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JUDITH E. HERTZ A/K/A JUDY E. HERTZ v. JACK F. HERTZ (07/23/82)

filed: July 23, 1982.

JUDITH E. HERTZ A/K/A JUDY E. HERTZ, APPELLANT,
v.
JACK F. HERTZ



No. 83 Harrisburg, 1981, Appeal from the Order of the Court of Common Please, Civil Action - Law, Adams County, No. 80-S-470.

COUNSEL

Larry W. Wolf, Hanover, for appellant.

David Kostka James, Gettysburg, for appellee.

Wickersham, Wieand and Montemuro, JJ. Wickersham, J., files a dissenting opinion.

Author: Montemuro

[ 302 Pa. Super. Page 260]

Appellant, Judith E. Hertz, brought an action for a declaratory judgment under § 206 of the Divorce Code*fn1 to adjudicate the validity of her alleged common law marriage with the appellee, Jack F. Hertz. On November 10, 1980 and on December 10, 1980, the lower court heard testimony on the matter and filed an opinion and order on March 2, 1981 declaring that the common law marriage was invalid. No exceptions were filed. On March 27, 1981 the appellant filed this appeal from the lower court's order.

Appellant contends on this appeal that the clear weight of the evidence was contrary to the declaratory order and that the lower court abused its discretion in finding that the parties did not form a common law marriage. We cannot, however, review appellant's contentions where there has

[ 302 Pa. Super. Page 261]

    been noncompliance with the appropriate procedural rules applicable in actions for declaratory judgment. Accordingly, the appeal must be quashed.

Pursuant to Pa.R.C.P. 1601(a), the practice and procedure in actions for declaratory judgment must follow "as nearly as may be, the rules governing the Action in Equity," This requires the lower court to enter an adjudication in accordance with Pa.R.C.P. 1517, the filing of exceptions thereto and subsequent disposition by a court en banc under Pa.R.C.P. 1518, and the entering of a final decree, whether or not exceptions have been filed, as provided by Pa.R.C.P. 1519.

Appellant's statement of jurisdiction asserts that the appeal is properly before this court pursuant to 42 Pa.C.S.A. § 7532. This Section, in pertinent part, provides as follows:

The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force of a final judgment or decree. (Emphasis added)

Appellant interprets this section to mean that the lower court's order is a final judgment from which an appeal can be taken, without complying with the post-trial procedural rules set forth in Pa.R.C.P. ...


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