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COMMONWEALTH PENNSYLVANIA EX REL. JOHN OCTAVIANO v. LINDA DOMBROWSKI. APPEAL JOHN OCTAVIANO (09/04/81)

filed: September 4, 1981.

COMMONWEALTH OF PENNSYLVANIA EX REL. JOHN OCTAVIANO
v.
LINDA DOMBROWSKI. APPEAL OF JOHN OCTAVIANO



No. 1895 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, D.R. 85891. Domestic Relations Branch.

COUNSEL

Lynne Z. Gold-Bikin, Philadelphia, for appellant.

Linda Dobrowski, did not file a brief on behalf of herself (in pro. per.)

Wickersham, McEwen and Wieand, JJ.

Author: Wieand

[ 290 Pa. Super. Page 324]

In this custody proceeding, the trial court concluded sua sponte that Pennsylvania was an inconvenient forum and declined to exercise its jurisdiction. Therefore, it dismissed the action. We agree with appellant that this was error.

The appellant, John Octaviano, is the biological father of a child, Nicole, born out of wedlock to the appellee, Linda Dombrowski, on November 3, 1979. The parties, who lived together in Philadelphia for approximately a year, had separated in July, 1979, prior to the birth of the child. After the child was born, appellee sought to place the child for adoption, but appellant refused to consent to any adoption. Over appellant's objection the child was then placed with Catholic Social Services. Appellant, however, made repeated efforts to have the child placed in his care. On February 11, 1980, appellee removed the child from the agency and took her to live with appellee in the apartment which she leased at 900 Asbury Terrace, Philadelphia. Appellant came there regularly to visit his daughter. As a result of an argument between the parties on the evening of April 27, 1980, Nicole was taken to and spent the night at the home of appellant's parents. On the following day, appellee broke into the home, pushed appellant's mother down, and removed the child to the home of appellee's parents in Rochester, New York.

Meanwhile, on April 23, 1980, appellant had commenced an action to obtain custody of Nicole and had obtained an ex parte injunctive order restraining appellee from removing Nicole from Pennsylvania. Neither the petition nor the

[ 290 Pa. Super. Page 325]

    restraining order had been served prior to the time when appellee went to New York. A copy of the petition and notice of hearing were subsequently served on appellee by certified mail. Upon the advice of New York counsel, appellee did not appear at the hearing; and, therefore, it proceeded without her. After a hearing on the merits had been concluded, the trial court entered an order declining to decide the custody issue on the grounds that Pennsylvania was an inconvenient forum. From that order, the present appeal was filed.

Jurisdiction to hear and decide the custody issue clearly existed in the courts of Pennsylvania under the provisions of the Uniform Child Custody Jurisdiction Act, enacted in Pennsylvania as the Act of June 30, 1977, P.L. 29, No. 20, 11 P.S. ยง 2301 et seq.*fn1 Section four thereof*fn2 provided:

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


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