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SHEILA A. BERGERE v. ALLEN BERGERE (02/10/87)

submitted: February 10, 1987.

SHEILA A. BERGERE, APPELLANT,
v.
ALLEN BERGERE



Appeal from the Order entered July 14, 1986 in the Court of Common Pleas of Luzerne County, Civil, No. 5277-C of 1985.

COUNSEL

Thomas J. Carlyon, Hazleton, for appellant.

Stephen J. Fendler, Wilkes-Barre, for appellee.

Beck, Hester and Roberts,*fn* JJ.

Author: Beck

[ 364 Pa. Super. Page 102]

In this divorce action the issue is whether the actions of appellee, a non-resident husband, constituted consent to the trial court's personal jurisdiction over him or whether he waived his right to contest the validity of the court's personal jurisdiction.

The trial court dismissed wife-appellant's petition for economic relief under the Divorce Code*fn1 on the ground that it lacked jurisdiction inasmuch as the husband neither consented to personal jurisdiction nor waived his right to contest jurisdiction. We point out that the question before us is limited to an economic claim arising from the marriage and does not relate to the marital status of the parties. E.g. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957), Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed.2d 1577 (1945).

An order determining that the court lacks personal jurisdiction is a final order because the parties are out of court; such an order is therefore appealable. Radakovich v. Weisman, 241 Pa. Super. 35, 359 A.2d 426 (1976); see Vision Service Plan of Pa. v. Pennsylvania AFSCME Health and Welfare Fund, 326 Pa. Super. 474, 480 n. 5, 474 A.2d 339, 342 n. 5 (1984). This conclusion is clear from case law and also from the official note to Pa.R.App.P. 311(b). Referring to an appeal as of right from an interlocutory order sustaining personal jurisdiction, the note to rule 311(b) indicates that the rule "does not cover orders which do not sustain jurisdiction because they are, of course, final orders appealable under Rule 341." We recognize that the comment is not controlling. However, it does comport with logic and case law. Therefore, the order in the case sub judice which finds the court lacked personal jurisdiction is appealable pursuant to Pa.R.App.P. 341.

[ 364 Pa. Super. Page 103]

If the basis of the appeal were the court's denial of economic relief in the form of alimony pendente lite, we would find the order interlocutory and quash. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). However, the basis of the court's order is jurisdictional and therefore final.

For the sake of clarity, we first note that the wife's claim of jurisdictional legitimacy is not based on an assertion that husband was personally served or on an assertion that the long arm statute is applicable. Uniform Interstate and International Procedure Act, 42 Pa.Cons.Stat.Ann. ยงยง 5322-5329 (Purdon 1981). Rather wife asserts two other bases for the court's personal jurisdiction over her husband. First she contends husband waived the defense that the court lacked personal jurisdiction by failing to raise the defense both in preliminary objections to the divorce complaint and in a timely petition pursuant to the local rules of Luzerne County. C.P.R. 1910.8(b). Second, wife contends that husband consented to the court's personal jurisdiction by filing exceptions to the master's proposed orders for alimony pendente lite.*fn2

Before considering these two issues, we review the facts, which are uncontested. Husband and wife were married and resided in Maryland. Upon separation, wife moved to Pennsylvania where her parents live. She established her domicile in Pennsylvania and filed a complaint for divorce and for economic relief including an award of alimony pendente lite. Husband was served constructively by registered mail. Pa.R.C.P. 2079(a) (rescinded June 20, 1985, effective Jan. 1, 1986). He did not respond.

On January 21, 1986, the wife, following local procedure, filed a copy of her request for alimony pendente lite with the Luzerne County ...


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