Appeal from the Order entered July 1, 1987, Court of Common Pleas, Westmoreland County, Civil Division at NO. 2191 of 1987.
John M. Leonard, Latrobe, for appellant.
Jane U. Criste, Johnstown, for appellee.
McEwen, Del Sole and Johnson, JJ.
[ 373 Pa. Super. Page 173]
We are asked to decide whether a pendent prior divorce action provides sufficient grounds to dismiss a second divorce complaint brought in an adjacent county by the same plaintiff. In light of the objectives of the Divorce Code of 1980, we find that it is sufficient and we therefore affirm.
Appellant Ermyl E. Gibson (Husband) appeals from the trial court's order of July 1, 1987 sustaining the Preliminary Objections of the appellee Elsie K. Gibson (Wife). The order dismissed Husband's second Complaint in Divorce filed in Westmoreland County on April 2, 1987. By preliminary objection Wife maintains that a prior divorce action, still pending in Somerset County, warrants dismissal of the second action. Husband argues that the trial court erred in finding that the prior case was the same as the second and in thus dismissing the second action. He contends that because the second action alleges a different ground for divorce, it is a new, distinct case.
We should affirm the grant of the preliminary objections if the dismissal is clearly warranted and free from doubt. Stein v. Richardson, 302 Pa. Super. 124, 448 A.2d 558 (1982) (en banc). In ruling on the preliminary objections, we must consider only those facts set forth in the complaint itself. International Union of Operating Engineers, Local No. 66 v. Linesville Construction Company, 457 Pa. 220, 322 A.2d 353 (1974). The facts before this court as set forth in Husband's complaint are as follows:
A prior Action in Divorce was filed by [Husband] . . . in the Court of Common Pleas of Somerset County . . . . This Action is still pending, however, [Husband] has filed a Motion to Discontinue the Action in Somerset County. The prior action that is still pending in Somerset County alleges irretrievable breakdown of the marriage only and requests a Divorce pursuant to Section 201(c) of the Divorce Code . . . . [Wife] filed an answer to the Complaint
[ 373 Pa. Super. Page 174]
. . . in Somerset County, however, no other action has been taken in that case by either party . . . .
We take judicial notice that the Court of Common Pleas of Somerset County denied Husband's Motion to Discontinue his action there by Order of April 9, 1987. On April 2, 1987, Husband filed a new Complaint in Divorce in Westmoreland County alleging indignities. Wife filed preliminary objections to the complaint pursuant to Pa.R.C.P. 1017(b)(5) asking the court to dismiss the complaint on the basis of the prior action pending in Somerset County. A trial court en banc heard arguments. On July 1, 1987, the Honorable John E. Blahovec by order and opinion sustained Wife's objections and dismissed the action, relying on the liberal joinder provisions of the Divorce Code of 1980, which would allow Husband to seek relief in the Somerset County action by simply amending his complaint to include indignities grounds.
In Gantz v. Gantz, 338 Pa. Super. 528, 488 A.2d 17 (1985), upon which the trial court relies, this Court held that the ...