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NANCY B. KRAMER v. HARVEY KRAMER AND BARBARA KRAMER. APPEAL HARVEY KRAMER (11/22/78)

decided: November 22, 1978.

NANCY B. KRAMER
v.
HARVEY KRAMER AND BARBARA KRAMER. APPEAL OF HARVEY KRAMER



No. 1481 October Term, 1977, Appeal from the Order entered April 6, 1977, in the Court of Common Pleas of Montgomery County, Civil Action - Equity Division, at No. 76 -15360.

COUNSEL

Jerome M. Dubyn, Philadelphia, for appellant.

Jonathan H. DeYoung, King of Prussia, for appellee, Nancy B. Kramer.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 260 Pa. Super. Page 336]

Appellant and appellee, former husband and wife, entered into a support agreement on or about July 1, 1975. Under the terms of the agreement, appellee conveyed her one-half interest in the former marital domicile located in Montgomery County to appellant, in return for his promise to make the agreed upon payments under the support contract. The agreement further provided that if appellant defaulted in making the payments, he would execute a judgment note in the amount of $70,033.33, with interest, to be held in escrow as security for the future payments owing under the agreement.

Appellant made the required monthly payments until March 1, 1976, but has failed to make any payments since that date. On September 23, 1976, appellee filed an equity action in the Court of Common Pleas of Montgomery County requesting, inter alia, that appellant be ordered to reconvey to appellee her former interest in the marital domicile and that the court order a partition of the real estate, or in the alternative, that appellant be ordered to execute a note in the amount of $58,333.33, representing the $70,033.33 specified in the agreement reduced by the sums already paid by appellant. Barbara Kramer, appellant's present wife, was included as a defendant in the original complaint. On May 5, 1977, appellant filed preliminary objections demurring to the complaint and requesting that it be dismissed, pleading, inter alia, the pendency of a prior action and alleging that appellee had a full, complete and adequate non-statutory remedy at law. The former objection was based upon an action that had previously been filed by appellee in the Family Division of the Court of Common Pleas of Philadelphia County, in which appellee sought an order regarding support and child custody. This earlier action had been filed prior to the signing of the support agreement on July 1,

[ 260 Pa. Super. Page 3371975]

. Barbara Kramer also demurred to the action, alleging that she had not been a party to the original support agreement and could not be bound thereby.

On April 6, 1977, the lower court sustained the demurrer of Barbara Kramer, ruling that she could not be bound by the support agreement; the action as to her has apparently been terminated and is not before this court on appeal. The judge denied appellant's preliminary objections and ruled as follows: (1) that the prior action in Philadelphia County was not the same as that in Montgomery County and thus did not preclude the latter action; and (2) that appellee does not have a full remedy at law in the form of a judgment for $58,333.33, since the complaint prayed for an alternate remedy of partition of the marital domicile, a remedy that lies exclusively within the venue of the equity division of the Court of Common Pleas of Montgomery County under Pa.R.C.P. No. 1552.

From that order, appellant brings this appeal alleging that the lower court erred in the following respects: (1) appellant's demurrer should have been granted; (2) the action should have been transferred to the law side of the court since the relief sought by appellee in the form of a judgment for $58,333.33 is a full, complete and adequate non-statutory remedy at law; and (3) the complaint should have been dismissed since there was a prior pending action in the Family Division of the Court of Common Pleas of Philadelphia County relating to an analogous claim. We find appellant's contentions to be without merit and affirm the order of the lower court.

First, under the Appellate Court Jurisdiction Act of 1970,*fn1 this court only has jurisdiction over "final orders" of the courts of common pleas.*fn2 Finality of an order exists when the practical effect is to put the defendant out of ...


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