Summary
In Stachurski v. Stachurski, 212 Pa. Super. 99, 239 A.2d 846 (1968), a petition to open a divorce decree was filed to enable the defendant to offer evidence.
Summary of this case from Douglas v. DouglasOpinion
December 15, 1967.
March 21, 1968.
Appeals — Divorce — Petition to open decree — Dismissal of petition because of appeal pending.
In this case, in which it appeared that to preserve the right of appeal from a decree in divorce entered against her, defendant filed an appeal on the last day allowed by law for that purpose; that at that time there was pending before the lower court a petition to open the decree for the purpose of permitting defendant to offer testimony in defense of the action; and that the court below discharged the rule issued on the petition, without argument and without consideration of the merits, on the ground that the case was on appeal and the court below was without jurisdiction; it was Held, for reasons stated, that the rule issued on the petition should be reinstated and the record remanded to the court below with directions to pass upon the merits of the petition.
Before WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ. (ERVIN, P.J., and WRIGHT, J., absent).
Appeal, No. 963, Oct. T., 1967, from order of Court of Common Pleas No. 8 of Philadelphia County, Sept. T., 1966, No. 2787, in case of Zbigniew Olgierd Jan Stachurski v. Jolanta Alicja Stachurski. Rule reinstated and record remanded.
Proceeding upon petition of defendant and rule to show cause why decree of divorce should not be opened.
Order entered dismissing petition, opinion by McDEVITT, III, P.J. Defendant appealed.
Kalvin Kahn, for appellant.
S. Patko, for appellee.
Argued December 15, 1967.
To preserve the right of appeal from the decree in divorce a.v.m., which was entered May 1, 1967, this appeal was filed August 1, 1967, the last day allowed by law for that purpose. However, at that time there was pending before the lower court a petition, filed June 2, 1967, to open the decree for the purpose of permitting appellant-defendant to offer testimony in defense of the action. The rule issued on this petition was scheduled for argument August 10, 1967. This argument was not held and the merits of the petition were not considered, same having been dismissed on August 10, 1967 for the following reason: "Rule to Open Final Decree and Allow an Answer is Discharged. Case is on appeal and this Court is without jurisdiction."
This would appear to be within the same term as that during which the decree in divorce was filed and should have suspended the operation of the decree. Fisher v. Fisher, 74 Pa. Super. 538 (1920).
Our cursory examination of this record and appellant's brief (no brief has been filed by appellee) indicates that the procedure followed in this case should be more closely examined since it appears questionable whether the law has been fully complied with. Furthermore, there are equitable reasons present which also compel that careful consideration of appellant's petition be given. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938). For these reasons the rule issued on appellant's petition to open the decree is reinstated and the record is remanded to the lower court with directions to pass upon the merits of the "Petition to Open the Decree".