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TERRENCE LEE NEY v. CONNIE MAE NEY (05/02/80)

filed: May 2, 1980.

TERRENCE LEE NEY
v.
CONNIE MAE NEY, APPELLANT



No. 660 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Schuylkill County entered March 5, 1979 at Civil Action-Law No. S-1580, November Term, 1977.

COUNSEL

W. J. Krencewicz, Shenandoah, for appellant.

Joseph A. Zane, Schuylkill Haven, for appellee.

Hester, Montgomery and Cirillo, JJ.*fn*

Author: Per Curiam

[ 277 Pa. Super. Page 572]

This is an appeal from an order dividing personal property owned by the litigants by entireties. The order was made in a divorce proceeding.

The divorce proceeding was instituted by the husband and service was properly made on the defendant-wife. During the course of the proceedings, plaintiff secured a rule to show cause why the entireties property of the parties should not be partitioned. Notice of this rule was served on the wife's attorney, and a responsive answer to the petition and rule was filed by the wife. A hearing was thereafter held at which it was stipulated that the issue would be limited to jointly owned personal property and not realty. Following the hearing, an order was made dividing the personal property, from which order this appeal was taken by the defendant-wife.

Two questions are raised by the appeal as noted in appellant's brief viz

(1) In an action for Divorce A.V.M., does a court have jurisdiction or power to entertain a proceeding for partition of entireties property, where such proceeding is initiated by Petition and Rule to Show Cause and where the Petition and Rule have not been served upon the defendant?

(2) May a final order directing partition of entireties property be entered without first entering a Decree Nisi and without affording an opportunity to file exceptions to the adjudication?

[ 277 Pa. Super. Page 573]

Appellant's basic argument is that the lower court did not have jurisdiction to order partition because of plaintiff's failure to comply with Pa.R.C.P. 1127(b) and Pa.R.C.P. 1124(e) (erroneously stated (c) in appellant's brief) Pa.R.C.P. 1127 states that in divorce proceedings

(b) The plaintiff may join in the complaint in separate counts any other matters which may by Act of Assembly be joined with an action of divorce or annulment, or, if they have not been so joined, the plaintiff may, as of course, amend the complaint to include such other matters, or may file to the same term and ...


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