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

SUPERIOR COURT OF PENNSYLVANIA


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. 1517 -- 1519. We do not agree with this construction.

Section 7532 merely determines that the ultimate "force and effect" of a declaratory judgment shall be no different than any other final judgment or decree. This, however, does not mean that procedural rules have been abrogated in favor of making a declaratory judgment immediately appealable. Appellant's construction would not only be inconsistent with Pa.R.C.P. 1601(a) which requires "as nearly as may be" the following of the rules in equity in actions for declaratory judgment, but would generally contradict the power vested in the Supreme Court of Pennsylvania "to prescribe the general rules governing the practice, procedure and the conduct of all courts . . . [and] judgments or decrees of any court." Pa.Const. art. 5, § 10. Although the Supreme Court has no authority to affect the power of the legislature "to determine the jurisdiction of any court,"

[ 302 Pa. Super. Page 262]

    closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court's conclusions of law and (4) a decree nisi.

(b) The adjudication may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing.

Had the lower court clearly made "an adjudication" consisting of the various parts set forth in Rule 1517 including a decree nisi, then counsel for appellant Judith E. Hertz would have been on notice to and required to file exceptions under Rule 1518, Pa.R.C.P. which provides as follows:

Within ten (10) days after notice of the filing of the adjudication exceptions may be filed by any party to rulings on objections to evidence, to statements or finding of fact, to conclusions of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been submitted by leave of court to a failure or refusal to find any matter of fact or substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters.

Thereafter a final decree under Rule 1519 would have been entered in due course. This decree would have been entered on the judgment index of the law side of the court pursuant to Rule 1521 of the Pennsylvania Rules of Civil Procedure. After entry of judgment the present appeal could have been properly taken.

Since I find that the lower court did not specifically and clearly follow the mandate of Rule 1517, it is in my judgment too harsh to quash the present appeal and leave the appellant in limbo, or worse, out of court entirely.

[ 302 Pa. Super. Page 264]

Accordingly, I would remand with directions consistent with this dissenting opinion.


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