Cassani, E. v. Kamiak, O. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
EMANUELE CASSANI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
V. :
:
:
OLGA SOFIA KAMIAK :
:
Appellant : No. 2961 EDA 2022
Appeal from the Order Entered November 22, 2022
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2019-20404
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
DISSENTING MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 12, 2023
I respectfully dissent. Because the record in the prior appeal had not
yet been remanded when the trial court filed the order underlying the instant
appeal, I am constrained to conclude that the trial court lacked jurisdiction.
Therefore, the November 22, 2022 order was a nullity. Accordingly, I agree
with the trial court that the order should be vacated, and that the case should
be remanded to the trial court. See Trial Ct. Op., 12/19/22, at 3.
The record reflects that on June 3, 2022, while the appeal at 1012 EDA
2022 was pending before this Court, Emanuele Cassani (Father) filed a petition
before the trial court in which he alleged that Olga Sofia Kamiak (Mother) was
in contempt of the March 13, 2022 final custody order, and requested
modification of the final order. Mother subsequently filed amended answers
and a cross-motion to modify custody. On November 22, 2022, the trial court
filed the order underlying this appeal which denied Father’s petition for
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contempt, denied the parties’ cross-motions to modify the final custody order,
and granted Father’s request to travel to Italy in December of 2022. See
Order, 11/22/22.
That same day, this Court dismissed appeal pending at 1012 EDA 2022
as moot. However, as of that date, the certified record had not yet been
remanded to the trial court. Indeed, pursuant to the Pennsylvania Rules of
Appellate Procedure, the earliest the record could have been remanded to the
trial court was on December 23, 2022, thirty-one days after this Court’s
November 22, 2022 decision. See Pa.R.A.P. 2572(a)(2).1
As a general rule, the trial court may not proceed in a matter once an
appeal has been taken. See Pa.R.A.P. 1701(a). However, as the Majority
correctly notes, there are limited exceptions. See Maj. Mem. at 12 (citing
Pa.R.A.P. 1701(c)). Rule 1701(c) provides in relevant part as follows:
Where only a particular item, claim, or assessment adjudged in
the matter is involved in an appeal, . . . the appeal . . . shall
operate to prevent the trial court or other government unit from
proceeding further with only such item, claim, or assessment,
unless otherwise ordered by the trial court . . . or by the appellate
court or a judge thereof as necessary to preserve the rights of the
appellant.
Pa.R.A.P. 1701(c). However, even if Rule 1701(c) permitted the rest of the
case to proceed, the certified record had not yet been remanded to the trial
____________________________________________
1 Mother sought reconsideration of the November 22, 2022 decision with this
Court, which was denied, and she subsequently filed a petition for allowance
of appeal with our Supreme Court, which was also denied. Due to these filings
subsequent to our November 22, 2022 decision, the record was not remanded
to the trial court until March 22, 2023. See Pa.R.A.P. 2572(b).
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court pursuant to Pa.R.A.P. 2572 when the trial court entered the November
22, 2022 order.
In Commonwealth v. Harris, 230 A.3d 1124 (Pa. Super. 2020), this
Court explained:
We have construed [Pa.R.A.P. 2572] as setting the earliest
possible date for remanding a record to the trial court. Quite
simply, the prothonotary may remand the record any time after
thirty days have passed from the Superior Court’s judgment.
Hence, the earliest date for remand to the trial court was 30 days
after the Supreme Court of Pennsylvania denied Mr. Harris’
petition for allowance of appeal. The High Court denied his
request for an allowance of appeal on January 15, 2020 . . . at
which point [the Superior Court’s decision] became a final, binding
appellate decision. Thus, the record was not due for remand to
the trial court until February 15, 2020, at the earliest.
We therefore hold that, under Appellate Rules 1701 and 2572, a
trial court has no jurisdiction over a case until an appellate court
returns the record to it with instructions for the trial court to
proceed. Otherwise, as the procedural posture of this case
demonstrates, the trial court risks following an appellate decision
that may not ultimately be the final law of the case. When the
trial court issued its May 31, 2019 order, our appellate process
had not yet fully run its course. At the time the trial court acted
(two days after [the Superior] Court published its opinion []), both
Mr. Harris and the Commonwealth still had the right to seek panel
reconsideration, en banc reargument, and/or review by the
Supreme Court of Pennsylvania and ultimately the Supreme Court
of the United States.
Thus, the trial court’s original jurisdiction had not revested by May
31, 2019. Any act taken by a court without proper jurisdiction is
null and void. As such, the May 31, 2019 order at bar is a legal
nullity.
Harris, 230 A.3d at 1127 (citations and footnote omitted and formatting
altered); see also Bell v. Kater, 839 A.2d 356, 358 (Pa. Super. 2003)
(holding that where the certified record had not yet been remanded when the
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trial court entered its order, the trial court did not have jurisdiction to enter
such order and, therefore, such order is void).
Accordingly, even if the appeal at 1012 EDA 2022 did not preclude the
trial court from taking further action pursuant to Pa.R.A.P. 1701, we must
decide whether the record was remanded to the trial court under Pa.R.A.P.
2572 and determine whether the trial court had jurisdiction at the time of the
order. See Pa.R.A.P. 2572; Harris, 230 A.3d at 1127. Because the record
had not yet been remanded to the trial court when the trial court entered the
November 22, 2022 order, the trial court lacked jurisdiction, and the order is
a legal nullity pursuant to Pa.R.A.P. 2572 and Harris. For these reasons, I
would vacate the order and remand this matter to the trial court. Therefore,
I respectfully dissent.
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