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decided: April 22, 1975.


Appeal from order of Court of Common Pleas of Montgomery County, No. 73-8878, in case of Commonwealth of Pennsylvania ex rel. Stanley N. Blank v. Elaine (Blank) Rutledge.


Alvin H. Frankel, for appellant.

Emanuel A. Bertin, with him Milton O. Moss, and Pechner, Sacks, Dorfman, Rosen & Richardson, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J., In Support of Per Curiam Order. Watkins, P.j., and Jacobs, J., join in this opinion. Hoffman, J., did not participate in the consideration or decision of this case. Concurring and Dissenting Opinion by Spaeth, J. Cercone, J., joins in this opinion. Dissenting Opinion by Van der Voort, J.

Author: Per Curiam

[ 234 Pa. Super. Page 341]

The order of the court below is vacated and the action is dismissed.


Order vacated and action dismissed.

Opinion by Price, J., In Support of Per Curiam Order:

The instant appeal involves the determination of custody of a minor child, Scott. The record indicates that Scott's parents separated on November 15, 1967. Several days later, after obtaining an Alabama divorce, the mother married her present husband, John R. Rutledge. A problem, the nature of which is unclear, seems to have developed concerning the validity of the Alabama divorce and as a result, Scott's mother secured a second divorce from the New Jersey courts some four years after the first divorce.

Appellee, Scott's father, a resident of Pennsylvania, was personally served with a copy of the New Jersey divorce complaint, but did not appear at the proceeding. On November 30, 1971, the New Jersey court granted a divorce to the mother, and awarded custody of Scott to her, with "reasonable visitation rights" granted to appellee.

Mr. Blank has visited Scott every other weekend since the divorce by driving the ninety miles from his home to appellant's home in New Jersey on Friday, getting the

[ 234 Pa. Super. Page 342]

    child, returning to Pennsylvania where they spend the weekend, then driving Scott back to his home.

It was prior to one of these weekend visits that Mr. Blank filed his Habeas Corpus petition in Pennsylvania, seeking to obtain custody of Scott. The court below, following a hearing, awarded custody to Mr. Blank. This appeal by Mrs. Rutledge, Scott's mother, was brought to contest the award on the basis that the lower court had no jurisdiction to maintain the action. We agree. Appellant's contention, which is supported by the record, follows:

On Friday, July 20, 1973, Mr. Blank filed his petition for Habeas Corpus relief. The petition stated, as a jurisdictional fact, that "[t]he child is presently residing with Petitioner." In actuality, however, Scott did not enter Pennsylvania until Sunday, July 22, 1973, two days after the petition was filed. In our view, the lower court had no jurisdiction over the case on Friday, July 20, 1973, when the petition was filed, and Scott's belated "presence" in the Commonwealth on July 22, 1973, did not vest the Court of Common Pleas with jurisdiction ex post facto.

The Restatement (Second) of Conflict of Laws § 79 (1971), lists three instances in which a court may exercise jurisdiction to determine custody of the person of a child. The court may hear the case when the child is (a) domiciled in the state, or (b) present in the state, or (c) neither domiciled nor present in the state, if the controversy is between two or more persons subject to the jurisdiction of the state.

It has long been the law of this Commonwealth that the child of divorced parents assumes the residence and domicile of the parent who is awarded custody. Swigart v. Swigart, 193 Pa. Superior Ct. 174, 163 A.2d 716 (1960); Commonwealth ex rel. Camp v. Camp, 150 Pa. Superior Ct. 649, 29 A.2d 363 (1942). In the case now before us, the child has been living with his mother in

[ 234 Pa. Super. Page 343]

New Jersey, pursuant to a custody order entered in that state, and not contested by his natural father. Under these circumstances, neither (a) nor (c) are relevant to this appeal, for Scott is clearly a resident of and domiciled in New Jersey, as is his mother. Therefore, the Pennsylvania courts have no jurisdiction based on the domicile of the child, nor based on a controversy between two or more persons subject to the Commonwealth's jurisdiction. The determination of jurisdiction, therefore, depends upon a finding that Scott was present in the Commonwealth at the time the action was commenced. For as this court stated in Commonwealth ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Superior Ct. 286, 288, 50 A.2d 713, 715 (1947): "[t]he jurisdiction of the court attached on [the date] the original writ was issued."

The Habeas Corpus Act, Act of May 25, 1951, P. L. 415, § 1 (12 P.S. § 1901) et seq., sets forth the requirements which the courts of common pleas must satisfy in order to entertain a habeas corpus petition. Section 1 of the Act provides:

"Any judge of a court of common pleas within this Commonwealth shall have jurisdiction, at any time, to issue a writ of habeas corpus upon application by, or on behalf of, any person . . . alleged to be unlawfully imprisoned or detained in any penitentiary . . . or other place, (a) within the judge's judicial district . . ." 12 P.S. § 1901.

When the person "alleged to be unlawfully . . . detained" is not present "within the judge's judicial district" at the time the habeas corpus action is instituted, the courts of common pleas do not have jurisdiction. Such an interpretation is in accord with the philosophy expressed by this court in Irizarry Appeal, ...

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