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CECELIA AUMAN v. EDWARD JUCHNIEWITZ (03/31/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 31, 1983.

CECELIA AUMAN, APPELLANT,
v.
EDWARD JUCHNIEWITZ

No. 2221 OCTOBER TERM, 1979, Appeal from the Order of the Court of Common Pleas, Trial Div., Equity of Philadelphia County, No. 3974 December Term, 1976.

COUNSEL

Avram G. Adler, Philadelphia, for appellant.

Edward Juchniewitz, appellee, in pro. per.

Spaeth, Beck and Lipez, JJ.

Author: Per Curiam

[ 312 Pa. Super. Page 99]

The skimpy record before us in this appeal shows the following. On December 29, 1976 appellant filed a complaint in equity, which was served on defendant by registered letter to the Secretary of the Commonwealth and to defendant's last known address. Defendant never entered an appearance. The complaint requested that the decree divorcing appellant from defendant in 1969 be reformed into a decree of annulment. The next thing which appears in the record is the lower court's order, which states:

AND NOW, to wit, this 5th day of October, 1979, upon consideration of the Petition for reformation of Decree in Divorce to Decree of Annulment, it is hereby ORDERED that the said Petition is denied. The Court finds that

[ 312 Pa. Super. Page 100]

Plaintiff has not shown any fatal defect apparent on the face of the record, that the Petition had not been presented within a reasonable time after Petitioner had learned grounds of the alleged defect and that this Court had earlier adjudicated the existence of a valid marriage which was concurred to by Petitioner. The Opinion of the Superior Court in WISECUP v. WISECUP, Pa. Super. 384 (1959) [sic] requires that the Decree not be reformed.

The remainder of the record consists of the notice of appeal*fn1 from this order, and a copy of the docket entries indicating the filing of the foregoing documents.

Although the petition which the lower court's order denied is not part of the record, a copy has been included in the reproduced record, along with a confusing compendium of copies of correspondence and other documents from the period 1975 through 1981. This material is not part of the record on appeal as defined in Rule of Appellate Procedure 1921, and it should not have been included in the reproduced record. General Accident Fire & Life Assurance, Ltd. v. Flamini, 299 Pa. Super.Ct 312, 317 n. 3, 445 A.2d 770, 773 n. 3 (1982); see Pa.R.A.P. 2152(a).

Appellant's brief argues that the case cited in the lower court's order, Wisecup v. Wisecup, 190 Pa. Super.Ct. 384, 154 A.2d 332 (1959), is distinguishable, and is inapplicable to the circumstances of this case. The argument, however, is based on a combination of factual allegations in the brief and the material in the reproduced record which is not in the original record, none of which we may consider. Commonwealth v. Rini, 285 Pa. Super.Ct. 475, 483, 427

[ 312 Pa. Super. Page 101]

A.2d 1385, 1389-90 (1981). It does not appear from the record that appellant had any opportunity to place her evidence on record and argue the legal consequences*fn2 before the lower court filed its order. Therefore we shall vacate the order, and remand so that appellant may have an opportunity to develop a record, on which disposition may properly be based.

Order vacated, and case remanded with instructions. Jurisdiction is not retained.


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