J-A32009-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN F. KODENKANDETH, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MARY F. KODENKANDETH,

Appellee No. 2050 WDA 2014

Appeal from the Orders Dated November 19, 2014

In the Court of Common Pleas of Allegheny County

Family Court at No(s): FD 07-1796-004

BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 19, 2016

Appellant, John F. Kodenkandeth (“Husband”), appeals pro se from the 

orders dated November 19, 2014, in this equitable distribution action 

involving Appellee, Mary F. Kodenkandeth (“Wife”). We quash in part and 

affirm in part.

We summarize the protracted history of this case as follows. In 1966, 

Wife came to the United States from India as a Fulbright Scholar and 

received a graduate degree in Periodontics from the University of Pittsburgh. 

While in Pittsburgh, Wife met Husband. Wife returned to India in 1970. In 

1971, Husband visited India, and the couple was married in India on July 11, 

1971. The parties eventually returned to the United States. Due to 

domestic abuse, Husband and Wife initially separated in November of 2007. 
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Husband and Wife then permanently separated in April of 2010. Husband 

filed a complaint in divorce in June of 2010.

With regard to equitable distribution, the trial court held a one-day 

hearing in December of 2012 and entered an equitable distribution order on 

January 22, 2013. The final divorce decree was entered on June 11, 2013. 

Once the divorce decree was entered, Husband and Wife each filed crossappeals with this Court. On September 5, 2014, a panel of this Court

affirmed the trial court’s decision relating to the equitable distribution of the 

marital estate. Kodenkandeth v. Kodenkandeth, 1082 WDA 2013, 1092 

WDA 2013, 107 A.3d 219 (Pa. Super. filed September 5, 2014) (unpublished 

memorandum). Neither party sought allowance of appeal with the 

Pennsylvania Supreme Court.

After this Court rendered its decision on September 5, 2014, both 

Husband and Wife filed motions in the trial court. Wife filed a motion for 

clarification of the trial court’s affirmed January 22, 2013 equitable 

distribution order, and Husband filed an answer and motion seeking interest, 

costs, and sanctions from Wife. The trial court entered multiple orders dated 

October 8, 2014, which denied relief to the parties. However, one of the 

trial court’s orders did correct a roughly $6,000 mathematical error that it 
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had previously calculated in relation to Husband’s interest in the marital 

home.1

On November 12, 2014, Husband filed with the trial court two notices 

of presentation, indicating that he would be filing motions with the trial court 

on November 19, 2014. Then on November 19, 2014, Husband filed a 

motion seeking reconsideration of the October 8, 2014 order and a motion 

seeking imposition of a constructive trust on assets allegedly concealed by 

Wife. In orders dated November 19, 2014, the trial court denied both of 

Husband’s motions. On December 16, 2014, Husband filed the instant pro 

____________________________________________

1

In the main order dated October 8, 2014, the trial court stated the 

following:

This Court noted in its [Pa.R.A.P. 1925(a)] Opinion of September 

13, 2013 that there was a mathematical error in the calculation 

as referenced by this Court in its Opinion, dated September 13, 

2013, on page 6. Husband’s monetary interest in the marital 

home is actually $80,054. It is not, as erroneously indicated in 

paragraph 1 of the January 22, 2013 [order], $86,080. 

Therefore, with respect to the marital residence, Wife owes 

Husband $80,054.00.

Order, 10/8/14, at 1 ¶3. Thus, the trial court’s mathematical error was 

$6,026.00. In our previous memorandum affirming the trial court’s decree, 

we acknowledged the trial court’s mathematical error and included the 

following language:

2

In affirming the trial court’s decree, we recognize the [trial] 

court’s correction of the math error involving the sum of $6,026.

Kodenkandeth v. Kodenkandeth, 1082 WDA 2013, 1092 WDA 2013, 107 

A.3d 219 (Pa. Super. filed September 5, 2014) (unpublished memorandum 

at 4 n.2).
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se appeal challenging the denial of his motion for reconsideration and the 

denial of his motion seeking a constructive trust. Wife is also pro se. Both 

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

Husband presents six issues for our review, the first three of which 

contain multiple subparts. Husband’s main issues are as follows:

A. IN THE ORDER DATED NOVEMBER 19, 2014, THE COURT 

ERRED IN REFUSING TO GRANT INTEREST AND COST TO 

[HUSBAND] FOR THE FAILURE OF [WIFE] TO PAY INTEREST 

FROM JANUARY 22, 2013 TO OCTOBER 17, 2014, FOR AMOUNTS 

THAT WERE DUE TO [HUSBAND] BASED ON THE COURT ORDER 

OF JANUARY 22, 2013.

B. TRIAL COURT ERRED IN GRANTING WIFE A CREDIT FOR 

$6026 FOR MARITAL RESIDENCE TOWARDS THE REAL ESTATE 

COMMISSION AND REAL ESTATE TRANSFER TAX. ON AN EX 

PARTE BASIS WITHOUT A HEARING. FURTHER WIFE PAID 

NO REAL ESTATE TAX NOR REAL ESTATE COMMISSION FOR THE 

TRANSFER OF THE HUSBAND’S INTEREST IN THE MARITAL 

RESIDENCE. ON OR ABOUT OCTOBER 17, 2014. AND THIS 

RESULTED IN UNJUST ENRICHMENT BY [WIFE] BY $6026 AND 

ACCRUED INTEREST.

C. TRIAL COURT ERRED, WHEN IT DENIED [HUSBAND’S] 

PETITION DATED NOVEMBER 19, 2014 TO IMPOSE 

CONSTRUCTIVE TRUST, FOR THE UNJUST ENRICHMENT BY THE 

WIFE DUE TO ERRORS OF LAW, ERRORS OF OMISSION, AND 

ABUSE OF DISCRETION.

D. COURT ERRED BY DENYING [HUSBAND’S] PETITION 

DATED NOV 19, 2014, TO ALLOW DISCOVERY PURSUANT TO 23

Pa CSA §3305(C) FOR THE CONSTRUCTIVE TRUST A & R.

E. COURT ERRED BY DENYING [HUSBAND’S] PETITION 

DATED NOV 19, 2014, TO IMPOSE A PRELIMINARY INJUNCTION 

ON THE WIFE TO PREVENT DISSIPATION OF THE FUNDS THAT 

BELONG TO THE CONSTRUCTIVE TRUST A & R.

F. TRIAL COURT ERRED, IN CLAIMING IN THE TRIAL COURT 

OPINION, DATED FEBRUARY 17, 2015, THAT [HUSBAND] 
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SHOULD HAVE APPEALED THE TRIAL COURT ORDER OF 

OCTOBER 8, 2014, AND CONCLUDES THAT [HUSBAND’S] 

MOTION FOR RECONSIDERATION OF NOVEMBER 19, 2014, IS 

UNTIMELY, AND HENCE [HUSBAND’S] APPEAL FROM THAT 

ORDER FOR THE MOTION FOR RECONSIDERATION SHOULD BE 

QUASHED.

Appellant’s Brief at 4-8 (verbatim).

Before we review the issues presented by Husband, we must address 

the timeliness of a portion of this appeal, as it appears that Husband filed his 

notice of appeal concerning the orders dated October 8, 2014, beyond the 

time period permitted by law. Specifically, Husband’s issues A and B pertain 

to the order of the trial court dated October 8, 2014. In issue F, Husband 

lambasts the trial court for concluding that an appeal from the trial court’s 

orders dated October 8, 2014, is untimely. Because the timeliness of an 

appeal implicates our jurisdiction, we cannot address the merits of these 

issues raised by Husband before determining whether such an appeal was 

timely filed. Krankowski v. O’Neil, 928 A.2d 284, 285 (Pa. Super. 2007).

It is undisputed that a notice of appeal must be filed within thirty days 

of the disputed order. Pa.R.A.P. 903(a). In addition, Pa.R.A.P. 1701 

addresses the effect that an application for reconsideration has on the 

appeal process. This rule tolls the time for taking an appeal only when the 

court files “an order expressly granting reconsideration . . . within the time 

prescribed by these rules for the filing of a notice of appeal.” Schoff v. 

Richter, 562 A.2d 912, 913 (Pa. Super. 1989) (citing Pa.R.A.P. 1701).
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Phrased differently the trial court is permitted to grant 

reconsideration only if such action is taken during the applicable 

appeal period. An order granting reconsideration will only be 

effective if it is made and entered on the docket before 

expiration of the applicable appeal period, 30 days from the 

entry of the order which is the subject of the reconsideration 

motion, and if it states that it is expressly granting 

reconsideration. It should be emphasized that the Rule requires 

reconsideration to be expressly granted. It is insufficient for the 

trial court to merely set a hearing date on the reconsideration 

motion or issue a Rule to Show Cause. Failure to “expressly” 

grant reconsideration within the time set by the rules for filing 

an appeal will cause the trial court to lose its power to act on the 

application for reconsideration. See: Note following Pa.R.A.P. 

1701.

Id. (emphasis original). See also Cheathem v. Temple University 

Hospital, 743 A.2d 518, 519-520 (Pa. Super. 1999) (holding that a trial 

court’s order granting reconsideration must state expressly that 

reconsideration is granted and entry of a hearing date on the motion is 

inadequate to satisfy the mandate of the Rules).

Therefore, as the comment to Pa.R.A.P. 1701 explains, although 

a party may petition the court for reconsideration, the 

simultaneous filing of a notice of appeal is necessary to preserve 

appellate rights in the event that either the trial court fails to 

grant the petition expressly within 30 days, or it denies the 

petition.

Valley Forge Ctr. Assocs. v. Rib-It/K.P., Inc., 693 A.2d 242, 245 (Pa. 

Super. 1999).

Our review of the certified record reflects that in September of 2014, 

Wife filed a motion for clarification of the trial court’s order of January 22, 

2013. On September 24, 2014, Husband filed an answer to Wife’s motion for 

clarification and included therein a petition for costs. In an order dated 
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October 8, 2014, and entered upon the docket on October 10, 2014, the trial 

court disposed of both Wife’s and Husband’s requests. Thus, assuming for the 

sake of argument that the appeal period did not begin until the October 8, 

2014 order was docketed on October 10, 2014, Husband had until November 

10, 2014, to file a timely appeal from that order or a timely motion for 

reconsideration.2

Notwithstanding the fact that the appeal period expired November 10, 

2014, on November 12, 2014, Husband filed with the trial court a notice of 

presentation indicating that on November 19, 2014, Husband would be filing a 

motion for reconsideration with the trial court titled, “[Husband’s] Motion for 

reconsideration of the order of October 8, 2014.” Husband’s untimely motion 

for reconsideration did not toll the appeal period, which expired on November 

10, 2014. Cheathem, Valley Forge Ctr. Assocs. Moreover, the trial court 

did not enter an order “expressly granting” Husband’s motion for 

reconsideration within the appeal period. Although the trial court accepted 

Husband’s motion for reconsideration for filing and ultimately denied it in an 

order dated November 19, 2014, the trial court failed to “expressly grant” 

Husband’s motion for reconsideration within the thirty-day appeal period. 

____________________________________________

2 We note that Husband needed to file his appeal by Monday, November 10, 

2014, because November 9, 2014, was a Sunday. See 1 Pa.C.S. § 1908 

(stating that, for computations of time, whenever the last day of any such 

period shall fall on Saturday or Sunday, or a legal holiday, such day shall be 

omitted from the computation). See also Pa.R.A.P. 107; Pa.R.A.P. 903, 

note.
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Husband then filed this appeal on December 16, 2014, thirty-six days after the 

time for filing a timely appeal had elapsed.

Accordingly, because the trial court did not enter a timely order expressly 

granting Husband’s motion for reconsideration, the thirty-day appeal period 

was not tolled. Rule 903(a), requiring the notice of appeal to be filed within 

thirty days of the order dated October 8, 2014, and entered on the docket on 

October 10, 2014, remained in effect. Therefore, this Court is without 

jurisdiction to hear the untimely portion of this appeal related to Husband’s 

challenge to the underlying order dated October 8, 2014. Hence, we are 

constrained to quash the portion of Husband’s appeal pertaining to the order 

dated October 8, 2014, and docketed on October 10, 2014.3

____________________________________________

3

In an effort to avoid the untimely nature of his appeal from the trial court’s 

order dated October 8, 2014, Husband has alleged that the order was 

actually docketed on October 22, 2014, and he references an item with the 

docket number of 184. Appellant’s Brief at 9, 10, 36, 37. We have 

thoroughly reviewed the certified record before us, and we observe that item 

number 184 in the record is not an order docketed on October 22, 2014. In 

actuality, item number 184 is Wife’s unrelated pro se “Answer to 

[Husband’s] Petition to Unfreeze Kodenkandeth Foundation And Liquidate 

[Wife’s] interest in the Kodenkandeth Trust” that was docketed on December 

4, 2014.

Furthermore, our review has revealed that the only item docketed in 

the certified record on October 22, 2014, is a copy of Wife’s “Motion For 

Clarification of Hon. Judge Hens Greco’s Order of Jan. 22, 2013,” which had 

been presented to the trial court in September of 2014, and it bears the 

docket number 176. However, we observe that appended to Wife’s motion 

at docket number 176 is a proposed order prepared by Wife. Notably, the 

trial judge crossed out the language of Wife’s proposed order and hand 

wrote the words: “Denied. See order of October 8th 2014.” Therefore, even 

(Footnote Continued Next Page)
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In his issues C, D, and E, Husband argues that the trial court erred with 

regard to his request for the imposition of a constructive trust. Husband 

contends that the trial court erred in failing to create a constructive trust on 

assets that he alleges unjustly enriched Wife and he believes that discovery 

should have ensued. Further, Husband claims that the trial court should have 

granted an injunction to prevent Wife from allegedly dissipating marital assets 

that belong in the constructive trust.

Section 3505 of the Divorce Code presents proper procedures to prevent 

parties from disposing, removing, encumbering, or alienating property to 

defeat equitable distribution. 23 Pa.C.S. § 3505. Specifically, section 3505(d) 

addresses the imposition of constructive trusts for a party’s failure to disclose 

assets and provides as follows:

If a party fails to disclose information required by general rule of 

the Supreme Court and in consequence thereof an asset or 

assets with a fair market value of $1,000 or more is omitted 

from the final distribution of property, the party aggrieved by the 

nondisclosure may at any time petition the court granting the 

award to declare the creation of a constructive trust as to all 

undisclosed assets for the benefit of the parties and their minor 

or dependent children, if any. The party in whose name the 

(Footnote Continued) _______________________

assuming for the sake of argument that the October 8, 2014 order was not 

final until this document at docket number 176 was docketed on October 22, 

2014, we still conclude that Husband’s appeal challenging the content of the 

October 8, 2014 order was untimely because Husband should have filed his 

notice of appeal on or before November 21, 2014. As stated above, 

Husband did not file his appeal until December 16, 2014. In addition, 

Husband’s motion for reconsideration, which the trial court denied, did not 

toll the appeal period. Thus, Husband’s efforts to extend the appeal period 

do not provide him relief.
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assets are held shall be declared the constructive trustee unless 

the court designates a different trustee, and the trust may 

include any terms and conditions the court may determine. The 

court shall grant the petition upon a finding of a failure to 

disclose the assets as required by general rule of the Supreme 

Court.

23 Pa.C.S. § 3505(d) (emphasis added).

We have reviewed the briefs of the parties, the relevant law, the certified 

record before us and the opinion of the trial court dated February 17, 2015. 

We conclude that the trial court’s opinion adequately addresses Husband’s 

issues concerning the trial court’s refusal to impose a constructive trust in this 

matter. Accordingly, we adopt the trial court’s opinion as our own and affirm 

the November 19, 2014 order that denied Husband’s petition for a constructive 

trust on its basis.4

Appeal quashed in part. Order of November 19, 2014 affirmed. 

Jurisdiction relinquished.

____________________________________________

4 The parties are directed to attach a copy of that opinion in the event of 

further proceedings in this matter.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016