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MARSHALEK v. MARSHALEK (11/10/64)

November 10, 1964

MARSHALEK
v.
MARSHALEK, APPELLANT.



Appeal, No. 194, March T., 1964, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1963, No. 2005, in case of Elizabeth Marshalek v. Bernard J. Marshalek. Decree vacated.

COUNSEL

Ella Graubart, with her Patterson, Crawford, Arensberg & Dunn, for appellant.

David R. Levin, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 415 Pa. Page 583]

OPINION BY MR. JUSTICE JONES

This is an appeal from the dismissal of exceptions to a modified decree of the Court of Common Pleas of Allegheny County restraining and enjoining Bernard J. Marshalek (Marshalek) from: (1) filing an action in divorce in any jurisdiction other than the County of Allegheny or an adjoining county, and (2) leaving the Commonwealth of Pennsylvania for any purpose until a bond in the amount of $3,000 with surety was posted, conditioned upon his satisfactory performance of the terms of a support order entered in the County Court of Allegheny County.

Marshalek and Elizabeth Marshalek (Mrs. Marshalek), his wife, the parents of three minor children, have been separated since November 1962. Believing that her husband was about to leave the Commonwealth

[ 415 Pa. Page 584]

    to obtain a divorce,*fn1 Mrs. Marshalek filed this action on August 13, 1963. The parties subsequently entered into a support agreement in the County Court of Allegheny County requiring payments of $270 monthly.*fn2 Testimony was taken and a decree entered on August 21, 1963. On November 19, 1963, Marshalek filed a petition to dissolve the injunction. Following a hearing a modified decree nisi was entered on January 22, 1964, exceptions to it dismissed and this appeal taken.

The thrust of Marshalek's argument is that the court of common pleas did not have equitable jurisdiction in this case and that, even if it did, the decree exceeded the demand of the equities of the situation. The court below based its jurisdiction on (1) the Act of May 23, 1907, P.L. 227, as amended, 48 P.S. ยง 131, and (2) the claim that there was no adequate remedy at law.

The Act of 1907, supra, provides, inter alia: "If any man shall separate himself from his wife or children without reasonable cause, and, being of sufficient ability, shall neglect or refuse to provide suitable maintenance for his said wife or children, action may be brought, at law or in equity, against such husband for maintenance of said wife or children, in the court of common pleas of the county ... where the wife and children are domiciled, and the said court shall have power to entertain a bill in equity in such action, and shall make and enforce such orders and decrees as the equities of the case demand." (Emphasis supplied). The ...


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