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COMMONWEALTH PENNSYLVANIA EX REL. ANNA MAE ONDRUSEK ZIMMERMAN v. RAYMOND A. ZIMMERMAN (05/25/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: May 25, 1979.

COMMONWEALTH OF PENNSYLVANIA EX REL. ANNA MAE ONDRUSEK ZIMMERMAN
v.
RAYMOND A. ZIMMERMAN, APPELLANT

No. 1485 October Term, 1978, Appeal from Order of the Court of Common Pleas of Lebanon County, Criminal Division, entered March 31, 1978 at No. 359, 1977.

COUNSEL

Robert Sullivan, Jr., Lebanon, for appellant.

Robert C. Rowe, Lebanon, for appellee.

Van der Voort, Hester and Wieand, JJ.

Author: Hester

[ 266 Pa. Super. Page 436]

Presently before the court is appellant's appeal from the order of the lower court dated March 31, 1978, wherein it was found that appellee and appellant were married and appellant therefore owed a duty of support to the appellee.*fn1

This action was initiated by appellee's filing of a complaint for support for herself in the Court of Common Pleas, Criminal Division, on September 23, 1977. Appellee represented in her complaint "That the (Appellee) and (Appellant) were married on Common Law Marriage lived together for 9 years (August, 1968)" (sic) (T-1a).

On October 18, 1977, the lower court convened a hearing and took testimony on the issue of whether appellee is the common law wife of the appellant herein; for if she is, she would be entitled to support.

On March 31, 1978, the lower court issued its order and accompanying opinion wherein it found "That a common law

[ 266 Pa. Super. Page 437]

    marriage is supported by the record and, therefore, (appellant) owes a duty to support (appellee)." (T-41a).

On April 28, 1978, the instant appeal was taken from said order, invoking the jurisdiction of this court pursuant to the Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. III, § 302, 17 P.S. § 211.302.

Appellee has not seen fit to file a petition to quash the instant appeal.

Section 211.302 of said Act provides:

§ 211.302 Appeals from courts of common pleas.

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any section of this act within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

We find that the lower court order dated March 31, 1978 is not a final order as defined in the aforementioned Act; but rather is interlocutory in nature and hence non-appealable. We shall therefore quash the instant appeal sua sponte.

Appeal quashed and this matter is hereby remanded to the lower court for the purpose of determining the amount of support to which appellee is entitled.


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