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LAVERNE PFLUGH v. BETTY J. PFLUGH (03/11/83)

decided: March 11, 1983.

LAVERNE PFLUGH, APPELLANT,
v.
BETTY J. PFLUGH



No. 1302 Pittsburgh, 1981.

COUNSEL

Joseph N. Bifano, West Mifflin, for appellant.

Anthony A. Seethaler, Bridgeville, for appellee.

Brosky, Johnson and Montgomery, JJ.

Author: Brosky

[ 311 Pa. Super. Page 222]

This appeal is from an order dismissing appellant's motion to strike appellee's petition for alimony and equitable distribution. Two issues are raised. First, it is argued that appellee failed to apply for leave to proceed under the provision of the No-Fault Divorce Code.*fn1 Second, appellant contends that he failed to receive either notice or service of this petition. On the basis of either of these arguments, appellant maintains that the petition for alimony and equitable

[ 311 Pa. Super. Page 223]

    distribution should have been denied. For the reasons below, we reverse and remand.

The instant divorce action was initiated prior to the effective date of the new Divorce Code, 23 P.S. § 101 et seq. This Act also provided, for the first time in this Commonwealth, for alimony and equitable distribution of marital property in connection with an absolute divorce. Under the new Code, an action instituted prior to the effective date of the Code but not yet final may proceed under the provisions of the Code "upon application granted." 23 Pa.S.A. § 103. Appellant argues that no such application to proceed was ever filed by appellee. We disagree. Appended to the petition for alimony and equitable distribution was a proposed order of court, which was subsequently signed by the Honorable George P. Kiester, granting her leave to file said petition. While we do not believe this to be the preferable procedure for applying for leave to proceed under the new Divorce Code, we believe it does constitute such an application.

This result is indicated by the opinion in Kaskie v. Kaskie, 295 Pa. Super. 523, 442 A.2d 261 (1982). That case also involved an alleged irregularity in the form of a request to transfer to the new Divorce Code. There, as here, a claim was filed for alimony and equitable distribution.*fn2 This court held in Kaskie that such a claim was an adequate means of filing a request to transfer the proceedings to the Divorce Code.

While the lower court's analysis comports with the language of section 103, our limited experience with the provision has disclosed a variety of methods triggering transfer of pending cases to the Divorce code. For example . . . There may still be other permutations of procedure that have, as yet, escaped appellate review. Considering the uncertainty that existed before the filing of our opinions in Gordon [ v. Gordon, 293 Pa. Super. 491,

[ 311 Pa. Super. Page 224439]

A.2d 683], Toll [ v. Toll, 293 Pa. Super. 549, 439 A.2d 712], and Conrad [ v. Conrad, 293 Pa. Super. 558, 439 A.2d 717] on December 18, 1981, it would be unfair to debar appellant because of a procedural irregularity in her attempt ...


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