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COMMONWEALTH PENNSYLVANIA EX REL. LEAH R. SCHWARZ v. STANLEY M. SCHWARZ (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA EX REL. LEAH R. SCHWARZ
v.
STANLEY M. SCHWARZ, APPELLANT



Nos. 314 and 332 October Term, 1977, Appeal from the Orders of the Court of Common Pleas of Montgomery County, Civil Division, dated September 22, 1976 and October 5, 1976, No. 76-14092

COUNSEL

Parker H. Wilson, Norristown, for appellant.

Martin J. Cunningham, Jr., Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Jacobs, J., dissents and would affirm.

Author: Price

[ 252 Pa. Super. Page 98]

This is an appeal from the lower court's orders (1) granting custody of two minor children to their mother and (2) denying appellant-father's petition for a rehearing.

Appellee Leah R. Schwarz commenced the instant action by filing what was styled a "petition to confirm custody." A rule to show cause was issued and a hearing was held on September 22, 1976. At the beginning of the hearing, appellant's attorney was called before the court. Counsel explained that he had discussed the matter with appellant and that appellant had stated that he had never been served with process. After noting that he was not authorized to enter an appearance in the matter before the court, counsel left the courtroom.

Prior to introducing evidence on the substantive issue of custody, appellee attempted to establish the fact of service. First, she introduced an affidavit of service signed by Ronald B. Siegel, a deputy constable of Montgomery County. In the affidavit, Mr. Siegel indicated that he personally served

[ 252 Pa. Super. Page 99]

    appellant at 2455 Kensington Avenue and that, at the time of service, appellant admitted he was the party named as defendant in the petition to confirm custody. Mr. Siegel then took the stand and substantially confirmed the fact of service. At the close of the hearing, the court awarded appellee custody subject to a specific schedule of visitation.

On September 30, 1976, appellant filed a "petition to vacate order and for rehearing" in which he alleged that he was never personally served. He further averred that, if he had appeared, he would have contested his wife's right to custody and would have requested additional visitation rights. The lower court summarily dismissed this petition without requiring an answer or a hearing.

Appellant first contends that he was never served with process in the instant case, and therefore the lower court lacked the ability to issue an order which would bind him. We find this contention to be without merit.

It is a well established principle of law "that objections as to the lack of jurisdiction over the subject matter or cause of action may be taken at any stage in a judicial proceeding." Collier Twp. v. Robinson Twp., 25 Pa. Commw. 227, 230, 360 A.2d 839, 840 (1976). Questions of personal jurisdiction, venue and notice, which relate to the "method by which a court having the power to adjudicate the matter first obtained superintendence of the cause of action . . .", must be raised at the first reasonable opportunity or they are waived. Collier Twp. v. Robinson Twp., supra 25 Pa. Commw. at 230, 360 A.2d at ...


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