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FRANCES S. BALTER v. JAMES STONE BALTER (02/13/81)

filed: February 13, 1981.

FRANCES S. BALTER
v.
JAMES STONE BALTER, APPELLANT



No. 1512 April Term, 1978, Appeal from the Order in the Court of Common Pleas of Allegheny County, Family Division, No. M199 of 1978.

COUNSEL

John J. Dean, Pittsburgh, for appellant.

Samuel Kaufman, Pittsburgh, for appellee.

Price, Cavanaugh and Watkins, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Price

[ 284 Pa. Super. Page 353]

Appellant and appellee, former husband and wife, entered into a settlement agreement on May 8, 1975. They were subsequently divorced by Decree entered June 2, 1975. Under the terms of the agreement, appellant promised to pay his wife a sum equal to six percent of any proceeds he might receive from the sale, during his lifetime, of his forty-five percent interest in Morris Paper Company, Incorporated.

[ 284 Pa. Super. Page 354]

Appellant subsequently sold his entire interest in Morris Paper Company, Inc. for $2,718,639.60 and received a down payment of $679,659.90 and a promissory note from the buyer for $2,038,979.70, payable in sixteen quarterly installments. However, he failed to remit any of the proceeds of the sale to his wife as provided by the property settlement. On April 21, 1978, appellee commenced an action in equity in the Court of Common Pleas of Allegheny County, family division, alleging noncompliance with the separation agreement and requesting, inter alia, that appellant be ordered to remit to appellee her share of the initial down payment and any future installment payments owing under the promissory note. Appellant filed preliminary objections to the effect that appellee's prayer for specific enforcement of the settlement agreement was not cognizable in the family division of the court of common pleas because: (1) appellee had a full, complete and adequate non-statutory remedy at law; and (2) that division of the court of common pleas lacked subject matter jurisdiction to hear the matter being tried. On November 1, 1978, these objections were overruled and the court entered an order allowing appellant thirty days to respond to the original complaint. Appellant appeals from that order and asks this court to review the propriety of this matter being tried in equity and in the family division. For the reasons stated herein, the order of the lower court is affirmed.

By reason of the interlocutory nature of the lower court order, we are met at the threshold of this case by this court's ability to entertain the present appeal. This court has jurisdiction only over final orders of the courts of common pleas,*fn1 and our lack of appellate jurisdiction can, and should, be raised sua sponte since it cannot be conferred even by consent of the parties. See Commonwealth ex rel. Ransom Twp. v. Mascheska, 429 Pa. 168, 239 A.2d 386 (1968); Philadelphia v. William Penn Business Institute, 423 Pa. 490, 223 A.2d 850 (1966). "Finality" exists when the practical effect of an order is to put the defendant out of court, or

[ 284 Pa. Super. Page 355]

    otherwise terminate the litigation by prohibiting either party from proceeding with the action. Kramer v. Kramer, 260 Pa. Super. 332, 337-38, 394 A.2d 577, 580 (1978), citing Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Marino Estate, 440 Pa. 492, 269 A.2d 645 (1970). Since an order dismissing a defendant's preliminary objections does not have this effect and is therefore not final in nature, this court has no jurisdiction over appeals from such orders. This general rule is, however, subject to the exception that an order dismissing preliminary objections which raise a question involving jurisdiction is appealable. Pa.R.C.P. No. 1451(b)(7), 42 Pa.C.S.A. (corresponds to Act of March 5, 1925, P.L. 23, § 1); Pa.R.A.P. 311(a)(7). Accordingly, if none of the questions raised on this appeal involve a question of jurisdiction, the appeal must be quashed.

Appellant's first contention is that equity lacked jurisdiction because "of the existence of a full, complete and adequate non-statutory remedy at law."*fn2 The defense of an adequate remedy at law does not present any true question of jurisdiction and, therefore, an order denying such defense is not appealable. Studio Theatres Inc. v. Washington, 418 Pa. 73, 209 A.2d 802 (1965); White v. Young, 402 Pa. 61, 166 A.2d 663 (1960); Korona v. Bensalem Twp., 385 Pa. 283, 122 A.2d 688 (1956). "The test of jurisdiction is whether the court has power to enter upon the inquiry . . . ." Main Cleaners & Dyers Inc. v. Columbia Super Cleaners, 332 Pa. 71, 74, 2 A.2d 750, 751 (1938) (emphasis added). In comparison, the term "equity jurisdiction" refers only to whether it would be appropriate for a court of equity, as a matter of discretionary self-regulation, to apply its extraordinary remedies in a particular case. Hoover v. Bucks County Tax Claim Bureau, 44 Pa. Commw. 529, 532, 405 A.2d 562, 563 (1979). Thus, while an injunction issued beyond the power of the court to determine controversies of that class is void ab initio, an injunction issued contrary to the principles in equity cases is merely erroneous, and is in full legal effect until attacked by proper appeal. D. Dobbs, Law of Remedies

[ 284 Pa. Super. Page 356]

§ 2.7 (1973). It is in this sense that the term "equity jurisdiction", despite its connotations of power, is not at all jurisdictional. For this reason, the issue of the equity jurisdiction of the trial court is normally not appealable. But for appellant's second contention, we would quash this appeal. We do note, however, that equity has concurrent jurisdiction to specifically enforce support agreements in order to obviate the difficulties present in enforcing such contracts at law. Sarsfield v. Sarsfield, 251 Pa. Super. 516, 380 A.2d 899 (1977) citing Silvestri v. Silvestri, 423 Pa. 498, 502, 224 A.2d 212, 215 (1966).

Appellant's second contention is that the family division of the Court of Common Pleas of Allegheny County was an inappropriate selection of division for the commencement of this action. The trial court's order denying this objection is intimately bound up with ...


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