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FAYE S. OLIVIERI v. HERBERT L. OLIVIERI (09/27/76)

decided: September 27, 1976.

FAYE S. OLIVIERI,
v.
HERBERT L. OLIVIERI, APPELLANT



COUNSEL

Charles H. Greenberg, Philadelphia, for appellant.

Francis J. Morrissey, Jr., Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Jacobs, J., joins.

Author: Hoffman

[ 242 Pa. Super. Page 459]

Appellant contends that the lower court should not have stricken his counterclaim for partition of real estate filed in response to appellee's complaint for specific performance of a post-nuptial property settlement agreement.

Appellant and appellee were married on August 11, 1957, and have three minor children. Prior to their divorce on October 4, 1971, the parties entered into a property settlement agreement dated September 21, 1971. The agreement established a spendthrift trust over the parties' home at 752 George's Road, Philadelphia, for the exclusive use of appellee and the children until the appellee's death or remarriage or until the parties jointly agreed to sell the property. The agreement provided that appellee should retain all of the jointly owned personal

[ 242 Pa. Super. Page 460]

    property. It provided further that appellant would pay: $100 per week for the support of the children during their minority; $50 per week to appellee until her death or remarriage, until the emancipation of the minor children when appellant's payments would increase to $100 per week; mortgage payments, real estate taxes, and water and sewer bills; utility bills up to a maximum of $100; tuition for private school, and college for the three children; the cost of children's camp and synagogue; the cost of health insurance for the appellee and the children; and the cost of a $100,000 life insurance policy with the appellee and the children named as beneficiaries. The parties agreed to negotiate the reduction of support payments to appellee in the event that she were to secure employment, and that all amendments or modifications would have to be made in writing and signed by both parties.

Appellee filed a complaint in equity on July 2, 1975, seeking specific performance of the property settlement agreement, and for judgment in the amount of $21,408.05, which was allegedly in arrears.

Appellant filed an answer with new matter and counterclaim on July 31, 1975. He admitted signing the property agreement attached to appellee's complaint but denied any breach of the agreement. In new matter, appellant alleged that he signed the property settlement agreement because appellee fraudulently misrepresented that she was not gainfully employed. Additionally, appellant alleged that appellee had continued to conceal her true earnings and refused to negotiate a reduction in her support payments as required by the property settlement agreement, that appellee's salary was currently $17,500 per year, that various understandings had superseded the provisions of the property settlement agreement, that he is entitled to credit for payments made on behalf of the children which were not required by the agreement, that appellee had refused to cooperate in allowing appellant

[ 242 Pa. Super. Page 461]

    to claim the children as dependents and to take an alimony deduction for the payments to his wife, that appellee had neglected the children, that the appellee had attempted to alienate the children from appellant, and that changed circumstances of appellant's remarriage and fatherhood had occurred since the signing of the agreement. Appellant asked the court to declare the agreement void because of appellant's fraud, to award custody of the children to appellant, and to partition the real estate currently occupied by appellee and the children.

Appellee filed preliminary objections to appellant's answer, new matter, and counterclaim. Appellee also demanded more specific pleadings as to certain facts contained in appellant's answer and new matter, and objected to joinder of appellant's counterclaims for partition and custody. The court below granted appellee's motions for more specific pleadings and struck appellant's counterclaim insofar as it prayed for custody*fn1 and partition. The court struck appellant's counterclaim for partition because "[t]he prayer for partition in the instant pleading was an irrelevancy, unsupported by averments which would constitute a cause of action. It was impertinent and properly the subject of a motion to strike." (Footnote omitted). Alternatively, the court reasoned that, assuming arguendo that the counterclaim for partition was properly pleaded, it could not be joined with plaintiff's cause of action because it did not arise from the same transaction and because it was barred by the Act of May 10, 1927.*fn2 See Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973). Appellant contends that the court below should not have stricken

[ 242 Pa. Super. Page 462]

    his counterclaim for partition, but, instead, should have granted him leave to amend.*fn3

We must determine whether appellant's pleadings alleged sufficient facts to withstand a motion to strike his prayer for partition of the real estate owned by the entireties. Secondly, we must determine whether appellant may counterclaim under the Act of May 10, 1927, for partition to a complaint for specific performance of a property settlement agreement.

It is well-settled that a counterclaim must meet the same formal requirements as a complaint; it must contain in precise and summary form the material facts upon which the defendant relies to recover his counterclaim from the plaintiff; and must satisfy all the other requirements relating to a complaint, such as paragraphing and numbering. 10 Anderson, Pennsylvania Civil Practice § 1510 (1954); 4 Standard Pennsylvania Practice §§ 41-44 (1955). "[A]n allegation of damages or a prayer for damages which are not legally recoverable in the cause of action pleaded is impertinent matter in the sense that it is irrelevant to that cause of action. Thus, a preliminary objection in the nature of a motion to strike off impertinent matter would appear to be the appropriate means through which to challenge an erroneous prayer for damages." Hudock v. Donegal Mutual Insurance Co., supra, 438 Pa. at 272-3, n. 2, 264 A.2d at

[ 242 Pa. Super. Page 463671]

n. 2. Likewise, in equity a prayer for relief totally unsupported by factual averments in support of a litigant's cause of action may be stricken for lack of conformity to law or as ...


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