Appeal from the Order of the Court of Common Pleas of Montgomery County, as of No. 75-3620 Dismissing Plaintiffs' Claims for Support. No. 1906 October Term, 1975.
Joseph F. Keener, Jr., Norristown, for appellants.
No appearance entered nor brief submitted for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Van der Voort, J., files a dissenting opinion.
[ 246 Pa. Super. Page 458]
Appellant contends that the lower court erred when it sustained preliminary objections to her complaint in assumpsit for retroactive support. We do not agree and, therefore, affirm the dismissal of appellant's complaint.*fn1
On December 30, 1974, appellant filed a complaint for support for herself and her minor child in the Court of Common Pleas of Montgomery County. On February 14, 1975, the lower court ordered appellee to pay $110 per week from the effective date of the order. No appeal was taken from this order.
On May 13, 1975, appellant filed a complaint in assumpsit alleging, inter alia, that she and appellee were
[ 246 Pa. Super. Page 459]
married on June 25, 1951, that she has custody of the parties' minor child, that appellee deserted her on December 7, 1974, and that he provided only $60 per week in support from that date until the entry of a support order for $110 per week on February 14, 1975. Appellant does not allege that she expended any of her own money for the support of herself and her child during the period from December 7, 1974, to February 14, 1975. On April 2, 1975, appellee filed preliminary objections to appellant's complaint raising the bar of res judicata, a demurrer, and misjoinder.*fn2 The lower court granted appellee's preliminary objections on July 17, 1975; this appeal followed. Appellant contends that she has stated a valid cause of action under the Act of May 23, 1907, P.L. 227, § 1 et seq., as amended, 48 P.S. § 131 et seq., and that the Act authorizes retroactive support to the date of separation.
The Act of May 23, 1907, P.L. 227, as amended, provides that if any man shall separate himself from his wife without reasonable cause, and is able to support his wife and children but does not do so, she is empowered to bring an action, at law or in equity, against her husband for maintenance, in the court of common pleas of the county where the desertion occurred, or where she is domiciled.*fn3 The Act further provides that the wife may
[ 246 Pa. Super. Page 460]
proceed against any property, real or personal, of the husband necessary for the suitable maintenance of the wife and children and that the court may direct a seizure and sale, or mortgage, of all or part of the husband's estate to provide sufficient funds to discharge the husband's obligation. See Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964); Grimes v. Grimes, 403 Pa. 638, 170 A.2d 114 (1961); MacDougall v. MacDougall, 397 Pa. 340, 155 A.2d 358 (1959); Crane v. Crane, 373 Pa. 1, 95 A.2d 199 (1953); Erdner v. Erdner, 234 Pa. 500, 83 A. 420 (1912); Gessler v. Gessler, 181 Pa. Super. 353, 124 A.2d 502 (1956); Eldredge v. ...