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MATTER D.L.S. AND J.L.S. APPEAL K.A.S. (04/16/80)

submitted: April 16, 1980.

IN THE MATTER OF D.L.S. AND J.L.S. APPEAL OF K.A.S., NATURAL MOTHER


No. 281 April Term, 1979, Appeal from the Order in the Court of Common Peleas of Erie County, Civil Division, No. 3889-A-1978.

COUNSEL

Eugene J. Brew, Jr., Erie, for appellant.

Kevin J. Kingston, Erie, for appellee.

Price, Brosky and Montgomery, JJ.

Author: Price

[ 278 Pa. Super. Page 448]

This appeal challenges the propriety of the hearing court's order dismissing appellant's preliminary objections to a petition for custody filed by the natural father. The petition alleged that the contestants, both lifelong residents of Erie County, were married on April 20, 1974, and produced two children-D.L., born February 26, 1975, and J. L., born July 18, 1978. In February of 1978, the parents separated, and appellant, accompanied by her first-born son, moved to her parents' home in Erie, where her second son was born. Appellee continued to live and work in Erie, and on September 7, 1978, appellant returned with the children to the marital residence. She remained there until September 19, 1978, when she took the children and moved to Florida, where they now reside.

Appellee instituted this action in Pennsylvania on October 11, 1978, seeking a determination of custody of the children. Appellant's preliminary objections in response to the petition alleged that the court lacked jurisdiction to determine custody because the mother and children reside in Florida, making it the most convenient forum, and because a custody action was already pending in Florida. The hearing court received briefs by the parties, heard oral argument, and then dismissed the objections. Appellant claims that before rendering a decision on jurisdiction, the court was required by the Uniform Child Custody Jurisdiction Act, Act of June 30, 1977, P. L. 29, No. 20, § 1, 11 P.S. § 2301, et seq., to take evidence by hearing, deposition or other manner. We disagree and, consequently, affirm the order of the court of common pleas.

The hearing court's disposition of preliminary objections is governed by Pa.R.C.P. No. 1028(c) which states: "The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise." (emphasis added). Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899

[ 278 Pa. Super. Page 449]

(1974); Alumbaugh v. Wallace Business Forms, Inc., 226 Pa. Super. 511, 313 A.2d 281 (1973). When no issues of fact are raised, the court shall dispose of the preliminary objections as a matter of law on the basis of the pleadings alone. Northvue Water Co. v. Municipal Water & Sewer Authority, 7 Pa. Commw. 141, 298 A.2d 677 (1972); 4 Standard Pennsylvania Practice ch. 13, § 19. Appellant's preliminary objections raise an issue of law, jurisdiction, without raising any factual issues that would necessitate the reception of evidence. None of the dates or acts alleged in the petition that are critical to the determination of jurisdiction are disputed by appellant within her objections.

Furthermore, the petition placed sufficient information before the hearing court for it properly to determine that this matter is within its jurisdiction under the Uniform Child Custody Jurisdiction Act. That Act limits jurisdiction in the following manner:

"(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by ...


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