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BRIAN ANDREW BENNER AND COLLEEN ELIZABETH BENNER BY THEIR MOTHER AND NATURAL GUARDIAN MARY ANN CASSIDY (10/10/86)

filed: October 10, 1986.

IN RE BRIAN ANDREW BENNER AND COLLEEN ELIZABETH BENNER BY THEIR MOTHER AND NATURAL GUARDIAN MARY ANN CASSIDY


Appeal from the Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 85-3536-13-6.

COUNSEL

Miriam M. Reimel, Bristol, for appellant.

Rowley, McEwen, and Olszewski, JJ. McEwen, J., files a dissenting opinion.

Author: Rowley

[ 357 Pa. Super. Page 432]

OPINION OF THE COURT

This is an appeal from an order of court dismissing appellant's post-trial motion.

The parties to this appeal are the divorced parents of two minor children who have been in the custody of appellant-mother since 1978. On May 5, 1985, appellant filed a petition seeking to change the surname of the children from Benner to Cassidy-Benner, pursuant to the Judicial Change

[ 357 Pa. Super. Page 433]

    of Name Act, Act of December 16, 1982, P.L. 1309, No. 295, 54 Pa.C.S. §§ 701-05. Appellant filed the petition because of her desire to have "her parentage recognized." A hearing on the petition was subsequently held, during which appellee-father testified in opposition to the proposed name change. Expressing the view that the children themselves should be permitted to decide upon their surname later in their lives without the influence of either parent, the trial court, by an opinion and order dated August 15, 1985, denied the petition without prejudice to renew the request for a name change "at a subsequent proper time." Appellant filed a motion for post-trial relief which was denied on December 4, 1985, and this appeal followed six days later. Appellant raises a number of constitutional challenges, but we do not reach the merits of these issues for the following reasons.

Appellant took this appeal from an order denying a post-trial motion. The Judicial Change of Name Act (the Act) does not enunciate the procedure which applicants must follow. Similarly, case law concerning petitions filed under the Act has not to date addressed the propriety of the procedures followed by petitioners in those cases. The dearth of case law in this area reveals that direct appeals have consistently been taken from the ruling on the petition for change of name; post-trial motions have not been filed in these cases. Appellant's procedural deviation in the instant case presents us with an issue of first impression: must post-trial motions be filed to preserve issues for appellate review of an order ruling on a petition for change of name?

The Act provides, in part,

§ 701. Court approval required for change of name

(a) General rule. -- It shall be unlawful for any person to assume a name different from the name by which such person is and has been known, unless such change in name is made pursuant to ...


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