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POSNER v. SHERIDAN (01/19/73)

decided: January 19, 1973.

POSNER
v.
SHERIDAN, APPELLANT



Appeal from decree of Court of Common Pleas, Family Division, of Allegheny County, April T., 1970, No. 818, in case of Mary Janet (Sheridan) Posner v. Thomas Sheridan and Mellon National Bank & Trust Company.

COUNSEL

John G. Kish, with him Brennan and Brennan, for appellant.

Henry H. Wallace, with him Wallace and Lipton, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Nix. Mr. Justice Roberts and Mr. Justice Manderino join in this dissenting opinion.

Author: Eagen

[ 451 Pa. Page 55]

Presently before us is an appeal from a decree of the Court of Common Pleas, Family Court Division, of Allegheny County, which directed the foreign attachment garnishee, Mellon Bank, to pay appellee the sum of $9165 from the principal and interest of a spendthrift trust. The question which this case presents is not one of jurisdiction but of internal common pleas court administration.

The cause arose in the following manner. In December 1968, Mary Posner, appellee, was granted a final decree of divorce from Thomas Sheridan by the Superior Court of the State of California. This judgment included a direction to Sheridan to pay appellee $235 monthly for the support of their two children. Sheridan failed to make payments and an arrearage allegedly accumulated in the amount of $9165 plus interest.*fn1

On January 29, 1970, Mrs. Posner filed a praecipe for a writ of foreign attachment and a complaint in equity against Sheridan and Mellon Bank. The bank was summoned as garnishee, because it is the trustee of a spendthrift trust fund created for Sheridan by the Will of his mother, Mary Harris Sheridan, a resident of Allegheny County at her death.

The complaint went unanswered and a default judgment was entered against Sheridan on March 30, 1970.

In accordance with Pa. R. C. P. 1274, a rule was served on the bank as garnishee to answer interrogatories.

[ 451 Pa. Page 56]

In its answer the bank admitted the existence of a trust and declared that Sheridan's share of the total principle was $10,030.43. The bank also averred that the present interest of Sheridan was limited to income and that if he failed to survive the term of the trust, the principal was to be paid over to his surviving children, or alternately to the other children of the settlor or their heirs.*fn2

Under "New Matter" appellant asserted that the trust was under the jurisdiction of the Orphans' Court Division and that the principal of the trust was immune from attachment.

The lower court entered a decree striking off the averments contained in the "New Matter" and directed the bank to pay the attaching creditor $9165 from the trust funds and to continue to pay $235 monthly until the principal and income of trust were exhausted.*fn3

[ 451 Pa. Page 57]

We will vacate the decree. The issue was improperly entertained in the Family Division, and, more importantly, that court's decree is incorrect as a matter of law.

The instant case, like any foreign attachment proceeding, contemplates two judicial determinations: first whether Sheridan owes his former wife anything;*fn4 and second, whether the garnishee has anything of Sheridan from which appellee can collect what is due her. See General Maintenance ...


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