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JAMES B. WINPENNY v. CAROL M. WINPENNY (03/05/82)

filed: March 5, 1982.

JAMES B. WINPENNY, III
v.
CAROL M. WINPENNY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division, at No. 76-3706

COUNSEL

Carol M. Winpenny, appellant, in pro. per.

Bernard Berman, Media, for appellee.

Brosky, Watkins and Montgomery, JJ.

Author: Per Curiam

[ 296 Pa. Super. Page 302]

This appeal by Carol Winpenny, who appeared before this court pro se, is from the interlocutory order of May 16, 1979, denying exceptions filed to the order of April 12, 1977 and February 5, 1979, wherein partition of real estate at Six Prince Edward Lane, Middletown Township, Delaware County, Pennsylvania, was granted and partition of any additional property was denied. This is an interlocutory appeal as of right. Pa.R.A.P. 311(a)(6).*fn1

The parties were married on September 20, 1958. On January 2, 1962, they purchased and became tenants by the entireties of real estate located at Six Prince Edward Lane, Middletown Township, Delaware County, Pennsylvania. The parties were divorced by Final Decree in Divorce A.O.M. granted to James B. Winpenny on February 19, 1975 by the Court of Common Pleas of Delaware County. We affirmed that decision. Winpenny v. Winpenny, 234 Pa. Super. 725, 342 A.2d 426 (1975), allocatur refused.

Carol Winpenny presents several questions in this appeal. First, she asserts that her husband should not be permitted to benefit from perjured testimony. Second, she argues that her request for a change of venue should have been granted.

[ 296 Pa. Super. Page 303]

Third, she challenges the propriety of the decision of the trial court as to what property was to be considered entireties property and how that property was to be divided.

James Winpenny's complaint for partition was filed pursuant to the Act of 1927, May 10, P.L. 884, as amended, 1949, May 17, P.L. 1394, § 1, 68 P.S. § 501 which provides:

Whenever any husband and wife, hereafter acquiring property as tenants by entireties shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit in the Court of Common Pleas, sitting in equity, of the county where the property is situate, against the other to have the property sold and the proceeds divided between them.

First, we note that the issue of James B. Winpenny's perjured testimony has already been resolved by the court below, Winpenny v. Winpenny, 62 Del.Co.R. 360 (1975), which we affirmed at 234 Pa. Super. 725, 342 A.2d 426 (1975), allocatur refused. Our decision therein is res judicata. Lebeau v. Lebeau, 258 Pa. Super. 519, 393 A.2d 480 (1978). Thus, we need not discuss this issue any further.

Second, Carol Winpenny asserts that the trial court erred in refusing her request for a change of venue. It is clear that venue was in Delaware County pursuant to 68 P.S. § 501. The contested property was located in Delaware County. However, Carol Winpenny raised a preliminary objection to venue in the form of a petition to change venue. Pa.R.C.P. 1509(a), 1017(b)(1), 1006(e). We have held that a decision of a trial court concerning a request for a change in venue is within the discretion of that court. Pennsylvania Power & Light v. Gulf Oil Corporation, 270 Pa. Super. 514, 411 A.2d 1203 (1979), allocatur refused, cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980).

Our General Assembly has provided some guidelines as to when a request for a change of venue should be granted in 12 P.S. § 111 (repealed and replaced by 42 Pa.C.S.A. § 5106). It provides that a trial court may grant a change of venue when:

[ 296 Pa. Super. Page 304]

§ 111. Change of venue for interest or prejudice

Changes of venue shall be made in any civil cause, in law or in equity, depending in any of the courts of this Commonwealth, ...


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