Citation Numbers： 25 A.2d 111, 147 Pa. Super. 564
Judges： OPINION BY KELLER, P.J., February 28, 1942:
Filed Date： 10/7/1941
Status： Precedential
Modified Date： 1/12/2023
I would affirm the order sustaining the preliminary objections. If Melnick had claimed the right to share in Helen Melnick's personal estate if she should predecease him, or had made any other similar claim, I would be compelled to bow to the authority of Moore v. *Page 583 Moore,
The majority opinion states: "Melnick averred at some length the injurious effects on his personal status and his personal and property rights occasioned by said colorable and unlawful Nevada decree. . . . . ." Let's see what these averments were. He alleges that his right to transfer property, that his right to remarry, that his right to have legitimate children may be jeopardized. But what he asks the court for is a decree that he cannot freely transfer his property; that he cannot remarry; that he cannot have legitimate children. This proves to my mind that the whole business is the merest pretense. It is as if he were to come into court and say: "I have a piece of property; my wife claims she has no interest in it and that I can do with it as I please; I claim I cannot do with it as I please; therefore, I ask the court to decree that I cannot so as to end the controversy." By no stretch of the imagination can I find an assertion by him of a status in which he claims a concrete interest and a denial by an adversary party who also asserts a concrete interest therein. In my opinion, it is sham intended to cover up the real purpose of the action, which is to embarrass, harass and annoy defendants.
As the majority opinion indicates, we cannot restore harmony by bringing the Melnicks happily together again. If we could, it would be another matter. I deeply appreciate these indefinable rights involved in the marriage status. But to say that they are indefinable, in *Page 584 my opinion, is the equivalent of saying they are not justiciable in a proceeding of this nature. And I think the Legislature has wisely put them out of reach by the use of the qualifying word "concrete." Decrees in divorce and in proceedings to annul a marriage, of course, adjudicate matters of abstract status. It is their very nature to do so. But it does not, in my opinion, follow that a declaratory judgment may likewise do so. Again — although I may be merely repeating what I have already said in a different way — if Melnick had obtained the Reno divorce, the wife had refused to recognize it, he wanted to remarry and he sought an adjudication that the decree was valid in order to clear up his right to do so and dispose of his property by will in the event he should die first, the situation would be different.
In my opinion the solemn pronouncement by a court that these parties are still married would have no more legal effect than the written opinion of Melnick's lawyer. It would merely have a greater social effect. But the effect would be harmful to defendants without a corresponding real benefit to Melnick. I don't believe it would have the effect of curing the alleged theoretical injury to him because of a Reno decree finding him guilty of cruelty. Here again, I think his injuries more pretended than real.
I don't think the broad general question whether courts of this Commonwealth have jurisdiction in a declaratory judgment proceeding to pass on the validity of a foreign divorce is involved. I have already indicated I think there may be cases in which the adjudication of that question would be proper. But I am unwilling to be deterred from declaring what I conceive to be the clear law of this case for fear it may become a precedent. I regard Melnick's conduct in bringing this action as a close approach to malicious abuse of legal process and I find no justiciable controversy.