No. 2024 Philadelphia, 1981, Appeal from the Order in the Court of Common Pleas, Trial Division, of Philadelphia County at No. 2418 November Term 1980.
Michael R. Needle, Philadelphia, for appellant.
George W. Berkelback, Philadelphia, for appellee.
Wickersham, Rowley and McEwen, JJ.
[ 299 Pa. Super. Page 319]
On September 12, 1955 Edward and Joan were married and later bought a home at 12427 Tyrone Road, Philadelphia, Pennsylvania where they raised their children. In
[ 299 Pa. Super. Page 320]
March of 1975 the couple separated and have not lived together as husband and wife since. Edward Taddei, appellee herein, moved to New Jersey and began divorce proceedings there. In his complaint in divorce Edward Taddei asked for a dissolution of his marriage and an equitable distribution of property acquired during the marriage. The New Jersey court granted the divorce on May 29, 1980, but made no property distribution. In November of 1980 Joan M. Taddei requested the New Jersey court to reopen the final judgment of divorce so that the marital property could be distributed. Dominick J. Ferrelli, a judge of the Superior Court of New Jersey, ruled that the New Jersey courts could not effect an equitable distribution because Joan and Edward never lived as husband and wife in New Jersey; the property involved was situated in Pennsylvania, and Mrs. Taddei never submitted to New Jersey jurisdiction by filing an answer nor an appearance.
Edward Taddei filed a complaint in equity in the Family Division of the Philadelphia Court of Common Pleas on November 17, 1980, seeking a court-ordered partition of the property at 12427 Tyrone Road; the appointment of a master to sell the Tyrone Road property; an accounting from his ex-wife for the reasonable rental value of the property since the divorce; an accounting for all assets previously held by the parties as tenants by the entireties; and finally that waste be charged to Joan and that the proceeds of sale be divided equally between them after waste was so charged. Mrs. Taddei filed an answer to Mr. Taddei's complaint and admitted that no property distribution had taken place. In her new matter she alleged that she was sick, unable to work and that a partition of the Tyrone Road property would burden her finances and destroy her failing health. By a first defense she argued that Edward's desertion with their savings should estop him from requesting partition; by a second defense she argued that partition would be inequitable. Joan Taddei also counterclaimed seeking sole ownership of the home at Tyrone Road and an equitable distribution of other marital property; an
[ 299 Pa. Super. Page 321]
award of support and back support; alimony, and an injunction restraining Mr. Taddei from disposing of or hiding property in his possession. As she conceded below these claims were based upon the Divorce Code enacted in 1980. 23 P.S. § 101 et seq. Record at 44.
Mr. Taddei then filed a preliminary objection in the nature of a motion to strike, asserting that since the parties were validly divorced partition was the exclusive remedy available with respect to the real estate. Accordingly, he argued that most of Mrs. Taddei's pleading was irrelevant based as it was on the Divorce Code supra. The Honorable John R. Meade sustained Edward Taddei's objections and dismissed Joan Taddei's counterclaim. Judge Meade viewed the issue in the case as whether the Divorce Code of 1980 applied retroactively and decided that the new code did not afford relief to divorced persons. He therefore dismissed Joan Taddei's counterclaim with prejudice. This appeal followed.*fn1
Joan Taddei's first appellate ...