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JESSIE B. FITZPATRICK v. BARCLAY W. FITZPATRICK (07/19/88)

filed: July 19, 1988.

JESSIE B. FITZPATRICK, APPELLEE,
v.
BARCLAY W. FITZPATRICK, APPELLANT. BARCLAY W. FITZPATRICK, APPELLANT, V. JESSIE B. FITZPATRICK, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County, Civil at No. 131 August Term, 1980; Appeal from the Order of the Court of Common Pleas of Chester County, Civil at No. 254 March Term, 1979.

COUNSEL

Jean B. Green, Norristown, for appellant.

Lyn B. Schoenfeld, Media, for appellee.

Rowley, Wieand and Montemuro, JJ. Wieand, J., concurs in the result.

Author: Montemuro

[ 377 Pa. Super. Page 270]

This is a consolidated appeal from a decree of equitable distribution in a complex, and seemingly endless, bifurcated divorce action. The groundwork for the current procedural morass was laid innocuously enough in 1978 when, after four years of marriage, appellee filed a petition for spousal support.

The trial court denied the application on the grounds that appellee had committed adultery which appellant had neither connived at nor condoned, and that appellee had departed the marital residence without adequate reason at law, all of which served to vitiate any claim of entitlement to financial contribution from appellant. No appeal was taken from this order. In March 1979 appellant filed for divorce on grounds of adultery. In April of the same year appellee filed applications for alimony pendente lite, counsel fees and costs, and a discovery petition in the divorce suit, and, in addition, commenced an equity action. The discovery request was denied in October, 1979, and the request for alimony pendente lite, and attendant costs was denied in March of 1980. An appeal followed to this court

[ 377 Pa. Super. Page 271]

    which dismissed in July 1980 on the basis that the Order appealed from was interlocutory. One week after the dismissal, appellee filed first a petition to proceed under the Divorce Code of 1980, 23 Pa.S.A. § 101, et seq., and a month thereafter a complaint in divorce pursuant to the Code. In 1981 all outstanding matters were consolidated, and, in May of 1982, the equity action was tried, resulting in an adjudication from which both parties appealed to this court.*fn1 In December of 1983 the divorce action was bifurcated and a decree in divorce entered. Economic issues were heard by the master, whose findings were reviewed in the trial court, and the Order issued from which the instant appeals are taken.

Appellant has presented us with eight claims which we will address seriatim.*fn2

Appellant argues that the trial court acted improperly in proceeding under the Divorce Code of 1980, 23 Pa.S.A. § 101 et seq. To understand the import of this claim a brief examination of its particular procedural context is necessary. Appellant filed for divorce under the 1929 Divorce Law, 23 Pa.S.A. § 1 et seq. (repealed April 2, 1980). In July of 1980, after the effective date of the new Code, appellee unsuccessfully petitioned the court for permission to proceed thereunder. The trial court took no action on a timely request for reconsideration in letter form. Three months

[ 377 Pa. Super. Page 272]

    later the case was reassigned to another judge, who upon receiving a communication from appellee's counsel to the effect that the reconsideration matter remained open, invited the submission of a formal reconsideration petition. The petition was granted, and the matter proceeded to hearing before the master who granted appellant's request for bifurcation.

Appellant bases his objections to proceeding under the 1980 Divorce Code on several grounds. However, he principally relies on the argument that because the petition for reconsideration was not granted within thirty days, the trial court thereafter lacked jurisdiction to enter the Order, leaving appellee with the sole option of taking an appeal to this court.*fn3 The necessary corollary is that judges of the same court may not overrule each other.

In support of his argument, appellant cites 42 Pa.C.S.A. § 5505 which states that:

Except as otherwise provided or prescribed by law, a court may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

While the principle is correct as stated, we find that it is inapplicable here. In Simpson v. Allstate Insurance Co., 350 Pa. Super. 239, 504 A.2d 335 (1986), an en banc panel of this court found that a trial court's attempt to open a judgment subsequent to the thirty day appeal period, even though no appeal had been taken, was error where no fraud or extraordinary circumstance justifying its action had been shown. See also Loomis Lake Association by Hughes v. Smith, 366 ...


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