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COMMONWEALTH EX REL. ELDREDGE v. ELDREDGE (04/15/54)

April 15, 1954

COMMONWEALTH EX REL. ELDREDGE
v.
ELDREDGE



COUNSEL

Jay D. Barsky, Trommer, Silver & Barsky, Philadelphia, for appellant.

Lemuel B. Schofield & W. Bradley Ward, Philadelphia, for appellee.

Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.

Author: Wright

[ 175 Pa. Super. Page 277]

WRIGHT, Judge.

This is an appeal from the reinstatement of a support order and the entry of judgment for arrearages thereon. The Municipal Court is the proper forum regardless of the amount involved. Thomas v. Thomas, 112 Pa. Super. 578, 172 A. 36. It is asserted by counsel that the factual situation here presented is entirely novel.

On February 28, 1918, an order in amount of $7 per week was entered by the Municipal Court against Harry Eldredge, for the support of his wife, Veronica, and their daughter, Anna Marie, then two years of age. On May 20, 1924, this order was suspended and the arrearages accrued thereon remitted. On July 26, 1934, the order was reinstated in amount of $5 per week for support of the wife only. On May 10, 1944, a probation officer filed a petition to vacate the order and remit the arrearages thereon under Rule 202 of the Municipal Court. The rule provides that, where the party in whose favor an order has been made 'cannot be located within the period of one year, said order

[ 175 Pa. Super. Page 278]

    shall automatically cease to be recorded in the Department of Accounts; but it may subsequently be reviewed for reinstatement * * * in a proceeding for the reinstatement or discontinuance of the said order'.

On May 26, 1944, this petition came before the court and, although neither of the parties were present or had any notice, the court vacated the order and remitted the arrearages thereon 'without prejudice'. Subsequently, appellee learned that her husband had died in New Yourk City on January 24, 1953. When she undertook to reduce the arrearages to judgment for the purpose of asserting a claim against her husband's estate, the order of May 26, 1944, was discovered. On July 2, 1953, appellee filed a motion to reinstate the order of July 26, 1934. Notice of the filing of this motion and of the hearing to be held thereon was served personally in New York City on the executor of the estate of Harry Eldredge. On September 18, 1953, after a hearing at which counsel for the executor appeared specially for the sole purpose of contesting the court's jurisdiction, the order of May 26, 1944, was vacated and the order of July 26, 1934, was reinstated. On October 30, 1953, upon appellee's petition, the court ordered that judgment be entered against Harry B. Eldredge in the sum of $3,739.40*fn1 This appeal was then taken by the executor.

Appellant has presented three contentions which we will consider in reverse order. He argues that the court 'should not upset its own order made pursuant

[ 175 Pa. Super. Page 279]

    to its own Rule 202 dismissing a support order without prejudice, where it appears that the wife, in whose favor the order had been entered, could not be found, the order was inactive for ten years, and reasonable attempts were made to locate the wife'. Our understanding of his position in this regard is that, conceding arguendo that the court had the power to enter the order of September 18, 1953, it should not have done so under the circumstances. During the entire proceeding the wife was represented on the record by counsel prominent at the Philadelphia Bar, who could have been reached by a simple telephone call. We are not impressed by appellant's assertion that Mrs. Eldredge 'was guilty of the grossest laches'. She was ...


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