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EDMUND J. URBAN v. MARGARET A. URBAN (09/07/84)

filed: September 7, 1984.

EDMUND J. URBAN
v.
MARGARET A. URBAN, APPELLANT



No. 2457 Philadelphia 1982, APPEAL FROM THE ORDER ENTERED AUGUST 6, 1982 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, CIVIL NO. 80-5666-05-5

COUNSEL

Roland J. Christy, Spring House, for appellant.

William M. Cowan, Jr., Levittown, for appellee.

Spaeth, President Judge, and Cirillo and Johnson, JJ. Spaeth, President Judge, concurs in the result. Johnson, J., files a dissenting opinion.

Author: Cirillo

[ 332 Pa. Super. Page 377]

This is an appeal from an order of the Court of Common Pleas, Bucks County, sustaining appellee's preliminary objections and striking appellant's answer and new matter.

Appellant, Margaret Urban, had filed for divorce against her husband, Edmund Urban, the appellee in this case. Pursuant to the Divorce Code,*fn1 appellant requested among other things, the equitable distribution of marital property. While the divorce matters were pending, Mr. Urban on February 22, 1981, filed a complaint in equity which averred that an agreement existed between the parties to divide the proceeds from the sale of their marital residence. Appellant did not respond to this complaint until nearly fifteen months had elapsed. On May 11, 1982, appellant filed an answer and new matter to the complaint.

Shortly thereafter, appellee filed preliminary objections which alleged that he had been prejudiced by the late filing and demanded that the answer and new matter therefore be stricken. Appellant's answer to the preliminary objections admitted the late filing of the original answer, but denied that prejudice resulted to the appellee because of it. The appellee ordered the matter for argument on petition and answer. The Honorable Judge Issac E. Garb sustained appellee's preliminary objections and struck appellant's untimely filed answer. This appeal followed.

We address first the appealability of this order. Generally, an appeal will lie only from a final order unless otherwise permitted by statute. Praisner v. Stocker, 313 Pa. Super. 332, 459 A.2d 1255 (1983). "An order is interlocutory and not final unless it effectively puts the litigant out of court, terminates the litigation or disposes of the entire case." Rigidply Rafters v. Aetna Cas. & Sur. Co., 311 Pa. Super. 549, 552, 457 A.2d 1318, 1320 (1983); Jackson v. Moultrie, 288 Pa. Super. 252, 431 A.2d 1033 (1981). However, in determining what is a final appealable order, "we must look beyond the technical effect of the adjudication to

[ 332 Pa. Super. Page 378]

    its practical ramifications." Jackson v. Moultrie, supra, 288 Pa. Superior Ct. at 255, 431 A.2d at 1034-35; Praisner v. Stocker, supra. "Certain orders which have not put a litigant literally 'out of court' or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from [presenting her claim]." Praisner v. Stocker, supra, 313 Pa. Superior Ct. at 338, 459 A.2d at 1258-59; Freeze v. Donegal Mutual Insurance, 301 Pa. Super. 344, 447 A.2d 999 (1982).

Instantly, we conclude that the lower court order striking appellant's answer and new matter is sufficiently final to warrant our review. See, Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966); Higgs v. New York Fire Insurance Co., 176 Pa. Super. 310, 106 A.2d 860 (1954); 2 P.L.E. Appeals § 36. The striking of the answer and new matter prevents appellant from denying averments of fact in the complaint and further prevents her from asserting affirmative defenses to appellee's action. Pa.R.C.P. 1029, 1030. The effect of appellant's pleadings being stricken here is to admit the existence of a valid agreement concerning the division of proceeds from the sale of the marital residence. For purposes of equitable distribution under the Divorce Code, the marital residence would thereby be excluded from consideration as marital property. 23 Pa.C.S. § 401(e)(2). Because the family home is both a substantial and unique asset, we believe that its removal from marital property calculation effectively puts appellant "out of court" on her claim for equitable distribution. Accordingly, we consider this appeal.

The Rules of Civil Procedure in Pennsylvania allow twenty days after service of a complaint for the filing of an answer. Pa.R.C.P. 1026. An answer not filed within the prescribed time may be stricken. Pa.R.C.P. 1017(b)(2). The twenty day filing rule, however, is not mandatory but permissive. Where possible the rules of ...


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