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GEORGE MILLER v. JOAN A. MILLER (03/19/82)

filed: March 19, 1982.

GEORGE MILLER
v.
JOAN A. MILLER, APPELLANT



No. 2320 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 79-1201-03-3.

COUNSEL

Kenneth R. Williams, Doylestown, for appellant.

Terry W. Clemons, Cornwell Heights, for appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham, Brosky, Wieand, Johnson, Montemuro, Popovich, DiSalle and Shertz, JJ. Wieand, J., files dissenting opinion in which Hester, J., joins. Popovich, J., files dissenting statement. Shertz and DiSalle, JJ., did not participate in the consideration or decision of this case.

Author: Cavanaugh

[ 296 Pa. Super. Page 520]

Defendant, Joan Miller, appeals the lower court's order denying her petition to transfer the action under the Divorce Code of 1980. For the reasons which follow we remand the case to the lower court.

Plaintiff, George Miller, filed a complaint in divorce against his wife in January, 1979. Various motions and petitions were filed by the parties thereafter. However, on July 24, 1980, before a master's hearing had been scheduled, the wife filed a petition to transfer the action under the Divorce Code of 1980. The husband filed an answer and new matter in response to the wife's petition. The lower court denied the petition to transfer and this appeal followed.

In its opinion the lower court asserts that the instant appeal is interlocutory. In Gordon v. Gordon, 293 Pa. Super. 491, 439 A.2d 683 (1981), a majority of this court held that an appeal from an order denying a petition to transfer under the Divorce Code of 1980 is immediately appealable. Hence, the instant case is properly before us.

In denying the petition to transfer the lower court held that it had wide discretion to deny the petition. Lower court opinion at 4. Moreover, the reason the court denied the petition was that the husband would suffer hardship if the petition was granted. Id. at 3. In the lower court's opinion a wife's petition to transfer should be denied:

[ 296 Pa. Super. Page 521]

    in a situation where if she had acted in good faith toward her spouse and had not persisted in delaying resolution of their marital difficulties, all proceedings would have been, and should have been, brought to conclusion by the time the new law became effective.

Id. at 5.

The lower court's reasoning was erroneous. In Gordon v. Gordon, supra, a majority of this court stated that "the range of discretion is extremely narrow, being limited to a consideration of whether granting the application [to proceed under the Divorce Code of 1980] will be consistent with the objectives described in Section 102 of the Divorce Code." Gordon v. Gordon, supra, 293 Pa. Superior Ct. 491, 439 A.2d 683. Thus the lower court's holding that it had wide discretion was erroneous. Moreover, its reliance on the hardship suffered by the husband if the petition would be granted was also erroneous; instead the ...


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