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BREDT ET AL. v. BREDT (09/23/74)

decided: September 23, 1974.

BREDT ET AL.
v.
BREDT, APPELLANT



Appeal from order of Court of Common Pleas of Montgomery County, April T., 1972, No. 417, in case of Natalie Bredt, individually and on behalf of Sandra Diane Bredt, a minor and Barry Michael Bredt, a minor v. Robert Bredt.

COUNSEL

I. Raymond Kremer, with him Neil H. Stein, and Kremer, Krimsky & Luterman, for appellant.

Bruce W. Kauffman, with him David H. Pittinsky, Gary R. Leadbetter, and Dilworth, Paxson, Kalish, Levy & Coleman, and Joseph H. Weiss, and Weiss, Lesser & Greenburg, for appellee.

Watkins, P. J., Jacobs, Cercone, Price, Van der Voort, and Spaeth, JJ. (Hoffman, J., absent). Opinion by Jacobs, J. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 231 Pa. Super. Page 67]

This case began as a simple civil action for support of a wife and two children, later reduced to one child. By agreement a temporary support order in the amount of $500 per week was entered against appellant husband. A hearing was set for March 21, 1973, to fix the order. On the date of the scheduled hearing, the parties came before the court, told it that an agreement had been finally reached, and proceeded to reiterate the details of the agreement to the court. Although minor problems arose regarding certain provisions in the agreement, they were straightened out by afternoon. At the conclusion of the hearing, the court asked the parties and their counsel whether they regarded it as their agreement now. They all replied in the affirmative. The same day, March 21, 1973, the lower court continued the initial temporary support order of $500 pending counsels' formal writing of the terms of the agreement recited before the court. However, disputes arose as to certain provisions, and the agreement was never formalized.

In November, 1973, the wife filed a complaint in equity against the husband requesting, inter alia, a decree specifically enforcing the agreement, enjoining the husband from proceeding with a suit for divorce which he had started in New Jersey, and declaring void certain transfers allegedly made by the husband. On January 17, 1974, the wife filed in the support proceeding a motion for enforcement of the support order and agreement and also for all the equitable relief requested in the equity action.

[ 231 Pa. Super. Page 68]

The matter proceeded to a hearing at which time the court on motion of the wife's counsel consolidated the non-support action and the equity action for a joint hearing. This was permissible under Pa. R. C. P. 213 (a), the cases involving the same parties and common questions of law and fact. See Hare v. Am. Gen. Life Page 68} Ins. Co., 43 Pa. D. & C. 2d 126 (C.P. Lycoming 1967) and 5 Standard Pennsylvania Practice 184 (1958). Since the equity and support actions involved different issues they were consolidated only for the hearing. They retained their separate identities and the court below should have entered separate orders. See Sisk v. Duffy, 201 Pa. Superior Ct. 213, 192 A.2d 251 (1963). Separate orders were particularly important in this case because the appeal in the support action had to be taken to us while the appeal in the equity action had to be taken to the Supreme Court. The Appellate Court Jurisdiction Act of 1970, P. L. 673, No. 223, art. I, §§ 101 et seq., 17 P.S. §§ 211.101 et seq. (Supp. 1974-75). However, the court on January 31, 1974, handed down one order in which it found that the husband and wife entered into a binding agreement on March 21, 1973, which the court had at that time approved and now entered as an order. The court did not spell out the terms of the agreement in this order but directed that the parties specifically perform the agreement and enjoined the husband from proceeding with his divorce action in New Jersey. The husband appeals from that order.

The lower court in its opinion filed April 18, 1974, recognized the separate nature of the two suits and stated that it had handed down a decree nisi in the equity case to which the husband has filed exceptions. The court below then treats the appeal as if it were from the support order only and in its opinion spells out the support order. We will treat the appeal as if it were from the support order only assuming that the husband's right of appeal is protected in the equity action. Should such right of appeal not be protected we will, upon petition by the husband, transfer the equity portion of this appeal to the Supreme Court.

The certiorari from this court was filed on March 8, 1974. Normally the court of first instance cannot proceed any further with the cause after the writ of certiorari

[ 231 Pa. Super. Page 69]

    has been served. Commonwealth ex rel. Podvasnik v. Podvasnik, 198 Pa. Superior Ct. 107, 181 A.2d 843 (1962). The lower court here handed down the details of its support order on April 18, 1974. However, no one has objected and since the order of January 31, 1974, directed that the agreement of the parties which had been placed on the record be entered as an order at that time, we will treat ...


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