J-A12003-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

EMANUELE CASSANI

V.

OLGA SOFIA KAMIAK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

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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.