No. 2602 October Term 1978, Appeal from the Order of the Court of Common Pleas of Phila. County, Family Div., at No. 4289 September Term 1978.
Elwood S. Levy, Philadelphia, for appellant.
Albert Momjian, Philadelphia, for appellee.
Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., concurs in the result. Hester, J., files a dissenting opinion.
[ 280 Pa. Super. Page 68]
This appeal arises from an order granting appellee's petition for a preliminary injunction.
On September 25, 1978, appellee filed a complaint in equity alleging that by order of an Indiana court she had been given custody of her two children; that her ex-husband had abducted her children from her custody; and that appellant knew her ex-husband's whereabouts and was aiding him in fleeing from legal authority. The complaint requested, among other things, that appellant be compelled to disclose to appellee her ex-husband's location. Also on September 25, appellee filed an ex parte petition for a preliminary injunction, which the lower court granted the same day. The lower court's order stated:
Defendant, Ronald Bluestein, Esquire, is hereby restrained and enjoined from informing . . . [appellee's husband], his agents, servants or employees, in any manner whatsoever, whether directly or indirectly, whether by himself or through his agents, servants or employees, as to the institution of these proceedings or the pendency thereof.
[ 280 Pa. Super. Page 69]
On September 28, the lower court ordered that the preliminary injunction continue in effect until a hearing could be held on October 6, and also ordered, for the first time, that appellee file bond in the amount of $100, which appellee did the same day. On October 6, a hearing limited to legal argument was held. The hearing was ultimately continued until October 10, the lower court ordering the preliminary injunction to continue in effect meanwhile. However, no hearing was held on the 10th, and on October 11, the court, with the consent of the parties, rescheduled the hearing for October 31; the court also ordered the preliminary injunction to continue in effect.*fn1 On October 12, appellant filed preliminary objections to the complaint, and on October 23, this appeal was filed.*fn2
Does the lower court have jurisdiction to entertain this action?
Appellant argues that the lower court lacks jurisdiction to entertain appellee's action because the sole objective of the action is to obtain discovery from appellant, and no other action is at present pending in the Pennsylvania courts to which the discovery could be relevant. See Cole v. Wells, 406 Pa. 81, 177 A.2d 77 (1962); see also T. C. R. Realty Co. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Einhorn v. Phila. Electric Co., 410 Pa. 630, 190 A.2d 569 (1963).
There can be no doubt that appellee had the right to invoke the Uniform Child Custody Jurisdiction Act, 11 P.S. §§ 2301 et seq. (1979-80 Supp.), to enforce the order of the
[ 280 Pa. Super. Page 70]
Indiana Court giving her custody of her two children. Section 2314 of the Act provides:
The courts of this State shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this act or which was made under factual circumstances meeting the jurisdictional standards of the act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this act.
Section 2316(a) provides:
A certified copy of a custody decree of another state whose decrees are recognized under section 14 may be filed in the office of the prothonotary of any court of common pleas of this State. The prothonotary shall treat the decree in the same manner as a custody decree of the court of common pleas of this State. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this State.
Section 2321(a) provides:
Upon request of the court of another state the courts of this State which are competent to hear custody matters may order a person in this State to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in this State or may order social studies to be made for use in a custody proceeding in another state. A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced, any psychological studies and any social studies prepared shall be forwarded to the requesting court.
Appellee's counsel, for reasons best known to himself, apparently has not invoked these provisions. There is no evidence of record that a certified copy of the Indiana custody decree has been filed with the prothonotary of the lower court pursuant to section 2316(a), nor is there evidence that the Indiana court has requested the Pennsylvania courts to conduct discovery in connection with custody proceedings
[ 280 Pa. Super. Page 71]
before it. Instead, counsel has filed the present complaint in equity. It is therefore arguable that the lower court lacked jurisdiction either for the reason appellant assigns, i. e., that appellee's action was an improper bill of discovery, or for the reason that appellee has failed to exhaust her statutory remedies. See generally 5 Goodrich-Amram § 1509(b):1. Since the existence of an exclusive statutory remedy is normally a non-waivable objection, id., we should consider both issues.
It is difficult to believe that the drafters of the Uniform Child Custody Jurisdiction Act intended the act to be the exclusive remedy for a parent who is trying to regain the custody of children who have been abducted by the other parent. Section 2302(a) of the act provides:
The general purposes of this act are to:
(5) deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(7) facilitate the enforcement of custody decrees of other states:
(8) promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child . . . .
Subsection (b) of the same provision states:
This act shall be construed to promote the general purposes stated in this section.*fn3
[ 280 Pa. Super. Page 72]
The act does not state that it is to be the exclusive remedy to regain custody of abducted children, nor does there appear to be any public policy that would justify such a limitation. In other cases courts have recognized that in creating a statutory remedy the Legislature does not always intend to displace traditional equitable remedies, but sometimes intends to make the statutory remedy permissive or alternative only. E. g., DeLuca v. Buckeye Coal Co., 463 Pa. 513, 345 A.2d 637 (1975). Here, the Legislature must have intended the remedies provided by the act to be alternative, and thus cumulative, to the traditional equitable remedies, ...