Appeal, No. 128, April T., 1954, from order of Court of Common Pleas of Allegheny County, Oct. T., 1943, No. 80, in case of Aida N. Marra v. Daniel A. Marra. Order affirmed.
John B. Nicklas, Jr., with him McCrady & Nicklas, for appellant.
Wm. J. Graham, with him Clyde P. Bailey, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright and Ervin, JJ. (woodside, J., absent).
[ 178 Pa. Super. Page 103]
Daniel A. Marra appeals from the lower court's refusal to allow him restitution, by way of a credit against future permanent alimony, for monies paid to his wife in excess of the one-third statutory limit fixed by this Court in his prior appeal, Marra v. Marra, 170 Pa. Superior Ct. 588, 88 A.2d 112.
On March 28, 1951 the Allegheny County Court granted a limited divorce to Aida N. Marra, appellee, and awarded her $300 a month permanent alimony. On appeal we reduced this award to $160 a month to conform to the statutory maximum limit of one-third of the husband's annual profit or income. Section
[ 178 Pa. Super. Page 10447]
of the Act of 1929, 23 PS sec. 47. No formal supersedeas was applied for by appellant, and for 13 months during the pendency of that appeal he paid $300 a month alimony to his wife. When our decision reducing the alimony was handed down, the appellant petitioned the Allegheny County Court praying for a further reduction in the alimony and for a credit of $1,820 ( $140 "overpayment" a month for 13 months) against future alimony. The lower court discharged his petition and rule and he appealed. We are not concerned with the refusal to reduce the alimony since appellant has abandoned that point in his appeal.
Thus the only matter before us is the refusal to allow restitution of the "overpayment" by way of a credit against future alimony. The problem appears to be one of first impression in this jurisdiction, although we have analogous situations presented by two lines of cases: those which allow restitution of money judgments paid during the pendency of a successful appeal, and those which refuse restitution of money paid as alimony pendente lite.
In the first group we find such decisions as Benscotter v. Long, 167 Pa. 595, 31 A. 863; Whitesell & Sons v. Peck, 176 Pa. 170, 35 A. 48, and Charak v. John T. Porter Co., 288 Pa. 217, 135 A. 730, wherein writs of restitution were allowed for the recovery of money judgments paid during the pendency of an appeal which ultimately resulted in the judgment being reversed. Appellant contends that the instant case is governed by these. With this we cannot agree. A careful study of these cases discloses that there is involved in each an element of coercion. In each, the judgment creditor issued execution on the ...