No. 1 May Term, 1979, Appeal from the Order of the Superior Court of October 30, 1978, at 157 March Term, 1978, Quashing Appellant's appeal from Order of the Court of Common Pleas of York County entered July 12, 1978, 77-S-1961
Gerald E. Ruth, York, for appellant.
Samuel M. Learned, Jr., York, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., concurs in the result.
The issue before us is whether an appeal filed in the Superior Court by appellant, Amos Howard Yeaple, a resident of Arizona, was properly quashed by the Superior Court because it was untimely filed. Appellant contends in this Court that his appeal was timely filed and should be reinstated. We agree and therefore remand the matter to the Superior Court for a consideration of the merits of the appellant's appeal.
Appellee, Margaret S. Yeaple, commenced a divorce action in York County against appellant, a resident of Arizona. Service was effected upon appellant in Arizona by registered mail. Approximately six months later, appellee filed a petition for alimony pendente lite and counsel fees. A rule to show cause issued, but was not served upon appellant. Service was attempted but the return indicated that the petition and rule were unclaimed by appellant in Arizona. Appellee did serve a copy of the petition and rule upon the attorney representing appellant in the divorce action.
Appellant's attorney filed an answer to the petition. That answer was not verified by appellant. Pa.R.Civ.P. 1024. It was, however, verified by appellant's attorney, who stated that appellant was outside the court's jurisdiction. Pa.R.Civ.P. 1024(c). The attorney verified the answer upon information received. Pa.R.Civ.P. 1024(c). At a hearing held on the petition on April 5, 1978, appellant's attorney appeared and challenged the court's jurisdiction over the matter of alimony and counsel fees contending that the trial court did not have jurisdiction over the person of the appellant as to those matters. At that hearing appellant's attorney also
addressed himself to the merits of the petition contending that appellant had no obligation to pay because appellee's income was equal to appellant's income. The trial court ruled that it had jurisdiction over the person because the petition for alimony and counsel fees was ancillary to the divorce action in which a complaint had been served upon appellant in Arizona. The trial court deferred ruling on the merits of the petition pending further discovery concerning appellant's finances. On May 22, 1978, appellant's attorney filed a written motion to dismiss the petition for alimony and counsel fees again raising the issue that the trial court did not have jurisdiction over the person of the appellant. On July 12, 1978, the trial court denied the motion to dismiss stating that his earlier ruling regarding jurisdiction was correct. Within thirty days of the trial court's order of July 12, 1978, appellant filed an appeal in the Superior Court. An adverse ruling involving jurisdiction over the person, although interlocutory, is an appealable order. Pa.R.A.P. 311; Act of 1925, March 5, 1925, P.L. 23 § 1 et seq., 12 P.S. § 672 et seq., as amended.
In the Superior Court, the appellee moved to quash the appeal contending that it was not a timely appeal. According to appellee, in its motion before the Superior Court, appellant should have appealed within thirty days of the court's first ruling on jurisdiction over the person which was made on April 5, 1978, more than thirty days before appellant filed his appeal in the Superior Court. The Superior Court granted appellee's motion to quash. Appellant then filed a petition for allowance of appeal in this Court which was granted.
Appellant contends that his appeal in the Superior Court which was filed within thirty days of the trial court's order denying his motion to dismiss for lack of jurisdiction over the person was a timely appeal and the ...