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LINETT v. LINETT (05/28/69)

decided: May 28, 1969.

LINETT
v.
LINETT, APPELLANT



Appeal from order of Court of Common Pleas of Philadelphia County, Jan. T., 1968, No. 1576, in case of Estelle R. Linett v. Louis Linett.

COUNSEL

Walter I. Higgins, for appellant.

Laurence H. Eldredge, with him David H. Kubert, for appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 434 Pa. Page 442]

This action centers on the unfortunate legal skirmishing that has occurred between this couple in the last several years. At least seven different law suits are involved either directly or collaterally. The first developed in 1965 when the wife (appellee in the instant action) filed an action in equity in the Court of Common Pleas of Philadelphia asking for injunctive relief against her husband's plans to leave the Commonwealth and secure a divorce in a foreign jurisdiction. This suit was dismissed on the husband's preliminary objection that the action was premature. On July 15, 1966, the husband (appellant) filed suit for divorce in the same court. His wife vigorously contested the action and after thirteen hearings the husband entered a voluntary non-suit on January 5, 1968. Also the wife had filed at least three actions, two in equity in the common pleas court, seeking an accounting by the husband of entireties rentals collected by him, and one in the county court in 1963

[ 434 Pa. Page 443]

    which resulted in a $40 per week support order against the husband.

Finally there are the two actions which are directly before this Court at this time. On January 5, 1968, the husband filed a suit for divorce in Reno, Nevada. A copy of the complaint in that action was served on the wife in Philadelphia on January 16, 1968. On January 23 the wife filed a complaint in equity "that an injunction may issue, enjoining and restraining the defendant preliminarily until hearing and perpetually thereafter, from commencing or proceeding with any action for divorce in the State of Nevada." On the same day, an order was signed permitting the plaintiff to serve a copy of the complaint on the husband outside the state of Pennsylvania. This complaint was served on him in Reno on February 6, 1968 at 10:00 A.M. On the same day and at the same time a final decree in divorce was filed in the office of the clerk of court of the Second Judicial District of the State of Nevada granting an absolute divorce to the husband. On February 28, 1968, after the filing of an affidavit of service, a judgment was taken by the wife in her equity action alleging default for want of the filing of an answer within twenty days from the date of service of the complaint. Judge Sporkin, on April 1, 1968 entered a final decree and findings of fact and conclusions of law implementing the default judgment of February 28, 1968. Appellant filed a motion to strike this default judgment and an argument was held on this motion on September 19, 1968. Judge Sloane denied the motion to strike and this appeal followed.

Appellant's first asserted ground for striking the default judgment concerns the out of state service made on him in Reno. He claims that the service which the trial court authorized under Pennsylvania Rule of Civil Procedure 1504(b) (2), was improper under that rule and that therefore the court below had no

[ 434 Pa. Page 444]

    jurisdiction to enter a default judgment against appellant. However, it is this Court's view that the service was perfectly proper under Rule 1503(a)(2) and that the court did have jurisdiction to enter an in personam default judgment. For this reason we need not consider appellant's contentions under Rule 1504 (b) (2).*fn*

Rule 1503 (a) (2) provides that a "decree shall not bind a defendant personally unless . . . he appears or otherwise submits himself to the jurisdiction of the court." (Emphasis supplied.) This Court had occasion to interpret the meaning of this section in the recent case of Rothman v. Rothman, 425 Pa. 406, 228 A.2d 899 (1967). In that case, the husband argued that the court had failed to obtain jurisdiction over him because neither of the two places served was his residence. However, we pointed out that because the husband was a defendant in two other actions before the same court, an action in divorce and an action for support, he came within the language of Rule 1503(a) (2). Thus, although he may have been improperly served, the court had jurisdiction over him because "he had otherwise submitt[ed] himself to the jurisdiction of the court" in these other two actions. For authority, the Rothman Court cited Wenz v. Wenz, 400 Pa. 397, 162 A.2d 376 (1960), a case in which the husband resisted the jurisdiction of the court in ...


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