Zlotziver v. Zlotziver

58 A.2d 334, 359 Pa. 84, 1948 Pa. LEXIS 363

• Court: Supreme Court of Pennsylvania
• Decided: March 25, 1948
• Docket: Appeal, 50
• Status: Published

Opinion

Per Curiam,

This case appears to involve a continuation of the difficulties between husband and wife that were considered in Zlotziver v. Zlotziver, 355 Pa. 299, 49 A. 2d 779, although now the parties are reversed. The husband, who was defendant in that case, is the plaintiff in this. After our order made in that case was received in the court below, differences concerning compliance arose and ultimately the present suit was brought. The husband filed this bill alleging facts said to justify equitable relief, inter alia (1) a decree now declaring their agreement null and void; (2) requiring the wife to reconvey certain premises, retransfer the truck, and do various other things which need not now be specified. To that bill, the defendant wife filed a petition pursuant to the Act of March 5, 1925, P. L. 23, 12 PS 672, asserting that the court “does not have jurisdiction over defendant or of the cause of action . . .” The court below, in an opinion by Judge Marshall, dismissed tlie bill on the ground that “the relief sought are res adjudicata and the court has no jurisdiction.”

This is just another case to be added to the long list of cases misapplying the Act relied on by the petitioning defendant. The statute confers equitable jurisdiction on the common pleas. The bill avers facts which, if established, entitle the plaintiff to equitable relief. The docket entries state that proof of service of the bill was filed. The power of the common pleas to enter upon the inquiry is complete: Colflesh v. Provident Trust Company, 317 Pa. 46,176 A. 433; Zerbe Township School District v. Thomas, 353 Pa. 162, 165, 44 A. 2d 566, and cases there cited.

The order granting the motion to dismiss for want of jurisdiction is reversed; the bill is reinstated and the record is remitted for further proceedings; costs to abide the event.