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EVELYN ORESSEY v. EMIL ORESSEY (06/20/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: June 20, 1980.

EVELYN ORESSEY
v.
EMIL ORESSEY, APPELLANT

No. 887 Oct. Term, 1979, No. 1423 Oct. Term, 1979, CONSOLIDATED APPEAL FROM THE ORDERS ENTERED APRIL 9, 1979, AND JUNE 7, 1979, OF THE COURT OF COMMON PLEAS, FAMILY COURT DIVISION, LACKAWANNA COUNTY, NO. 727 OF 1979

COUNSEL

Roger Mattes, Scranton, for appellant.

Evelyn Oressey, for appellee, in pro. per., will not file a brief.

Hester, Montgomery and Cirillo, JJ.*fn*

Author: Cirillo

[ 278 Pa. Super. Page 72]

This is a support proceeding involving appeals from two orders of the Court below. On April 9, 1979, the Court

[ 278 Pa. Super. Page 73]

    below filed a certification and order finding that the appellant was under a duty of support to his wife and minor children. The order was made ex parte without notice to the appellant and with no opportunity to be heard. The order was appealed to this Court by the appellant. Thereafter, the Court below held a hearing to which the appellant objected. At the conclusion of the hearing, the Court entered an order of support for the two minor children, and that order was appealed to this Court.

The first order must be vacated for failure to follow procedural due process. The second order must be vacated because the Court below was without power or authority to proceed after the first order was appealed to this Court. The second order was, therefore, improper and a nullity: Driscoll v. Plymouth Twp., 13 Pa. Commw. 404, 320 A.2d 444 (1974).


*fn* Judge VINCENT A. CIRILLO, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.


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