Summary
In Rothman v. Rothman, 425 Pa. 406, 228 A.2d 899 (1967), it was held that, where a defendant had entered his appearance the prior year in a divorce action instituted against him, personal service of defendant was not required in a subsequent suit in equity seeking to restrain him front commencing or proceeding with any action for divorce in the State of Nevada. A copy of the equity complaint was served on the attorneys who had entered an appearance for the defendant in the divorce action.
Summary of this case from Friedman v. Abington Township et alOpinion
January 6, 1967.
May 3, 1967.
Courts — Jurisdiction — Personal jurisdiction — Divorce action — Subsequent equity action to restrain defendant — Pa. R. C. P. 1503 and 1504.
1. In this appeal from an order overruling defendant's preliminary objections to a complaint in equity, in which defendant questioned the court's jurisdiction over his person, in which it appeared that defendant had entered his appearance in previous actions for separation and for support and for divorce instituted in the same court, and that subsequently the plaintiff filed a complaint in equity seeking to restrain him from commencing or proceeding with any action for divorce in the State of Nevada, it was Held that the court below was justified in assuming jurisdiction in the equity proceeding regardless of the propriety of the attempted service of process upon him.
2. Wenz v. Wenz, 400 Pa. 397, Held controlling. [408]
Mr. Justice ROBERTS filed a concurring opinion, in which Mr. Justice JONES and Mr. Justice EAGEN joined.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 57, Jan. T., 1967, from decree of Court of Common Pleas of Montgomery County, No. 66-5103, in case of Doris Kandel Rothman v. Michael Rothman, Howard Gittis and Daniel B. Brandschain. Decree affirmed.
Equity. Before HONEYMAN, J.
Defendant's preliminary objections raising jurisdictional questions dismissed. Defendant appealed.
Steven A. Arbittier, with him Howard Gittis, and Wolf, Block, Schorr Solis-Cohen, for appellant.
Sheldon W. Farber, with him Morris Passon, for appellee.
Appellee, in April of 1965, commenced an action for support against appellant in the courts of Montgomery County. In October of 1965, appellee instituted an action for divorce against appellant in Montgomery County. Appearances were entered on appellant's behalf in the divorce action and an answer to the complaint in divorce was filed. In the support action, the parties had entered into a separation agreement.
In April of 1966, appellee filed a complaint in equity against appellant, seeking to restrain him from commencing or proceeding with any action for divorce in the State of Nevada. A preliminary injunction was issued, ex parte, enjoining the defendant from commencing or proceeding with any action for divorce in Nevada or elsewhere. A copy of the equity complaint and the preliminary injunction were served on the attorneys who had entered an appearance for appellant in the divorce action which had previously been filed by appellee. In addition, service was made on the manager of an apartment building where appellant allegedly resided, as well as on appellee herself, at her residence, she being, presumably, an adult member of appellant's household.
Counsel appeared for appellant and filed preliminary objections raising a question of jurisdiction, alleging that personal service had not been made on appellant in the equity action since he did not reside at either of the addresses where service was attempted, and that the attorneys who had entered their appearance for him in the divorce action were not authorized to accept service on his behalf in the equity proceeding. Appellant appeals from the order of the court below overruling his preliminary objections.
The court below held that even if service had not been accomplished in accordance with Pa. R. C. P. 1504, it, nevertheless, had jurisdiction over appellant in the equity proceeding. The court based its conclusion on our decision in Wenz v. Wenz, 400 Pa. 397, 162 A.2d 376 (1960). In that case, Mrs. Wenz had commenced an equity action in Lehigh County against her husband, seeking relief under an antenuptial agreement. After Mr. Wenz had filed an answer contesting the validity of the marriage, he instituted a suit in Maryland, seeking an annulment. Mrs. Wenz sought an injunction to restrain Mr. Wenz from prosecuting the Maryland suit, and such a decree was entered. Mr. Wenz appealed, and we said: "It is plain enough that Wenz, by his answer to the complaint in Lehigh County, voluntarily put the validity of his marriage to the plaintiff in issue there and by subsequently instituting suit in the Maryland court, for annulment of the marriage, contumaciously attempted to circumvent and subvert the authority and jurisdiction of the Lehigh County Court. In such circumstances, a court has not only the power but the duty to thwart such an undertaking by a restraining order adequate to the circumstances."
We hold that Wenz is controlling in this situation, and that the language of Rule 1503(a)(2) is consistent therewith. That rule states that: ". . . a judgment, order or decree shall not bind a defendant personally unless he is served within the County, or within the Commonwealth in conformity with Rule 1504(b), or unless he appears or otherwise submits himself to the jurisdiction of the court." (Emphasis supplied).
We agree with the conclusion of the court below that it had twice obtained jurisdiction over appellant, in the divorce action and the action for support, in matters dealing with the marital affairs of the parties. The court, therefore, was justified in assuming jurisdiction in the equity proceeding, and we need not, nor do we, decide the propriety of the attempted service of process.
Inasmuch as appellant had submitted himself to the jurisdiction of the court in the previous actions, its decree in the equity action may properly bind him.
Decree affirmed.
I concur in the result because the relief sought in the equity proceeding is actually ancillary to the pending divorce action on the law side of the court and because the same relief could have been obtained by filing an ancillary motion in the divorce action. Since I regard the equity action as if it were filed on the law side of the court of common pleas, the service upon counsel is equivalent to service under Pa. R. C. P. 233 and 1027 and should not be confused with the initial service required in order to institute a lawsuit, under Pa. R. C. P. 1007.
Mr. Justice JONES and Mr. Justice EAGEN join in this concurring opinion.