be held prior to the court's exercise of its power to reconsider. Accordingly, although we agree with appellant that it would have been preferable for appellee to have made her allegations in a verified petition, we cannot conclude that the hearing court committed reversible error in rescinding the divorce decree in light of the particular facts of this case.

Order affirmed.


Order affirmed.

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