J. S82030/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOANNA KOVALESKI : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

KEN ANDREW KOVALESKI, :

APPELLANT :

: No. 455 MDA 2016

Appeal from the Order Entered February 17, 2016

In the Court of Common Pleas of Lackawanna County 

Civil Division at No(s): 2015 FC 41393

 

BEFORE: OTT, DUBOW, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 13, 2017

Appellant, Ken Andrew Kovaleski, appeals from the Divorce Decree 

entered on February 17, 2016, in the Lackawanna County Court of Common 

Pleas. We vacate in part and quash in part.

The relevant facts and procedural history as gleaned from the record 

are as follows. Appellant and Joanna Kovaleski, Appellee, married on 

September 2, 2006. On July 4, 2012, the parties separated when Appellant 

left the marital home after being accused of raping one of the parties’ 

children.

On February 26, 2014, a jury convicted Appellant of Rape By Forcible 

Compulsion, Statutory Sexual Assault, Incest, and numerous other offenses. 

 

* Retired Senior Judge Assigned to the Superior Court.
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The court sentenced him to an aggregate term of 15 to 30 years’ 

incarceration.

On October 29, 2015, Appellee filed a Complaint in divorce pursuant to 

23 Pa.C.S. § 3301(a)(6)1and 23 Pa.C.S. § 3301(a)(2),2and sought

equitable distribution pursuant to 23 Pa.C.S. § 3502.

3

 On December 2, 

2015, Appellee’s counsel filed a Proof of Service attesting that she served 

Appellant with the Complaint and an Amended Complaint on November 16, 

2015, by certified mail, at his place of residence,4and received a signed 

receipt and return on November 18, 2015.

On December 30, 2015, although no Petition for Bifurcation appears in 

the record, the trial court entered an Order bifurcating Appellee’s divorce 

 

1 A plaintiff establishes grounds for divorce pursuant to this subsection if the 

court determines that the defendant “[o]ffered such indignities to the 

innocent and injured spouse as to render that spouse’s condition intolerable 

and life burdensome.” 23 Pa.C.S. § 3301(a)(6).

2 A plaintiff establishes grounds for divorce pursuant to this subsection if the 

court determines that the defendant “[c]omitted adultery.” 23 Pa.C.S. § 

3301(a)(2).

3 On November 4, 2015, Appellee filed an Amended Complaint, which 

appears to this Court to be identical in all respects to the Complaint filed on 

October 29, 2015. The record also includes a subsequent Amended 

Complaint, verified on December 29, 2015, served on Appellant at SCI 

Rockview on February 11, 2016, and docketed on February 17, 2016. This 

Amended Complaint included as grounds for divorce 23 Pa.C.S. § 3301(a)(5) 

(“[b]een sentenced to imprisonment for a term of two or more years upon 

conviction of having committed a crime[]”), and 23 Pa.C.S. § 3301(a)(6), 

and removed reference to 23 Pa.C.S. § 3301(a)(2). 

4 SCI Rockview, Box A, Rockview Place, Bellefonte, PA 16823.
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action from her economic claims, and scheduling an “[e]xpedited hearing on 

[Appellee’s] Decree in Divorce” for January 25, 2016. See Trial Ct. Order, 

12/30/15. 

On January 22, 2016, Appellant filed a pro se Notice of Appeal from 

the court’s December 30, 2015 Order. Appellant invoked Pa.R.A.P. 311 

(appeals from interlocutory orders as of right) as the basis for his appeal.5 

Consequently, on January 25, 2016, the court issued an Order continuing 

the hearing on Appellee’s “Petition for Bifurcation”6 until February 17, 2016. 

See Trial Ct. Order, 1/25/16.

The court held a hearing on Appellee’s Divorce Complaint on February 

17, 2016. Appellant participated in the hearing by telephone at SCI 

Rockville, but abruptly and purposefully disconnected the line before either 

he or Appellee had testified about the substantive issues raised in Appellee’s 

 

5 On February 10, 2016, Appellee filed a Petition to Strike Appeal, in which 

she alleged that Appellant’s appeal from the trial court’s December 30, 2015 

Bifurcation Order should be stricken as improper because Appellant filed 

neither an In Forma Pauperis Petition or paid the appeal filing fee. The trial 

court granted Appellee’s Petition on February 10, 2016, and struck 

Appellant’s appeal with prejudice. The record reflects that Appellee served 

Appellant at SCI Rockville with a copy of her Petition to Strike the Appeal 

and the court’s Order by U.S. Mail on February 11, 2016.

6 We assume that the trial court’s reference to a February 17, 2016 hearing 

on Appellee’s Petition for Bifurcation was a typographical error as the court 

had already entered an Order granting this Petition—and Appellant had 

taken an appeal from it—on December 30, 2015. Rather, our review of the 

Notes of Testimony from the February 17, 2016 hearing, and the trial court’s 

Pa.R.A.P. 1925(a) Opinion, indicate that this hearing was intended to be, 

and indeed was, a hearing on Appellee’s Divorce Complaint. 
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Complaint. The court then took Appellee’s testimony, following which it 

entered an Order on February 17, 2016, granting Appellee a fault divorce 

pursuant to 23 Pa.C.S. § 3301(a)(5) and 23 Pa.C.S. § 3301(a)(6). 

On March 5, 2016, Appellant filed a timely Notice of Appeal. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following six issues on appeal:

1. Did [the] Lackawanna County Court of Common Pleas 

err by bifurcating the economic claims from the divorce 

claims when no [P]etition for bifurcation was filed on the 

docket, no notice of bifurcation was provided to 

[d]efendant, no bifurcation hearing was conducted, and a 

bifurcation Order issued without the [d]efendant being 

given any chance to respond?

2. Did the Lackawanna County Court of Common Pleas err 

by proceeding in a divorce action against an incarcerated 

[d]efendant who neither was properly served by mail as 

outlined by Pa.R.C.P. 1930.4(c) nor was supplied proper 

notice of said action as the notice received did not provide 

specific notice of his right to apply to the court for a writ of 

habeas corpus ad testificandum to enable him to attend 

the hearing?

4. Did [the] Lackawanna County Court of Common Pleas 

err when it hijacked jurisdiction/venue by hearing this 

matter over [Appellant’s] objections when neither 

[Appellee nor Appellant] resided in Lackawanna County at 

any time during the pendency of this action which is 

contrary to 23 Pa.C.S.[] § 3104(e) and Pa.R.C.P. 1920.2.

4. Did [the] Lackawanna County Court of Common Pleas 

err by quashing [Appellant’s] properly filed [i]nterlocutory 

[a]ppeal as of right for failure to file In Forma Pauperis in 

direct violation of Pa.R.A.P. [ ] 902, and when [Appellant] 

did notify the Prothonotary of [his] request to proceed In 

Forma Pauperis and specifically asked to be advised of any 

additional documentation needed to fulfill [an] In Forma 

Pauperis request?
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5. Did [the] Lackawanna County Court of Common Pleas 

err by refusing to recognize [Appellant’s] second proper 

[i]nterlocutory [a]ppeal that was filed pursuant to the 

Prisoner’s Mailbox Rule on February 8, 2016?

6. Did [the] Lackawanna County Court of Common Pleas 

err when it granted [Appellee] a fault divorce when the 

parties had lived “separate and apart” far less than the two 

year time period required by 23 Pa.C.S.[] § 3301?

Appellant’s Brief at 4-5 (reordered for ease of disposition).

In his first issue, Appellant claims that the trial court erred in 

bifurcating this divorce action when no Petition for Bifurcation was filed on 

the docket, Appellant was not provided with notice of the Petition and a 

hearing, the court failed to conduct a bifurcation hearing, and the court 

issued a bifurcation Order without Appellant being given a chance to 

respond. Id. at 17-19.

Pursuant to Section 3323(c.1) of the Divorce Code, a trial court may 

enter a Divorce Decree prior to resolution of the economic issues between 

the parties either with the consent of both parties or if the movant 

demonstrates that compelling circumstances exist for entry of the Divorce 

Decree. See 23 Pa.C.S. § 3323(c.1). An Order granting a Petition for 

Bifurcation is interlocutory; however once the court has entered a divorce 

decree, a bifurcation Order is immediately appealable. See Savage v. 

Savage, 736 A.2d 633, 643-44 (Pa. Super. 1999); see also Curran v. 

Curran, 667 A.2d 1155, 1157 (Pa. Super. 1995). We review a trial court’s 

Order bifurcating a divorce action for an abuse of its discretion. Savage, 
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supra at 644. We defer to the trial court’s discretion “[s]o long as the trial 

judge assemble[d] adequate information, thoughtfully studie[d] this 

information, and then explain[ed] his decision . . . [T]his determination 

should be the result of a reflective examination of the individual facts of each 

case.” Id. (citation omitted). 

Appellant essentially argues on appeal that the trial court abused its 

discretion in entering the bifurcation Order both because Appellant did not 

have notice of Appellee’s Bifurcation Petition and a hearing thereon, and 

because the court did not actually conduct a hearing on the Petition.7 

Following our review of the record in this matter, we are compelled to agree 

with Appellant. 

We note a conspicuous absence in the record of a Petition for 

Bifurcation, and a Notice scheduling a hearing on the Petition, which took 

place on December 30, 2015. Moreover, our review of the Notes of 

Testimony from the February 17, 2016 hearing on Appellee’s Divorce 

Complaint indicates that Appellant informed the court that he did not have 

notice of the Bifurcation Petition and that it did not appear on the docket. 

N.T., 2/17/16, at 9. Appellee’s counsel conceded that the Petition was filed 

initially at the incorrect docket number, but alleged that it had been 

 

7 Because the trial court entered a divorce decree in this matter on February 

17, 2016, an appeal from the court’s bifurcation Order is properly before this 

Court. See Savage, supra. 
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“transferred to the correct docket number.” Id. Nothing in the record 

supports this contention. 

We find, therefore, that Appellant did not have notice of Appellee’s 

desire to bifurcate the divorce and economic claims, and was deprived of the 

opportunity to state his objections on the record at a hearing. Accordingly, 

the trial court erred in entering its December 30, 2015 Order bifurcating this 

action and we must vacate it.8

Our conclusion that the trial court’s Order bifurcating this divorce 

action was improper renders the Divorce Decree entered by the court on 

February 17, 2016, interlocutory, as the trial court has not yet resolved 

Appellee’s economic claims. See Fried v. Fried, 501 A.2d 211 (Pa. 1985) 

(explaining generally that, when a divorce is not bifurcated, issues that arise 

in a divorce action are reviewable on appeal only after entry of the divorce 

decree). Accordingly, the court has not entered a final Order in this case, 

we lack jurisdiction to consider the remaining issues raised by Appellant, and 

we quash this appeal as to those issues.

December 30, 2015 Order vacated. Appeal quashed. Case remanded. 

Jurisdiction relinquished.

 

8 Moreover, even if Appellant had had notice of the Petition and hearing, we 

would still vacate the court’s December 30, 2015 Order as it does not 

“provide any explanation as to the reasoning underlying the bifurcation 

[O]rder . . . on the record, prior to the entry of a bifurcation [O]rder or 

within the [O]rder itself” as it is required to do. Brian v. Brian, 872 A.2d 

843, 846 (Pa. Super. 2005) (emphasis in original). 
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 Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2017