DocketNumber: 1512
Judges: Price, Cavanaugh, Watkins
Filed Date: 2/13/1981
Status: Precedential
Modified Date: 10/19/2024
Appellant and appellee, former husband and wife, entered into a settlement agreement on May 8, 1975. They were subsequently divorced by Decree entered June 2, 1975. Under the terms of the agreement, appellant promised to pay his wife a sum equal to six percent of any proceeds he might receive from the sale, during his lifetime, of his forty-five percent interest in Morris Paper Company, Incorporated.
By reason of the interlocutory nature of the lower court order, we are met at the threshold of this case by this court’s ability to entertain the present appeal. This court has jurisdiction only over final orders of the courts of common pleas,
Appellant’s first contention is that equity lacked jurisdiction because “of the existence of a full, complete and adequate non-statutory remedy at law.”
Appellant’s second contention is that the family division of the Court of Common Pleas of Allegheny County was an inappropriate selection of division for the commencement of this action. The trial court’s order denying this objection is intimately bound up with jurisdictional considerations, and therefore, subject to our review.
Prior to the adoption of the present judiciary article,
Until otherwise provided by law, the court of common pleas shall consist of a trial division, an orphans’ court division and a family court division; the courts of oyer and terminer and general jail delivery and quarter sessions of the peace, the county court, the orphans’ court, and the juvenile court are abolished and their present jurisdiction shall be exercised by the court of common pleas.” Pa.Const. Art. V, sched. § 17(a) (April 23, 1968, amended 1976).6
Appellant argues that this action should be tried in the civil division since it is, at its root, a contractual dispute, and that any other result would not comport with the decision in Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973). We disagree.
“Until otherwise provided by rule of the court of common pleas, the court of common pleas shall exercise jurisdiction in the following matters through the family court division:
(i) Domestic Relations: Desertion or non-support of wives, children and indigent parents, including children born out of wedlock; proceedings, including habeas corpus, for custody of children; divorce and annulment and property matters relating thereto.
(ii) Juvenile Matters: All matters now within the jurisdiction of the juvenile court.
*359 (iii) Adoptions and Delayed Birth Certificates.” Pa. Const. art. V, sched. § 17(b) (April 23, 1968, amended 1976).9
After examining this Schedule to the Judiciary Article, the majority opinion conceded that if “the underlying cause of action [had] been one of non-support, it would have properly been docketed in the Family Division.” Posner v. Sheridan, 451 Pa. at 58, 299 A.2d at 312. However, the majority believed that the reduction of the arrearages to judgment had transformed the character of the lawsuit to an assumpsit action for debt. Accordingly, the supreme court vacated the decision below since, in its judgment, the original complaint had been improperly entertained by the family division.
Unlike the facts in Posner, the instant case involves no existing judgment to transform the form of action to a collection for debt. Rather, we are concerned solely with the enforcement of an agreement for the support of appellee as contained in the signed agreement of May 8, 1975. Clearly, this falls within the purview of Schedule 17, viz, its language that the family court division shall exercise jurisdiction over “nonsupport of wives, . . . divorce . . . and property matters relating thereto.” Pa.Const. art. V, sched. § 17(bXi) (April 23, 1968, amended 1976). Moreover, the agreement in dispute states that “the parties desire to make arrangements in connection with their proposed permanent separation, including the settlement of their property rights, the support and maintenance of the wife by the husband, and other rights and obligations growing out of their marital relationship.” (Brief for Appellant at 10A). For these
The order of November 1, 1978 is affirmed.
. 42 Pa.C.S.A. § 742 (1979).
. Pa.R.C.P. No. 1509(c), 42 Pa.C.S.A.
. In Binder v. Miller, 456 Pa. 11, 317 A.2d 304 (1974), the supreme court held in a per curiam opinion that disputes as to appropriate division do not raise jurisdictional issues. However, we consider this case to be of uncertain precedential authority in light of the supreme court’s decisions in Estate of Hahn, 471 Pa. 249, 369 A.2d 1290 (1977), and in Estate of Phillips, 471 Pa. 289, 370 A.2d 307 (1977). Moreover, we question the applicability of the supreme court’s most recent pronouncement in Commonwealth ex rel. Stein v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979), that divisional assignments do not relate to jurisdiction since Justice Nix’s opinion for the court does not express a majority standard. Commonwealth ex rel. Stein v. Stein, 487 Pa. at 5 n.1, 406 A.2d at 1383 n.1 (Per Nix, J., with four justices concurring in the result). Clearly, it would be anomalous to suggest that divisional assignments among the court of common pleas could properly be characterized as relating to anything other than subject matter jurisdiction. See, e. g., Brumm v. Pittsburgh Nat’l Bank, 213 Pa.Super. 443, 249 A.2d 916 (1968). To hold otherwise, and deny appellate review no matter how patently erroneous a plaintiffs selection of division may be, would be tantamount to obliterating the broad areas of law to which each division of the court of common pleas is to direct its attention. See generally Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973).
. Pa.Const. art. V, §§ 1-18 (April 23, 1968, amended 1976).
. Pa.Const. art. V, § 5 (April 23, 1968, amended 1976).
. Schedule to Judiciary Article, § 17(a), has since been superseded and in part implemented by 42 Pa.C.S.A. § 951(b) (1979).
. Initially, we note that even had there been a clear mistake in the exercise of jurisdiction by the court below, the remedy for bringing a case in the wrong division of a multidivision court is not dismissal, but rather a transfer of the matter to the correct division. Common
“If an appeal or other matter is taken to, brought in, or transferred to a division of a court to which such matter is not allocated by law, the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper division of the court, where the appeal or other matter shall be treated as if originally filed in the transferee division on the date first filed in a court or magisterial district.”
42 Pa.C.S.A. § 5103(c) (1979).
. The majority opinion also held that the lower court’s decree was incorrect as a matter of law. Posner v. Sheridan, 451 Pa. at 57, 299 A.2d at 312.
. Appellant’s objections were filed prior to the effective date of the Judiciary Act of 1976, P.L. 586, § 26(b) (1976), suspending sched. § 17 to the Judiciary Article, V. This fact, however, does not affect our disposition of the instant appeal. Subsection (b) states that sched. § 17 is “superseded and suspended absolutely effective upon the date upon which the provision is or was suspended absolutely by general rule.” For provisions relating to rules prescribed by general rule, see 42 Pa.C.S.A. §§ 102, 503 (1979). Since no such general rule is in effect with respect to sched. § 17, the practice and procedure provided therein is, and shall continue, in force until such a general rule is promulgated.