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ELIZABETH S. EXNER v. GEORGE V. EXNER (07/27/79)

decided: July 27, 1979.

ELIZABETH S. EXNER, APPELLANT,
v.
GEORGE V. EXNER



No. 1317 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Bucks County, Pennsylvania No. 74-2723-02-6 and No. 74-4267-07-1.

COUNSEL

Janet Duffy Carson, Philadelphia, for appellant.

J. Eric Atherholt, Doylestown, for appellee.

Van der Voort, Wieand and Lipez, JJ.

Author: Wieand

[ 268 Pa. Super. Page 255]

In this assumpsit action for breach of a separation agreement, the Court of Common Pleas of Bucks County granted husband-appellee's motion for summary judgment on the ground that a prior judgment in equity in favor of appellant was res judicata and barred the action. We affirm.

[ 268 Pa. Super. Page 256]

Prior to divorce, the parties to this action entered into a separation agreement on April 17, 1973, which provided in pertinent part:

"Husband agrees to pay to Wife the sum of $200.00 per week as alimony. Each year this figure shall be increased by $10.00 per week beginning with the first payment in January of that year."

On April 15, 1974, appellant brought an assumpsit action alleging that her former husband had failed to pay monies due under this agreement for the period from January 14, 1974, through January 28, 1974. During the pendency of this action, appellant commenced a second assumpsit action on May 8, 1974, in which she alleged that after February 15, 1974, husband-appellee had further breached the separation agreement by tendering only partial payments. These actions were consolidated by stipulation of the parties. On January 10, 1975, while the consolidated assumpsit actions were pending, wife-appellant brought an action in equity in which she alleged continuing defaults and requested specific performance of the separation agreement. On November 10, 1975, the court granted wife-appellant's motion for summary judgment in the equity action and entered the following decree:

"AND NOW, this 10th day of November, A.D., 1975, upon consideration of the Plaintiff's Motion for Summary Judgment and Memorandum in support thereof and Defendant's Memorandum in opposition thereto, it is hereby ORDERED and ADJUDGED and DECREED that (a) Defendant, George V. Exner, shall specifically perform the Agreement entered into by Plaintiff, Elizabeth S. Exner, and Defendant, George V. Exner, as of April 17, 1973, by paying to the Plaintiff, Elizabeth S. Exner, all amounts of money due and owing under the Agreement as they fall due; (b) Defendant, George V. Exner, is hereby permanently enjoined and restrained from failing or refusing to pay to Plaintiff, Elizabeth S. Exner, all amounts of money due and owing under the Agreement as they fall due; and (c) Defendant, George V. Exner, shall specifically

[ 268 Pa. Super. Page 257]

    perform the aforesaid Agreement, paying forthwith to Plaintiff, Elizabeth S. Exner, all arrearages which have accrued under the Agreement to date of this Decree, together with interest on ...


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