J.A19036/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


SANDRA L. KOZEL,                    :     IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                    Appellee        :
                                    :
               v.                   :
                                    :
ROBERT F. KOZEL,                    :
                                    :
                    Appellant       :     No. 1606 WDA 2013


          Appeal from the Order Entered September 27, 2013
          In the Court of Common Pleas of Allegheny County
               Family Court No(s).: FD 11-007838-016


SANDRA L. KOZEL,                    :     IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                    Appellee        :
                                    :
               v.                   :
                                    :
ROBERT F. KOZEL,                    :
                                    :
                    Appellant       :     No. 1607 WDA 2013


          Appeal from the Order Entered September 26, 2013
          In the Court of Common Pleas of Allegheny County
               Civil Division No(s).: FD 11-007838-016

SANDRA L. KOZEL,                    :     IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                    Appellee        :
                                    :
               v.                   :
                                    :
ROBERT F. KOZEL,                    :
                                    :
                    Appellant       :     No. 1608 WDA 2013
J. A19036/14



           Appeal from the Order Entered September 26, 2013
           In the Court of Common Pleas of Allegheny County
                Family Court No(s).: FD 11-007838-016

SANDRA L. KOZEL,                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                     Appellee          :
                                       :
               v.                      :
                                       :
ROBERT F. KOZEL,                       :
                                       :
                     Appellant         :   No. 1609 WDA 2013


           Appeal from the Order Entered September 16, 2013
           In the Court of Common Pleas of Allegheny County
                Family Court No(s).: FD 11-007838-016

SANDRA L. KOZEL,                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                     Appellee          :
                                       :
               v.                      :
                                       :
ROBERT F. KOZEL,                       :
                                       :
                     Appellant         :   No. 1610 WDA 2013


               Appeal from the Order September 16, 2013
           In the Court of Common Pleas of Allegheny County
                Family Court No(s).: FD 11-007838-016

SANDRA L. KOZEL,                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                     Appellee          :
                                       :
               v.                      :
                                       :
ROBERT F. KOZEL,                       :
                                       :
                     Appellant         :   No. 1611 WDA 2013


                                 -2-
J. A19036/14



           Appeal from the Order Dated September 13, 2013
           In the Court of Common Pleas of Allegheny County
                Family Court No(s).: FD 11-007838-016

SANDRA L. KOZEL,                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                     Appellee          :
                                       :
               v.                      :
                                       :
ROBERT F. KOZEL,                       :
                                       :
                     Appellant         :   No. 1612 WDA 2013


             Appeal from the Order Entered September 13, 2013
           In the Court of Common Pleas of Allegheny County
                Civil Division No(s).: FD 11-007838-016

SANDRA L. KOZEL,                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                     Appellee          :
                                       :
               v.                      :
                                       :
ROBERT F. KOZEL,                       :
                                       :
                     Appellant         :   No. 1613 WDA 2013


             Appeal from the Order Entered September 10, 2013
           In the Court of Common Pleas of Allegheny County
                Family Court No(s).: FD 11-007838-016

SANDRA L. KOZEL,                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                     Appellee          :
                                       :
               v.                      :
                                       :
ROBERT F. KOZEL,                       :
                                       :
                     Appellant         :   No. 1614 WDA 2013


                                 -3-
J. A19036/14




                      Appeal from the Order September 6, 2013
               In the Court of Common Pleas of Allegheny County
                    Family Court No(s).: FD 11-007838-016


BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 25, 2015

        Appellant, Robert F. Kozel (“Husband”), appeals from nine orders

dated September 6, 10, 13, 16, 26, and 27, 2013.1        Husband contends the

trial court erred in ordering him to relinquish possession of marital property

to Appellee, Sandra L. Kozel (“Wife”). We quash the appeal.2


*
    Former Justice specially assigned to the Superior Court.
1
 The appeals were consolidated by order of this Court. Order October 24,
2013.
2
  On October 23, 2013, this Court entered a per curiam rule to show cause
order which stated:

               These appeals, having been filed from orders dealing
           with property distribution prior to the entry of a final
           decree of divorce and equitable distribution, are
           interlocutory pursuant to Campbell v. Campbell, 516
           A.2d 363 (Pa. Super. 1986). See also Fried v. Fried, [ ]
           501 A.2d 211 ([Pa.] 1985) (noting disapproval of collateral
           order doctrine in divorce cases).      Further, Pa.R.A.P.
           311(a)(2) and (4), cited to on the docketing statement
           submitted to this Court, explicitly state that divorce
           matters are exempt from those sections of the Rule.
           Therefore, [Husband] shall show cause, in the form of a
           letter addressed to the Prothonotary of this court with a
           copy to opposing counsel and the trial judge, why these
           appeals should not be quashed. . . .




                                       -4-
J. A19036/14

      The trial court summarized the procedural posture of this case as

follows:

               Husband and [Wife] were married on August 23, 1997.
           Three (3) children were born of the marriage . . . . Wife
           filed a Complaint in Divorce on September 1, 2011,
           wherein she raised claims for, inter alia, equitable
           distribution of marital property, child support, alimony
           pendente lite/spousal support, and counsel fees.        On
           September      27,    2011    Wife    praeciped    for    a
           conference/hearing to establish alimony pendente lite,
           spousal support, child support, and counsel fees and costs.
           On December 13, 2011 an Interim Order of Court was
           entered, which provided that Husband was to pay wife
           $116,224 per month for support of Wife and the Children.

               On January 18, 2012 Husband presented to the [c]ourt
           a Motion to Compel Wife to file her Affidavit of Consent to
           the entry of a divorce decree. On February 3, 2012 the
           [c]ourt entered an Order that required Wife to file her
           Affidavit of Consent within five (5) days of the date of the
           Order. If Wife did not timely file this Affidavit, the Divorce
           Action would be dismissed and the December [13], 2011
           Order would be vacated immediately upon Husband’s filing
           of a Praecipe to Dismiss the Divorce Action with the
           Department of Court Records.         Wife failed to file her
           Affidavit of Consent, and on February 13, 2012 Husband
           filed a Praecipe to Dismiss the Divorce Action with the
           Department of Court Records. As noted in the February 3,
           2012 Order, this action resulted in the immediate dismissal
           of the Complaint in Divorce. Wife file a Complaint for
           Spousal Support on February 15, 2012. An Interim Order
           of Court was entered on March 23, 2012, which provided
           that Husband was to pay Wife $40,005 per month in
           unallocated support beginning April 1, 2012.

             On September 6, 2013 Wife presented to the [c]ourt an
           Oral Emergency Motion for Injunctive Relief. Husband

Order, 10/23/13.      This Court received a response from Husband and
deferred the issue to the merits panel.




                                       -5-
J. A19036/14

       presented an Oral Response to this Motion that same day.
       Wife stated that Husband entered the marital residence
       without permission, which he had vacated approximately
       two (2) years prior. Wife alleged that Husband took
       belongings from the home including privileged attorney-
       client information. Wife also alleged that Husband burned
       unidentified papers in the fireplace. Husband did not deny
       that he took items from the home, but he denied removing
       any of Wife’s privileged attorney-client documents.
       Husband argued that the [c]ourt did not have jurisdiction
       to rule on this matter because the Complaint in Divorce
       was dismissed in 2012, and the issue before the [c]ourt
       concerned equitable distribution and exclusive possession
       of the marital residence. Wife argued that the [c]ourt did
       have jurisdiction to rule on this matter because of the
       ongoing child custody and support litigation, and Husband
       could be enjoined from disposing of assets and materials
       that could be used for the Children.

          After hearing the arguments from both Husband and
       Wife, the [c]ourt entered it’s September 6, 2013 Order.
       The Order provided that, inter alia, Husband was to
       restore and return all tangible personal property that
       he and/or his agents removed, relocated, destroyed,
       dissipated, and/or tampered with to the marital residence
       by September 7, 2013. Husband was also directed to
       return any and all documents representing attorney-client
       communications and/or other privileged materials retained
       by Wife in the marital residence.

          The Order further provided that Husband shall be
       deemed in contempt upon discovery that Husband did not
       restore the marital residence to the status quo that existed
       before his and his agents’ unauthorized entry on
       September 6, 2013. The Order directed that a hearing
       would be held before Husband could be found in
       contempt.     Wife was awarded interim exclusive
       possession of the martial residence, and a hearing
       on exclusive possession was scheduled before the
       [c]ourt on December 13, 2013. The Order further
       authorized   the    Hampton     Police   Department,     the
       Pennsylvania State Police and any other applicable law
       enforcement agency to enforce the provisions of the Order.



                                  -6-
J. A19036/14

           On September 10, 2013 the [c]ourt entered an
       Order of Court to amend the September 6, 2013
       Order sua sponte. The September 10, 2013 Order
       required Wife to file a Complaint in Divorce raising an
       equitable distribution count or an exclusive possession
       count no later than September 16, 2013. If Wife failed to
       file the Complaint in Divorce, the Order cancelled the
       exclusive possession hearing.       The Order also
       rescheduled the December 13, 2013 exclusive
       possession hearing for November 12, 2013.

          On September 13, 2013, Husband presented in Motions
       Court an Emergency Motion to Vacate the [c]ourt’s
       September 6, 2013 Order of Court and the September 10,
       2013 Amended Order of Court. At the same time Wife
       presented her Reply to Husband’s Emergency Motion and
       her Motion for Sanctions, as Husband had not complied
       with the September 6, 2013 Order to restore the marital
       residence to the status quo that existed before the
       unauthorized entry.

          The [c]ourt denied Husband’s Emergency Motion to
       Vacate via its first September 13, 2013 Order of Court.
       The [c]ourt also denied Husband’s request that the
       September 6, 2013 Order of Court and the September 10,
       2013 Amended Order of Court be stayed pending
       Husband’s appeal of these Orders to the Superior Court via
       its second September 13, 2013 Order of Court.          On
       September 16, 2013 the [c]ourt entered the Order
       attached to Wife’s Motion for Sanctions.       Under the
       provisions of this Order Husband was to, inter alia,
       return any and all documents removed, inspected,
       reviewed, and/or tampered with to the marital
       residence by September 21, 2013. A compliance
       review hearing to determine Husband’s compliance
       with the relevant Orders of Court was scheduled for
       November 18, 2013. The Court also issued a Pretrial
       Statement Order on September 16, 2013 for the one
       (1) day compliance review hearing scheduled for
       November 18, 2013.

          On September 17, 2013 Wife filed her Complaint
       in Divorce. The same day the [c]ourt entered an Order
       that cancelled the exclusive possession hearing scheduled


                                 -7-
J. A19036/14

       for November 12, 2013 because the [c]ourt concluded that
       Wife had failed to timely file her Complaint in Divorce
       raising either an equitable distribution count or an
       exclusive possession count in accordance with the
       September 10, 2013 Amended Order of Court.          The
       September 17, 2013 Order also vacated Wife’s
       interim exclusive possession of the marital residence
       pending the filing of a divorce action and a formal
       request for exclusive possession by way of motion.

          On September 26, 2013 Husband presented a
       Petition for Stay in Motions Court. Husband sought for
       the [c]ourt to stay the September 6, 2013 Order of Court,
       the September 10, 2013 Order of Court, the two
       September 13, 2013 Orders of Court, and the two
       September 16, 2013 Orders of Court pending Husband’s
       appeal to the Superior Court.      The [c]ourt denied
       Husband’s Petition on September 26, 2013.

          Wife presented a Motion to Vacate the September 17,
       2013 Order of Court in Motions Court on September 26,
       2013. Wife averred that she filed her Complaint in Divorce
       at approximately 4:53 P.M. on September 16, 2013, in
       compliance with the September 10, 2013 Amended Order
       of Court. Wife stated that she learned that her Complaint
       could not be accepted on September 16, 2013 because it
       contained a count for primary physical and shared legal
       custody of the Children. This count required a waiver from
       the Generations Department of the Family Division noting
       that the parties had already completed their Generations
       Education and Mediation sessions before the Complaint
       could be accepted. Wife re-filed the Complaint [in Divorce]
       on September 17, 2013 when she learned of the waiver
       requirement.

          The [c]ourt granted Wife’s Motion in part via
       another September 26, 2013 Order of Court. It did
       not vacate the September 17, 2013 Order of Court,
       but it did re-award Wife interim exclusive possession
       of the marital residence pending the outcome of the
       one (1) day exclusive possession hearing on
       November 12, 2013.




                                  -8-
J. A19036/14

             On September 27, 2013 the [c]ourt entered an
          Order that continued generally the compliance
          review hearing scheduled for November 18, 2013 to
          allow counsel to conduct formal discovery.      The
          Order also provided that either party could praecipe
          to reschedule the compliance review hearing on an
          expedited basis upon completion of discovery.

             On October 4, 2013 Husband filed nine (9) separate
          Appeals of the following Orders: the September 6, 2013
          Order of Court; the September 10, 2013 Order of Court;
          the two September 13, 2013 Orders of Court; the two
          September 16, 2013 Orders of Court; the two September
          26, 2013 Orders of Court; and the September 27, 2013
          Order of Court.

Trial Ct. Op., 12/2/13, at 1-6 (footnotes omitted and emphases added).

     Husband timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.         The trial court filed a

responsive opinion.

     On November 6, 2013, the trial court entered the following consent

order:3


3
  The trial court entered the consent order, notwithstanding the filing of the
instant appeal. Pa.R.A.P. 1701 provides, in pertinent part:

            (b) Authority of a trial court or agency after
          appeal.     After an appeal is taken or review of a
          quasijudicial order is sought, the trial court or other
          government unit may:

                             *    *    *

            (6) Proceed further in any matter in which a non-
            appealable interlocutory order has been entered,
            notwithstanding the filing of a notice of appeal or a
            petition for review of the order.



                                      -9-
J. A19036/14

           1. [Wife] is hereby awarded exclusive possession of
           the former marital residence . . . .

           2. [Husband] is hereby excluded from the premises of the
           former marital residence and adjoined from entering
           and/or occupying the same;

           3. This Order of Court shall become effective immediately;
           and

           4. The one (1) day hearing scheduled to address [Wife’s]
           request for exclusive possession of the former marital
           residence, currently scheduled for Tuesday, November 12,
           2013 . . . is hereby cancelled.

Consent Order, 11/6/13, at 1-2 (emphasis added).4

        Appellant raises the following issues for our review:

           1. Did the Trial Court err as a matter of law, and abuse its
           discretion, in ordering the relinquishment of possession of
           property by [Husband] without subject matter jurisdiction?

           2. Did the Trial Court err as a matter of law, and abuse its
           discretion, in ordering the relinquishment of possession of
           property by [Husband] without proper notice, without a



Pa.R.A.P. 1701(b)(6).
4
    On November 27, 2013, a second consent ordered was entered, stating:

           [Wife is] awarded an advance of equitable distribution in
           the amount of Three Million Dollars ($3,000,000.00) which
           amount is to be reduced by income tax attributable to
           [Wife], which would have been incurred if the parties
           Merrill Lynch Wealth Management Joint Investment
           Account would have had to sell $3,000,000.00 in assets in
           order to generate the aforementioned $3,000,000 cash
           advance. The amount of the tax that has been agreed
           upon by the parties is $60,000. . . .

Order, 11/27/13.



                                      - 10 -
J. A19036/14

        written Motion, and without a hearing as required by due
        process?

        3. Did the Trial Court err as a matter of law, and abuse its
        discretion, in ordering law enforcement officials to enforce
        the relinquishment of possession of property by [Husband]
        without proper notice, without a written Motion and
        without a hearing as required by due process?

        4. Did the Trial Court err, as a matter of law, and abuse its
        discretion, in ordering law enforcement officials to enforce
        the relinquishment of possession of property by [Husband]
        without subject matter jurisdiction?

Husband’s Brief at 18.

     As a prefatory matter, we consider whether the issues concerning the

distribution of marital property, viz., the marital residence, are moot based

upon the November 6, 2013 consent order. This Court has stated:

           Generally, an actual claim or controversy must be
        present at all stages of the judicial process for the case to
        be actionable or reviewable. . . . If events occur to
        eliminate the claim or controversy at any stage in
        the process, the case becomes moot. An issue can
        become moot during the pendency of an appeal due to an
        intervening change in the facts of the case or due to an
        intervening change in the applicable law. An issue before
        a court is moot if in ruling upon the issue the court cannot
        enter an order that has any legal force or effect.

Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa. Super. 2005)

(quotation marks and citations omitted).

     In Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474

(Pa. Super. 2014), appeal denied, 104 A.3d 526 (Pa. 2014), the appellants

        [d]iscontin[ed] their action immediately prior to filing their
        appeal in [the Supreme] Court, depriv[ing] this Court of
        jurisdiction to hear the issues complained of in their


                                    - 11 -
J. A19036/14

          appeal. Because no action [wa]s pending from which an
          appeal of an order c[ould] be heard, this Court [wa]s
          without jurisdiction to hear [the a]ppellants claims. [The
          a]ppellants rendered their action moot. Th[e] appeal,
          therefore, must be quashed.

Id. at 476.

     Instantly, Husband’s challenges to the court’s orders granting Wife

interim exclusive possession of the marital residence are moot based upon

the consent order granting Wife exclusive possession. See Deutsche Bank

Nat. Co., 868 A.2d at 577. Because the consent order rendered the issue

moot, Husband’s appeal as to that issue must be quashed.              See Motley

Crew, LLC, 93 A.3d at 476.

     We       also   consider   whether   the   orders   were   interlocutory   and

unappealable.        A final order is defined in part as “any order that . . .

disposes of all claims and of all parties.” Pa.R.A.P. 341(b)(1) (emphasis

added). The September 6, 2013 order directed Husband to return property

to the marital home and awarded interim possession of the home to Wife. A

hearing was set for December 13th.         The September 10th order amended

the September 6th order, directing Wife to file a complaint in divorce and

scheduling a hearing on the issue of the exclusive possession of the marital

residence. The two September 13th orders (1) denied a request to vacate

the orders entered on September 6th and 10th and (2) denied a stay of the

orders.   The September 16th order set a date for a compliance review

hearing and specified the information to be included in pre-trial statements.



                                       - 12 -
J. A19036/14

The court entered another order on September 16th directing Husband to

return documents and set a date for a compliance review hearing. The court

entered an order on September 26th awarding Wife possession of the

marital residence and scheduling a hearing on the issue of exclusive

possession.    The court entered another order on September 26th denying

Husband’s petition for a stay pending his appeal to this Court.       The

September 27th order generally continued the compliance review hearing

scheduled for November 18, 2013 so counsel could conduct formal

discovery.

     We find that the orders were not final orders because they did not

dispose of all claims and anticipated further proceedings.   See Pa.R.A.P.

341(b)(1). Therefore, we are constrained to quash the appeal.

     Appeal quashed.

     President Judge Emeritus Bender joins the memorandum.

     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2015




                                  - 13 -
J. A19036/14




               - 14 -
