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COMMONWEALTH EX REL. POWELL v. POWELL (02/02/76)

decided: February 2, 1976.

COMMONWEALTH EX REL. POWELL
v.
POWELL, APPELLANT



Appeal from order of Court of Common Pleas of Montgomery County, July T., 1974, No. 2952, in case of Commonwealth ex rel. Eileen Powell v. Richard M. Powell.

COUNSEL

Edward D. Foy, Jr., and Liederbach, Eimer, Foy & Hahn, for appellant.

Neil H. Stein, and Kremer, Krimsky & Luterman, for appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Spaeth, J., concurs in the result. Dissenting Opinion by Jacobs, J. Price, J., joins in this dissenting opinion.

Author: Cercone

[ 238 Pa. Super. Page 371]

This is an appeal from an order of the Court of Common Pleas of Montgomery County directing the appellant, Richard Powell, to pay $46.00 per week for the support of his minor daughter, Christine, plus her private school tuition and medical expenses. Appellant contends, inter alia, that the Montgomery County Court of Common Pleas did not have jurisdiction over his person*fn1 and that the support proceedings should have been conducted in the Court of Common Pleas of Philadelphia County. We are constrained to agree.

The appellee, Eileen Powell, and appellant, formerly husband and wife, were divorced on March 13, 1973. Their only child, Christine, is presently fifteen years old, and lives with her mother (appellee) in Montgomery County. The appellant resides and works in Philadelphia County.

On August 22, 1974, the appellee filed a petition and complaint for the support of Christine under the Pennsylvania Civil Procedural Support Law.*fn2 The complaint for support was filed with the Court of Common Pleas of Montgomery County. An order was entered on the same date the complaint was filed directing appellant to appear before the Chief Desertion and Probation Officer of Montgomery County on September 10, 1974, to determine whether an agreed order could be achieved. On September 11, 1975, the appellant filed preliminary objections in the nature of a petition to dismiss for lack of venue. No separate hearing or disposition was held on appellant's preliminary objections.*fn3 A full support hearing was

[ 238 Pa. Super. Page 372]

    scheduled for October 28, 1974, but could not be completed due to other court matters. The court did impose, however, a temporary support order requiring appellant to pay a weekly sum of $45.00 plus tuition and medical expenses. Following a complete hearing on April 7, 1975, the lower court entered the final order of support from which the instant appeal was taken.

It is uncontradicted that appellee and her minor child are residents of Montgomery County, whereas appellant resides and works in Philadelphia County. As previously noted, appellee's complaint was filed in Montgomery County, and disposed of on the merits by the Montgomery County Court of Common Pleas -- notwithstanding appellant's objections to venue and jurisdiction. In not forwarding the appellee's petition to Philadelphia County, which was the county of proper venue in the instant case, the lower court in Montgomery County clearly erred.

The Civil Procedural Support Law specifically provides for the type of procedure to be employed where the petitioner resides in a different county than the respondent. The duties of the court in the initiating*fn4 county ...


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