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ELAINE E. HUBER v. ROBERT R. HUBER (01/13/84)

filed: January 13, 1984.

ELAINE E. HUBER, APPELLANT
v.
ROBERT R. HUBER



No. 468 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Centre County, No. 1980-1320.

COUNSEL

Robert K. Kistler, State College, for appellant.

Charles J. Weyandt, State College, for appellee.

Rowley, Popovich and Montgomery, JJ. Popovich, J., concurs in the result.

Author: Rowley

[ 323 Pa. Super. Page 532]

This is an appeal, by Elaine E. Huber, appellant, from an order of the trial court sitting en banc overruling her exceptions to the trial judge's order that dismissed her complaint in assumpsit. On appeal, she claims that the trial court erred in ruling that a post-nuptial contract executed by her and her former husband, Robert R. Huber, appellee, was against public policy and unenforceable as a matter of law. We reverse.

Elaine and Robert were married on August 16, 1952. During their marriage, they had four children. On October 25, 1976, they entered into a post-nuptial agreement that included, among other things, provisions for: the separation of Elaine and Robert; custody of the children; support for Elaine; support for the children; the disposition of personal property; and, life insurance. Although the record does not disclose it, counsel agreed that subsequent to the execution of the agreement, Robert obtained a divorce. On May 21, 1980, Elaine filed a complaint alleging that Robert had failed to make the payments, as set forth in their agreement, for the support of one of the children and for the college education of another child. She did not seek to enforce any of the other provisions of the contract in her assumpsit action.

Robert filed preliminary objections to the complaint in the nature of a demurrer and a motion to dismiss the complaint. The objections did not raise the issue of the agreement's enforceability or legality. The trial court, sua sponte,

[ 323 Pa. Super. Page 533]

"raised the issue of the validity" of the agreement. The court chose not to rule on Robert's preliminary objections and instead decided that the contract was unenforceable because it contained a provision that it was contingent on Robert "obtaining an uncontested divorce." (emphasis supplied.) As a result, Elaine's complaint was dismissed on January 20, 1981, without a hearing and without an answer having been filed by Robert. On January 26, 1981, Elaine filed exceptions to the order of the trial court. The exceptions were heard by a court en banc which filed an opinion and order denying the exceptions on January 11, 1982. Elaine filed a notice of appeal from the order denying her exceptions on February 9, 1982. Upon review of the record, we find that the trial court erred in holding that the post-nuptial agreement was unenforceable as a matter of law and, therefore, we reverse.

Initially, we note that the appeal in this case, was timely filed. Although neither party raised the issue of the appealability of the en banc court's order, it is encumbent upon this Court to determine whether the appeal is properly before us. Rohr v. Keystone Insurance Co., 294 Pa. Super. 179, 439 A.2d 809 (1982).

Under the circumstances of this case, the trial court's order of January 20, 1981, dismissing appellant's complaint, was not a final appealable order. In dismissing appellant's complaint, the trial court did not rule on the preliminary objections raised by the appellee. On the contrary, the trial judge raised the issue of the illegality of the contract on his own, and in doing so, he decided the case on the basis of a potential, affirmative defense that should have been pleaded in an Answer containing New Matter. See Pa.R.C.P. 1030. In this situation, the trial court's order was, in reality, an adjudication on the merits of a potential defense available to appellee. The appellant, therefore, ...


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