Hertz v. Hertz

Supreme Court of Pennsylvania

Hertz v. Hertz

448 A.2d 626, 302 Pa. Super. 259, 1982 Pa. Super. LEXIS 4726

CourtSupreme Court of Pennsylvania

DecidedJuly 23, 1982

Docket83

StatusPublished

Cited by6 cases

This text of 448 A.2d 626 (Hertz v. Hertz) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hertz v. Hertz, 448 A.2d 626, 302 Pa. Super. 259, 1982 Pa. Super. LEXIS 4726 (Pa. 1982).

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Opinions

MONTEMURO, Judge:

Appellant, Judith E. Hertz, brought an action for a declaratory judgment under § 206 of the Divorce Code¹ to adjudicate the validity of her alleged common law marriage with the appellee, Jack F. Hertz. On November 10, 1980 and on December 10, 1980, the lower court heard testimony on the matter and filed an opinion and order on March 2, 1981 declaring that the common law marriage was invalid. No exceptions were filed. On March 27,1981 the appellant filed this appeal from the lower court’s order.

Appellant contends on this appeal that the clear weight of the evidence was contrary to the declaratory order and that the lower court abused its discretion in finding that the parties did not form a common law marriage. We cannot, however, review appellant’s contentions where thére has [261]*261been noncompliance with the appropriate procedural rules applicable in actions for declaratory judgment. Accordingly, the appeal must be quashed.

Pursuant to Pa.R.C.P. 1601(a), the practice and procedure in actions for declaratory judgment must follow “as nearly as may be, the rules governing the Action in Equity,” This requires the lower court to enter an adjudication in accordance with Pa.R.C.P. 1517, the filing of exceptions thereto and subsequent disposition by a court en banc under Pa.R. C.P. 1518, and the entering of a final decree, whether or not exceptions have been filed, as provided by Pa.R.C.P. 1519.

Appellant’s statement of jurisdiction asserts that the appeal is properly before this court pursuant to 42 Pa.C.S.A. § 7532. This Section, in pertinent part, provides as follows:

The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force of a final judgment or decree. (Emphasis added)

Appellant interprets this section to mean that the lower court’s order is a final judgment from which an appeal can be taken, without complying with the post-trial procedural rules set forth in Pa.R.C.P. 1517—1519. We do not agree with this construction.

Section 7532 merely determines that the ultimate “force and effect” of a declaratory judgment shall be no different than any other final judgment or decree. This, however, does not mean that procedural rules have been abrogated in favor of making a declaratory judgment immediately appealable. Appellant’s construction would not only be inconsistent with Pa.R.C.P. 1601(a) which requires “as nearly as may be” the following of the rules in equity in actions for declaratory judgment, but would generally contradict the power vested in the Supreme Court of Pennsylvania “to prescribe the general rules governing the practice, procedure and the conduct of all courts . . . [and] judgments or decrees of any court.” Pa.Const. art. 5, § 10. Although the Supreme Court has no authority to affect the power of the legislature “to determine the jurisdiction of any court,” [262]*262idem, the substance of what constitutes a final judgment, order or decree is a matter of procedural distinction.

In the instant case, while we may construe the lower court’s opinion and order as an adjudication and decree nisi, “. . . the record discloses neither the filing and disposition of exceptions thereto and the subsequent entry of a final decree, nor the entry of the order as a final decree by praecipe after the passage of the time allowed for the filing of exceptions (See Pa.R.C.P. 1518 and 1519).” Taylor v. Butterbaugh, 421 Pa. 10, 11, 218 A.2d 731, 732 (1966). It has been held that “where an action ... is tried before the court without a jury, an appeal does not lie until a court en banc has passed on the exceptions to the trial court’s adjudication or, if none are filed, until the prothonotary enters the adjudication as final.” Slotsky v. Gellar, 455 Pa. 148, 151, 314 A.2d 495, 496 (1974). Since these requirements were not adhered to in this case, the appeal is premature and must be quashed.

Appeal quashed.

WICKERSHAM, J., files a dissenting opinion.

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MONTEMURO, Judge:

Appellant, Judith E. Hertz, brought an action for a declaratory judgment under § 206 of the Divorce Code¹ to adjudicate the validity of her alleged common law marriage with the appellee, Jack F. Hertz. On November 10, 1980 and on December 10, 1980, the lower court heard testimony on the matter and filed an opinion and order on March 2, 1981 declaring that the common law marriage was invalid. No exceptions were filed. On March 27,1981 the appellant filed this appeal from the lower court’s order.

Appellant contends on this appeal that the clear weight of the evidence was contrary to the declaratory order and that the lower court abused its discretion in finding that the parties did not form a common law marriage. We cannot, however, review appellant’s contentions where thére has [261]*261been noncompliance with the appropriate procedural rules applicable in actions for declaratory judgment. Accordingly, the appeal must be quashed.

Pursuant to Pa.R.C.P. 1601(a), the practice and procedure in actions for declaratory judgment must follow “as nearly as may be, the rules governing the Action in Equity,” This requires the lower court to enter an adjudication in accordance with Pa.R.C.P. 1517, the filing of exceptions thereto and subsequent disposition by a court en banc under Pa.R. C.P. 1518, and the entering of a final decree, whether or not exceptions have been filed, as provided by Pa.R.C.P. 1519.

Appellant’s statement of jurisdiction asserts that the appeal is properly before this court pursuant to 42 Pa.C.S.A. § 7532. This Section, in pertinent part, provides as follows:

The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force of a final judgment or decree. (Emphasis added)

Appellant interprets this section to mean that the lower court’s order is a final judgment from which an appeal can be taken, without complying with the post-trial procedural rules set forth in Pa.R.C.P. 1517—1519. We do not agree with this construction.

Section 7532 merely determines that the ultimate “force and effect” of a declaratory judgment shall be no different than any other final judgment or decree. This, however, does not mean that procedural rules have been abrogated in favor of making a declaratory judgment immediately appealable. Appellant’s construction would not only be inconsistent with Pa.R.C.P. 1601(a) which requires “as nearly as may be” the following of the rules in equity in actions for declaratory judgment, but would generally contradict the power vested in the Supreme Court of Pennsylvania “to prescribe the general rules governing the practice, procedure and the conduct of all courts . . . [and] judgments or decrees of any court.” Pa.Const. art. 5, § 10. Although the Supreme Court has no authority to affect the power of the legislature “to determine the jurisdiction of any court,” [262]*262idem, the substance of what constitutes a final judgment, order or decree is a matter of procedural distinction.

In the instant case, while we may construe the lower court’s opinion and order as an adjudication and decree nisi, “. . . the record discloses neither the filing and disposition of exceptions thereto and the subsequent entry of a final decree, nor the entry of the order as a final decree by praecipe after the passage of the time allowed for the filing of exceptions (See Pa.R.C.P. 1518 and 1519).” Taylor v. Butterbaugh, 421 Pa. 10, 11, 218 A.2d 731, 732 (1966). It has been held that “where an action ... is tried before the court without a jury, an appeal does not lie until a court en banc has passed on the exceptions to the trial court’s adjudication or, if none are filed, until the prothonotary enters the adjudication as final.” Slotsky v. Gellar, 455 Pa. 148, 151, 314 A.2d 495, 496 (1974). Since these requirements were not adhered to in this case, the appeal is premature and must be quashed.

Appeal quashed.

WICKERSHAM, J., files a dissenting opinion.

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448 A.2d 626, 302 Pa. Super. 259, 1982 Pa. Super. LEXIS 4726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hertz-v-hertz-pa-1982.

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