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WILCOX v. EVANS (08/10/59)

August 10, 1959

WILCOX
v.
EVANS, APPELLANT.



Appeal, No. 170, Oct. T., 1959, from order of Municipal Court of Philadelphia County, Aug. T., 1958, No. 1703, in case of Homer B. Wilcox, Jr. v. Elizabeth N. Evans. Order affirmed.

COUNSEL

Edmund B. Spaeth, Jr., with him MacCoy, Evans & Lewis, for appellant.

David F. Maxwell, with him Herbert A. Fogel, and Obermayer, Rebmann, Maxwell & Hippel, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 190 Pa. Super. Page 167]

OPINION BY WOODSIDE, J.

This is an appeal by the defendant from the order of the Municipal Court of Philadelphia overruling the defendant's preliminary objections to a complaint in equity. The appeal questions the jurisdiction of the Municipal Court.

Homer B. Wilcox, Jr., the plaintiff, and Elizabeth N. Evans, the defendant, were married on October 25, 1941. Four children were born of the marriage. As a result of marital differences, the parties determined to live apart, and entered into a separation agreement on January 9, 1954. The parties were divorced a.v.m. on October 24, 1955, and the agreement was amended to conform to the changed circumstances and to provide thereafter for the support of the children. Both parties have since remarried.

On August 15, 1958, the plaintiff filed a complaint in equity seeking an order remitting accumulated arrearages

[ 190 Pa. Super. Page 168]

    in the payments and reducing the support payments below the sum contained in the agreement. The defendant filed preliminary objections to the complaint on the grounds that the Municipal Court of Philadelphia did not have jurisdiction over the subject matter in that the value of the matter or thing in controversy exceeded the sum of $5,000, that the record of the Municipal Court disclosed that plaintiff had failed to file a certificate as to the amount of the thing or matter in controversy, and lastly, that the complaint does not state a cause of action. The Municipal Court overruled the preliminary objections and the defendant appealed to this Court.

The defendant was procedurally correct when she included both the jurisdictional questions and the demurrer in her preliminary objections, and the court below was procedurally correct in passing upon both. See Pa. Civil Procedure No. 1017b(1) and (4) and Rule No. 1028. Orders made on preliminary objections are interlocutory, and ordinarily not appealable. Fairchild E. & A. Corp. v. Bellanca Corp., 391 Pa. 177, 181, 137 A.2d 248 (1958). However, the Act of March 5, 1925, P.L. 23, 12 PS ยง 672,*fn1 provides that an appeal may be taken directly from the determination of the order of the court on a jurisdictional question. This act does not relate to the matters going to the right of the plaintiff to recover on his cause of action, but to his right to have his cause of action heard and determined. Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, ...


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