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HARRY PASTUSZEK v. HARRY PASTUSZEK (10/18/85)

filed: October 18, 1985.

HARRY PASTUSZEK, JR., AND MICHALE PASTUSZEK, CO-EXECUTORS FOR IRENE PASTUSZEK, DECEASED, APPELLANTS,
v.
HARRY PASTUSZEK, APPELLEE



APPEAL FROM ORDER ENTERED MAY 31, 1984 COURT OF COMMON PLEAS, CIVIL DIVISION DELAWARE COUNTY, NO. 80-12030

COUNSEL

Melva L. Mueller, West Chester, for appellants.

Michael P. Dignazio, Media, for appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Cavanaugh

[ 346 Pa. Super. Page 418]

Irene Pastuszek filed a complaint in divorce under the Divorce Code, 23 Pa.C.S. § 201(d), against her husband, Harry Pastuszek, in September, 1980.*fn1 The defendant below, Harry Pastuszek, who is the appellee herein, filed preliminary objections to the complaint which were dismissed. A master in divorce was appointed and the appellee filed a motion to have the appointment stricken, but

[ 346 Pa. Super. Page 419]

    before argument was heard he appealed to this court from the order appointing the master. We granted the petition of Irene Pastuszek to quash the appeal on January 17, 1983. On February 2, 1983, the Master filed his report recommending the grant of a divorce. A decree in divorce was entered on March 18, 1983, and the decree provided that "the court reserves jurisdiction to dispose of ancillary matters properly raised by the parties heretofore."

Irene Pastuszek died on July 19, 1983, before any action was taken in the court below pertaining to the ancillary matters of equitable distribution of marital property, alimony pendente lite and counsel fees. The record discloses that for some time before Mrs. Pastuszek's death she suffered from advanced stages of cancer, and her death appeared imminent at the time the divorce decree was entered. There is evidence that Mr. and Mrs. Pastuszek had interests in real estate amounting to over $400,000.00. Mrs. Pastuszek was survived by four children, two of whom, Harry Pastuszek, Jr. and Michele Pastuszek, are executors of her estate. Under Mrs. Pastuszek's will, her four children share equally in her estate. Mrs. Pastuszek died a resident of the State of Delaware and her estate is subject to the jurisdiction of the appropriate court of that state.

Following Mrs. Pastuszek's death, the executors of her estate were substituted as parties plaintiff in the court below and sought to continue with the ancillary aspects of the divorce proceedings. On May 31, 1984, Labrum, J., following a hearing, granted the appellee's petition to abate the ancillary matters outstanding because of Mrs. Pastuszek's death. The executors of the estate have appealed.

This is a case of first impression in an appellate court of this Commonwealth.*fn2 The issue is whether a divorce action abates in all respects upon the death of one of the parties subsequent to the entry of the divorce decree (and where

[ 346 Pa. Super. Page 420]

    there has been no appeal taken from the entry of such decree) and prior to the determination of ancillary questions which have been raised before the death of the spouse. We recently determined in Haviland v. Haviland, 333 Pa. Super. 162, 481 A.2d 1355 (1984) that a pending divorce action abates upon the death of one of the spouses prior to the entry of the divorce decree. We must now go beyond the scope of Haviland, ...


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