No. 852 April Term, 1979, Appeal from Judgment of the Court of Common Pleas, Equity Division of Washington County, 1979, No. 7420, book 43, page 255.
Robert N. Clarke, Washington, for appellant.
Roger G. Rulong, Jr., Washington, for appellee.
Price, Brosky and Montgomery, JJ.
[ 306 Pa. Super. Page 143]
This is an appeal from a summary judgment entered in an equity action on grounds of collateral estoppel by reason of a prior criminal support proceeding. We reverse and remand.
The appellant, John S. Long and appellee, Joyce M. Long were married on July 6, 1963 and three children were born to them. (R. 7a). On November 23, 1976, Mr. and Mrs. Long entered into an agreement regarding separation, division of property, custody of the children, support and other attendant items. (R. 7a-16a).
A criminal desertion and non-support proceeding instituted by Mrs. Long as the prosecutrix in the name of the Commonwealth against Mr. Long, came on for hearing on April 24, 1978 and an order was entered thereon on May 4,
[ 306 Pa. Super. Page 1441978]
, the Honorable Charles G. Sweet, President Judge, presiding. The court noted that there was some dispute as to Mrs. Long's performance of the 1976 agreement, but, taking all things into consideration, held that the support agreed to therein was reasonable and ordered Mr. Long to pay that amount.*fn1
On June 22, 1978, Mr. Long filed an action in equity against Mrs. Long claiming breach of the 1976 agreement, that the remedy at law was inadequate and seeking recission. (R. 3a-5a). On January 29, 1979, the court below ordered the equity complaint heard on the next desertion and non-support argument day.*fn2 This order was appropriately challenged below. On May 9, 1979, the court below granted summary judgment for appellee on the grounds that appellant's equity action was foreclosed by collateral estoppel by reason of the prior support hearing findings. The court below en banc affirmed. This appeal followed.
Two of the requisites for successful invocation of the collateral estoppel rule are:
(1) A full, fair and adequate opportunity to actually litigate the ...