Laczkowski v. Laczkowski

¶1dissenting:

¶2I respectfully dissent from the majority’s holding that appellant has properly appealed to this court. I would quash the instant appeal on the ground that the trial court’s order of December 29, 1982,1 was interlocutory and non-appealable.2 Moreover, even if the trial court’s order had been final and appealable, I would nevertheless quash the present appeal because appellant did not timely appeal the December 29 order.

¶3Where, as in the case sub judice, an order does not terminate the parties’ litigation or resolve the parties’ entire dispute, the order may be deemed final and appealable only if it bears the following three aspects of finality: “ ‘(1) it is separable from and collateral to the main cause of action; *169(2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.’ ” Sutliff v. Sutliff, 326 Pa.Super. 496, 499, 474 A.2d 599, 600 (1984) (citation omitted). I conclude that the third aspect of finality is not satisfied by the trial court’s December 29 order.

¶4It is necessary to construe the mandate of Sutliffstrictly. For this court to do otherwise would result in an undue number of piecemeal appeals from a single case. “[I]t would permit the party with greater resources to exhaust the resources of the party with less by taking repeated appeals.” Id.,326 Pa.Superior Ct. at 504, 474 A.2d at 603 (Beck, J., dissenting). An appeal of an order stays the entire proceeding. Appeals from interim orders create undue delay in the ultimate resolution of the parties’ marital and economic status. “Justice is best served and harm to both parties is minimized by proceeding directly and expeditiously to a final disposition of the entire case at which a complete and fair resolution of all the economic issues may be made.” Id.,326 Pa.Superior Ct. at 504, 474 A.2d at 603 (Beck, J., dissenting).

¶5The Divorce Code3 empowers a court to adjust the parties’ ultimate financial settlement (equitable division and distribution of marital property; permanent alimony) to reflect interim relief afforded either party during the pend-ency of the divorce proceedings. Sutliff(Beck, J., dissenting). Accordingly, an award of interim relief such as temporary occupancy of the marital residence, does not irreparably disadvantage the non-receiving party. Id.Since appellant’s claimed right will not be irretrievably lost if review of the December 29 order is postponed until final disposition of the parties’ divorce action, the December 29 order does not meet all three criteria of finality and is an interlocutory, non-appealable order.

¶6However, assuming arguendo that the December 29 order was final and appealable as the majority holds, I would still *170quash the instant appeal. The majority states, and I agree, that appellant’s petition to vacate the December 29 order constituted an effort to circumvent appellant’s failure to file either timely exceptions to or a timely notice of appeal from the December 29 order. For the following reasons, I conclude that appellant’s failure to file a timely notice of appeal from the December 29 order requires us to quash this appeal.

¶7Citing Commonwealth ex rel. Nixon v. Nixon, 321 Pa.Super. 313, 458 A.2d 976 (1983); Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983); Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978), and General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 199 A.2d 540 (1964), the majority contends that appellant’s failure to file exceptions to the December 29 order should not constitute a waiver of issues for appellate review. My reading of Nixon, Jones, Pomerantz, and General Mills, Inc. persuades me that the case at bar is sufficiently distinguishable to necessitate a different result.

¶8In Nixon and Jonesthe respective appellants did not file exceptions to the challenged court orders, but the appellants did file timely notices of appeal from the orders in question. In Pomerantzthe appellant timely filed a document contesting a court order, but the document was captioned motion for a new trial rather than exceptions. Finally, in General Mills, Inc. the appellant duly filed an answer, new matter, and counterclaims containing contradictory averments, but his pleadings were not accompanied by a Pa.R.C.P. No. 1024 verification of inconsistent allegations. The common thread in Nixon, Jones, Pomerantz, and General Mills, Inc. is that the appellant in each case took timely, affirmative action to assert his viewpoint even though the action in each instance was not in strict accordance with the applicable procedural rules. Most similar to the case sub judice are Nixon and Joneswherein the appellants neglected to file exceptions to contested court orders. Notably, however, the appellants in Nixon and Jonesdid file prompt notices of appeal from the disputed *171orders whereas the instant appellant permitted the appeal period to expire before he took any action challenging the December 29 order.

¶9While the “rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter,” Pa.R.A.P. 105(a), I would not liberally interpret the rules to justify an appellant’s complete inaction. Since appellant wished to treat the December 29 order as a final and appealable order, he should, at the very least, have filed a notice of appeal from same. See Nixon; Jones. Nor am I convinced that a different result should obtain because appellant later filed a petition to vacate the December 29 order.4 Appellant’s belated challenge to the December 29 order cannot serve to enlarge the time period for appealing the December 29 order. See Pa.R.A.P. 105(b).

¶10Therefore, I would in any event quash the appeal now before us.