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decided: October 20, 1988.


Appeal from the Order of the Superior Court, Nos. 312 and 658 Philadelphia 1985, dated April 28, 1986, Reversing the Orders of the Court of Common Pleas of Montgomery County, No. 80-11017 (January 3, 1985 and March 1, 1985).


James D. Crawford, Philadelphia, for appellant.

Donald W. Hedges, Philadelphia, Marvin Mitchelson, Los Angeles, California, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Zappala, J., files a concurring opinion in which Larsen, J., joins.

Author: Nix

[ 520 Pa. Page 20]


The instant appeal raises interesting questions relating to subject matter jurisdiction and issue preclusion. The questions arise in the setting of a protracted divorce proceeding which has been before the courts for over seven years. The ruling of the Superior Court vacating the divorce decree entered by the trial court would have the effect of continuing this controversy in our courts and perpetuating the uncertainty of the status of the parties involved.*fn1 Because of the likelihood for the instant questions to recur and the desirability for a prompt resolution of these traumatic, bitterly disputed lawsuits, we granted review.

The specific question that we are called upon to review is the Superior Court's determination that the trial court was without subject matter jurisdiction to issue the decree of divorce because of an appeal that had been taken and was then pending in the Superior Court relating to the trial court's prior order concerning interim counsel fees and costs. For the reasons that follow, we conclude that the Superior Court erred in its judgment and that the trial court did in fact have the right to proceed in its disposition of the merits of the divorce action.

[ 520 Pa. Page 21]

The parties to this matter under review were married on August 16, 1968 and are parents of three children. On June 25, 1980, appellant filed a complaint in divorce in the Court of Common Pleas, Montgomery County. His wife, Sandra, filed a counterclaim on October 31, 1980, in which she advanced, inter alia, a claim for interim counsel fees and costs. Her motion was granted, and on December 29, 1981, the trial court ordered appellant to remit $1,655 in costs and $7,500 in interim counsel fees. Mr. Rosen filed an appeal in the Superior Court challenging the propriety of the trial court's award. The Superior Court did not reach the merits in that appeal, finding that appellant's failure to file exceptions to the order constituted a waiver of the issues he sought to raise. Rosen v. Rosen, 328 Pa. Super. 93, 476 A.2d 470 (1984) (" Rosen I "). The decision in Rosen I was filed by the Superior Court on June 1, 1984.

During the pendency of that appeal, the trial court entered a decree nisi on the issues of child custody, equitable distribution, child support, alimony, divorce and legal fees. On February 16, 1983, a final order was issued. No direct appeal was taken by Mrs. Rosen. She instead, relying upon section 602 of the Divorce Code, 23 P.S. ยง 602, filed a motion to vacate the decree, asserting that the trial court lacked subject matter jurisdiction. This motion was filed on May 3, 1984, over a year after the entry of the final order.*fn2 In response to the motion to vacate, Mr. Rosen filed preliminary objections and in the alternative a motion to strike. The motion to vacate the decree was denied, and Mrs. Rosen followed with an appeal to the Superior Court. As previously stated, the Superior Court, in an opinion filed on April 28, 1986, held that the trial court was without jurisdiction to enter the decree in divorce because of the pending appeal from the award of counsel fees and costs. Rosen v. Rosen,

[ 520 Pa. Page 22353]

Pa. Super. 421, 510 A.2d 732 (1986) (" Rosen II ").*fn3 For the reasons that follow we conclude: (a) that the trial court properly ruled that under the Divorce Code of 1980, its jurisdiction was not divested as a result of the appeal of its interim order for counsel fees and costs; (b) that the Superior Court's reliance upon Sutliff v. Sutliff, 326 Pa. Super. 496, 474 A.2d 599 (1984) in Rosen II was misplaced; (c) that this Court's decision in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), which expressly repudiated Sutliff v. Sutliff, supra, was ...

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