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FRED LOWENSCHUSS v. BEVERLY P. SELNICK (01/27/84)

filed: January 27, 1984.

FRED LOWENSCHUSS, APPELLANT
v.
BEVERLY P. SELNICK



No. 899 PHILADELPHIA, 1982, Appeal from an Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4132 October Term, 1981.

COUNSEL

Jack M. Bernard and Daniel R. Sherzer, Philadelphia, for appellant.

Albert Momjian, Philadelphia, for appellee.

McEwen, Johnson and Hester, JJ. Johnson, J., concurs in the result.

Author: Hester

[ 324 Pa. Super. Page 194]

On September 28, 1981, appellee, Beverly Selnick, filed a Complaint in Divorce in the Court of Common Pleas of Montgomery County against appellant, Fred Lowenschuss.

[ 324 Pa. Super. Page 195]

The Complaint included ancillary claims for alimony, alimony pendente lite, child and spousal support, child custody, counsel fees, costs and expenses and certain equitable relief. Appellant's answer to the Complaint contained numerous allegations, the most noteworthy of which was that the parties were never lawfully married due to appellee's procurement of an invalid Alabama decree for divorce from her first husband, Elliot Bender. Appellant raised this same argument in preliminary objections. The Court of Common Pleas of Montgomery County dismissed the preliminary objections. Appellant's appeal from said dismissal was quashed by this Court on June 2, 1982.

On October 27, 1981, appellant filed a Complaint in Equity in the Court of Common Pleas of Philadelphia County asserting that, following the parties' separation, appellee entered his home without authority and removed therefrom several items of personal property which were purportedly solely owned by appellant. Through this Complaint, appellant sought an injunction to bar appellee from his home and to compel her to return the missing property. Pursuant to appellee's motion to dismiss, a rule to show cause why said Complaint in Equity should not be dismissed was entered against appellant. Following oral argument, the Complaint was dismissed. This appeal followed.

Appellant makes the following arguments: 1) Where the facts of record conclusively establish that the parties have never been lawfully married to each other, a court has no jurisdiction to entertain a claim for divorce; (2) Where the parties are not legally married, thereby negating the court's subject matter jurisdiction under the Divorce Code of 1980, one party may maintain an equity action as a jurisdictional "saving" action for claims properly brought before equity court in anticipation of the dismissal of the divorce action.

These arguments direct us to decide whether it is proper to maintain an equity action arising out of a marital relationship while a divorce proceeding is pending, which, if subject matter jurisdiction exists, can address the same issue raised in the equity action.

[ 324 Pa. Super. Page 196]

Section 301(a) of the Divorce Code sets forth in general terms the jurisdictional powers of the ...


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