No. 1288 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Family Division-Law, of Philadelphia County at No. 2421 November Term 1980.
H. Fiebach, Philadelphia, for appellant.
David E. Auerbach, Media, for appellee.
Wickersham, McEwen and Lipez, JJ.
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On May 11, 1981, Judge Nicholas A. Cipriani, of the Philadelphia County Court of Common Pleas, entered a preliminary injunction restraining Stephen M. Lazovitz, appellant, from, inter alia, proceeding with a Florida divorce action or removing from Pennsylvania any assets owned by Stephen Lazovitz and Marion Lazovitz, his wife, or in which Mrs. Lazovitz had a marital interest. Judge Cipriani held a hearing on the continuance of the preliminary injunction on May 13, 1981, and continued the preliminary injunction on May 18, 1981. Mr. Lazovitz appealed the order of May 18, 1981, on May 20, 1981. This timely appeal is authorized by Pa.R.A.P. 311(a)(4). Rule 311(a)(4) permits an interlocutory appeal from an order continuing an injunction thus the appeal is properly before our court.
Stephen M. and Marion S. Lazovitz were married on January 20, 1963. The couple lived in Haverford, Pennsylvania and had four children: Sandra, born May 12, 1965; Susan, born October 22, 1967; Joel and Martha, both born February 26, 1977. Mr. and Mrs. Lazovitz separated in 1978 and Mr. Lazovitz moved to Philadelphia.
Marion S. Lazovitz filed a complaint in divorce against her husband on November 17, 1980. The complaint, filed in the Court of Common Pleas of Philadelphia County, sought a divorce, equitable distribution of property acquired during the marriage, alimony, child support, alimony pendente lite, counsel fees, costs and expenses, and custody of the four children of the marriage. Mrs. Lazovitz's complaint acknowledged that Mr. Lazovitz had filed an action for divorce in Broward County, Florida and that the Florida divorce action was pending when she filed her action for divorce in Pennsylvania.
Mr. and Mrs. Lazovitz attempted to negotiate a property settlement but these negotiations collapsed. On May 9, 1981, Mr. Lazovitz filed preliminary objections to Mrs. Lazovitz's divorce complaint. The preliminary objections raised several issues: that his Florida divorce action would grant his wife the divorce she sought, that her request for equitable
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distribution of property was not pleaded with sufficient specificity and that, as to the rest of Mrs. Lazovitz's requested relief, Mr. Lazovitz was a Florida domiciliary not subject to the jurisdiction of the Pennsylvania courts.
A final hearing in Mr. Lazovitz's Florida divorce suit was scheduled for May 13, 1981. On May 11, 1981, Mrs. Lazovitz filed a complaint in equity against her husband and others and a petition and affidavit for a preliminary injunction; the equity complaint and petition for injunction were docketed with her complaint in divorce. The petition for injunction alleged that Mr. Lazovitz filed his Florida divorce suit, falsely stated that he had been a Florida resident for more than six months before filing and thus attempted to perpetrate a fraud on the Florida court. Mrs. Lazovitz further alleged that in an effort to defeat her rights under Pennsylvania law, Mr. Lazovitz was about to remove or alienate property from the jurisdiction of Pennsylvania courts. Finally, Mrs. Lazovitz alleged that her husband's actions would cause her irreparable injury by defeating her rights under Pennsylvania law.
Mrs. Lazovitz's request for an injunction was made ex parte. Judge Cipriani granted a preliminary injunction restraining Mr. Lazovitz from, inter alia, pursuing his Florida divorce suit and from transferring or removing assets in which Mrs. Lazovitz had a marital interest. Mr. Lazovitz was not personally served with the preliminary injunction but the order was served on his counsel.
A hearing on the continuance of the preliminary injunction was held before Judge Cipriani on May 13, 1981. At the May 13 hearing, Mr. Lazovitz's counsel vigorously argued several grounds for vacating or dissolving the preliminary injunction. Mr. Lazovitz contended, inter alia, that the preliminary injunction was improperly issued ex parte, that the preliminary injunction was not properly served upon him and that the Pennsylvania court had no jurisdiction over him as a Florida domiciliary. Judge Cipriani believed that the jurisdictional issue was important and stated: "I am prepared to have a hearing on the matter of domicile on very short
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notice." Record at 49. Mrs. Lazovitz was prepared to present evidence on the question of her husband's domicile but Mr. Lazovitz's counsel resisted taking testimony on the issue on short notice.
After the May 13 hearing, Judge Cipriani issued a rule upon Mr. Lazovitz to show why a preliminary injunction should not issue restraining him from prosecuting a foreign divorce, transferring assets or leaving Pennsylvania; this rule was docketed May 13, 1981. On May 18, 1981, Judge Cipriani entered an order continuing the order of May 11, 1981. The May 11, 1981, order was modified to allow Mr. Lazovitz to operate his businesses normally.
A hearing to take testimony on the question of Mr. Lazovitz's domicile was scheduled for May 21, 1981. At the May 21, 1981, hearing, Mr. Lazovitz's counsel informed Judge Cipriani that an appeal had been taken to this court. The judge then continued the hearing generally.
Mr. Lazovitz's first appellate issue is:
1. Is the Order of the court below invalid because it was entered ex parte where there was no emergency justifying the entry of a preliminary injunction without notice or hearing?
Brief for Appellant at 3.
Mr. Lazovitz contends that to obtain a preliminary injunction without notice or hearing, one must show that it is impossible to notify the opposing party that one is seeking an injunction and that if the injunction awaits a hearing irreparable, immediate injury will result. Mr. Lazovitz maintains that his wife gave no notice that she would seek an injunction on May 11, 1981, even though Mrs. ...