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JOHN KURTAS v. BERNADETTE KURTAS (03/03/89)

decided: March 3, 1989.

JOHN KURTAS, APPELLEE,
v.
BERNADETTE KURTAS, APPELLANT



Appeal from the Order of the Superior Court of August 14, 1987 denying reargument and affirming the Order of the Court of Common Pleas of Montgomery County of January 3, 1986 in Divorce Action No. 82-12258. 368 Pa. Super. 648, 531 A.2d 39 (1987).

COUNSEL

Albert Momjian, Saul Levit, Rachael R. Munafo, Philadelphia, for appellant.

Henry T. Crocker, Charles D. Garner, Jr., Pottstown, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, J., concurs in the result. Larsen, J., files a dissenting opinion in which Flaherty and Papadakos, JJ., join.

Author: Zappala

[ 521 Pa. Page 106]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

In this appeal, we are requested to review the order and memorandum opinion of the Superior Court, 368 Pa. Super. 648, 531 A.2d 39, affirming the order of the Court of Common Pleas of Montgomery County which had denied the appellant's post-trial motions. The basis of the Superior

[ 521 Pa. Page 107]

Court's order was the untimeliness of the appellant's post-trial motions. Because Superior Court abused its discretion, we reverse.

The facts germane to this appeal are as follows: The parties were married in 1950, separated in 1972 and divorced in 1985 in response to a complaint filed by the appellee in 1982 under ยง 201(d) of the Divorce Code. A master's hearing was held in March of 1985. Because of the appellant's absence, no testimony was presented in support of her economic claims, resulting in the master recommending that all her economic claims be denied.

Exceptions were filed to this recommendation requiring a de novo hearing before the Court of Common Pleas. After taking testimony, the trial judge entered a decree and order on November 15, 1985 divorcing the parties and disposing of the economic claims.*fn1 Appellant's trial counsel filed post-trial motions on November 27, 1985. At some point prior to November 27, the appellant retained new counsel who filed exceptions to the adjudication on November 29, 1985.*fn2 After appellate counsel received the appellant's file from her trial counsel, appellate counsel filed supplemental post-trial motions on January 3, 1986, the date set for oral arguments on the post-trial motions. At the argument, neither the appellee nor the trial judge raised or objected to the timeliness of the filing of the post-trial motions or exceptions. After hearing the arguments on the merits, the trial judge entered an order dismissing the appellant's post-trial motions. Appellant then filed a timely appeal to the Superior Court.

Relying upon its decision in Colagioia v. Colagioia, 362 Pa. Super. 213, 523 A.2d 1158 ...


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