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FRANK SYNO v. MARIE D. SYNO (12/19/89)

filed: December 19, 1989.

FRANK SYNO
v.
MARIE D. SYNO, APPELLANT



Appeal from the Order Entered November 22, 1988 in the Court of Common Pleas of Luzerne County, Civil No. 4803-C of 1984.

COUNSEL

Kimberly D. Borland, Wilkes-Barre, for appellant.

Ronald P. Sweeda, Wilkes-Barre, for appellee.

Cirillo, President Judge, and Kelly and Cercone, JJ.

Author: Cirillo

[ 389 Pa. Super. Page 506]

This is an appeal from an order entered in the Court of Common Pleas of Luzerne County. Frank Syno, appellee, filed a divorce action against his wife, appellant Marie Syno. In her answer and new matter, Marie Syno asserted that her husband had been adjudicated incompetent five months before he instituted the divorce action and was, therefore, incapable of bringing the action. In his reply to new matter, Frank Syno denied the adjudication of incompetency, and further averred that he was competent and capable of bringing the divorce action.*fn1 A master was appointed and a hearing was held. Despite Marie Syno's continuing objection to Frank Syno's competency, the master allowed the husband to testify. Thereafter, Marie Syno filed a petition to stay the proceedings pending her application for the appointment of a guardian or guardian ad litem. This application was denied on February 6, 1987. The wife's application to the court to compel Frank Syno to undergo a psychiatric examination was also denied. On February 11, 1987, five days after the wife's motion for appointment of a guardian was denied, the wife petitioned for alimony, equitable distribution, counsel fees, and costs.

A second hearing before the master was held on October 27, 1987. On December 10, 1987, Frank Syno filed a petition for bifurcation*fn2 before Judge Brominski. Judge

[ 389 Pa. Super. Page 507]

Brominski determined that bifurcation could not be ordered until a report and recommendation had been issued from the master. Three months later, on March 17, 1988, the master filed a report and recommended a decree in divorce be granted. Marie Syno filed exceptions to the report and recommendation. Following briefing and oral argument, Judge Capellini dismissed the exceptions; the court refrained from entering an order concerning the divorce pending the ruling on the bifurcation petition. Judge Capellini's order reads:

NOW, this 22[nd] day of November, 1988, . . . it is hereby ORDERED, ADJUDGED and DECREED that the Defendant's Exceptions to the Report and Recommendation of the Special Master are DENIED and DISMISSED.

Appellant appeals from this order.

An order dismissing exceptions to a master's report and recommendation is not a final order. Therefore, we quash this appeal. See Reed v. Reed, 354 Pa. Super. 284, 289, 511 A.2d 874, 877 (1986) ("An order dismissing exceptions to a Master's Report but not entering a final decree of equitable distribution is not a final order"); Hammond v. Hammond, 301 Pa. Super. 439, 447 A.2d 1047 (1982) (where no divorce decree has been entered, an appeal from an order dismissing exceptions to master's report was quashed as interlocutory). See also Pa.R.A.P. 341. In his opinion accompanying the order, Judge Capellini states that the order simply denies Marie Syno's exceptions; "the property issues [remain] outstanding pending Judge Brominski's ruling on [Frank Syno's] Petition for Bifurcation."

Despite our decision to quash this appeal, we point out the following procedural irregularity. It is not clear to this court why the bifurcation petition remained outstanding as of November 22, 1988, the date Judge Capellini denied the exceptions to the master's report. Judge Brominski held the bifurcation petition in abeyance pending a ...


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