25 A.2d 111 | Pa. Super. Ct. | 1941
Lead Opinion
KENWORTHEY, J., filed a dissenting opinion. *566
Argued October 7, 1941. This was a petition for a declaratory judgment filed under the provisions of the Act of June 18, 1923, P.L. 840, as amended by the Act of April 25, 1935, P.L. 72 and supplemented by the Act of May 22, 1935, P.L. 228.
The defendants, without replying to the averments of fact, raised certain preliminary questions of law, under section 5 of the supplemental act, objecting to the legal right of the petitioner to have the disputed matters averred in the petition disposed of by a declaratory judgment. In so doing, they admitted — but only for the purpose of disposing of said preliminary objections — the truth of all the averments of fact in the petition. See West v. Young,
The court below sustained the preliminary objections and dismissed the petition. The petitioner appealed.
The original petition was filed December 23, 1937 and *567 was served personally on both defendants in Philadelphia on December 24, 1937. Following the sustaining of preliminary objections to this petition on June 20, 1940, the petitioner, on July 5, 1940, was granted a rule to show cause why leave should not be given him to file an amended petition, which, following a stipulation and agreement of counsel filed July 25, 1940, was made absolute on October 10, 1940 and on the same day the amended petition was filed.
Stated as briefly as feasible for a proper understanding of the matter, it averred that the petitioner is and always has been a citizen of Pennsylvania residing in Philadelphia; that the defendant Helen B. Melnick, (hereinafter called Helen), for fifteen years prior to August 1931, was a citizen of Pennsylvania residing in Philadelphia; that on June 7, 1923 petitioner and the said Helen were married in Philadelphia, and thereafter were domiciled and continuously lived together as husband and wife in Philadelphia until May 11, 1929, when she forced petitioner's withdrawal from their common home, and from that date until April 16, 1931, she lived at their former common home, separate from the petitioner, and refused to resume marital relations with him; that the said Helen went to the City of Reno, Nevada, for the purpose of obtaining a divorce from the petitioner, arriving there on April 16, 1931, and on May 29, 1931, precisely six weeks thereafter — that being the shortest required residence necessary in Nevada — she filed an application for divorce from petitioner in the Second Judicial District of Nevada, in and for the County of Washoe, on which she was granted a decree of absolute divorce from petitioner on July 20, 1931; that petitioner was never in the State of Nevada, was not lawfully served with any summons or process in said divorce proceeding, did not appear therein, nor authorize any person or attorney to appear for him therein; that on the same day the divorce was granted, and immediately following it, said Helen entered into *568 a purported marriage with the other defendant, Samuel B. Rosenbaum, in Reno, Nevada, and the same day they left the State of Nevada and went to New Haven, Connecticut, where they have since unlawfully lived and cohabited as husband and wife.
The petitioner averred the lack of jurisdiction of the State of Nevada to enter said decree of divorce against him, and that said decree is not and never was such judgment as entitles it to recognition in this State. He also 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, to which he has never consented, but at all times has challenged the legality thereof; which we do not deem it necessary to recite at length, otherwise than that he alleged, in support of the averment that he had always challenged the validity of said Nevada decree, that he had brought an action of trespass on May 26, 1932 against the said Samuel B. Rosenbaum to March Term 1932, No. 4070, Common Pleas No. 1 of Philadelphia County, for criminal conversation with petitioner's wife, Helen. And he prayed for a declaratory judgment adjudging that the aforesaid decree of divorce obtained in Nevada on July 20, 1931, be declared colorable and invalid and that it did not dissolve the marriage relation between the petitioner and the defendant, Helen.
The preliminary objections filed by the defendants may be summarized as follows:
1. The petition fails to aver any property rights, real or personal, at issue.
2. No actual or imminent controversy between petitioner and defendants is averred.
3. Lack of jurisdiction in the court under the Declaratory Judgment Act.
4. The petitioner seeks to have the marriage of defendants annulled and declared void.
5. The decree prayed for will not terminate any *569 controversy between the parties, but may give rise to further litigation.
6. The court in the exercise of its discretion should refuse to take jurisdiction.
7. The petitioner shows that he was guilty of laches.
8. He is using this means for the purpose of harassing, annoying and vilifying the defendants and without any concrete interest in the outcome of the controversy.
9. It was conclusively held in Link B. L. Assn. to use ofSamuel Melnick v. Helen B. Melnick, 285 [325] Pa. 182, that petitioner has no property rights by virtue of any status he may claim toward defendant, Helen B. Rosenbaum.
The grounds assigned by the court for sustaining the preliminary objections filed by defendants were:
1. The laches or delay of petitioner in bringing the proceeding.
2. That petitioner had already instituted an action at law — the action of trespass against Samuel B. Rosenbaum — in which the issues between the parties could be determined without resort to proceedings for a declaratory judgment.
3. The petitioner does not set forth that he contemplates any action for which he needs clarification of the situation.
4. Nor does he set forth that any personal or property rights are involved or are in any way hampered at this time.
5. There does not appear to be any controversy or the ripening seeds of any controversy.
6. A declaratory judgment under these circumstances would amount to nothing more than an advisory opinion.1 *570
We are of opinion that the grounds specified by the court were not legally sufficient to sustain the preliminary objections of the defendants, and that the objections should have been overruled and the defendants directed to answer the petition on the merits.
The original `Uniform Declaratory Judgment Act' of 1923 provides (sec. 1) that "Courts of record, within their respective jurisdictions, shall have power to declare rights, status, andother legal relations whether or not further relief is or could be claimed," (Italics supplied); and in section 12, "Construction. This act is declared to be remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered."
Section 6 of that act, which read as follows: "Discretionary. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding" was amended by the Act of April 25, 1935, P.L. 72, by striking out all of the section except the heading, `Discretionary,' and substituting an entirely new section.
It will be noted that neither the original act, nor the amendment gives the court discretion2 — in the meaning *571 of `freedom to act or decide' — as to whether it may render or refuse to render a declaratory judgment. The original act merely authorized the court to refuse to render a judgment, where such judgment would not terminate the controversy or uncertainty giving rise to the proceeding. That has been repealed and the amendment, in positive rather than negative form, declares that relief by declaratory judgment may3 be granted in all civil cases where (1) an actual controversy exists between contending parties; or (2) the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or (3) the court is satisfied that a party asserts a legal relation, status,4 right or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is also satisfied that a declaratory judgment will serve to terminate the uncertainty, or controversy, giving rise to the proceeding.
It then proceeds: "Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is *572 susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not deter a party from obtaining a declaratory judgment or decree in any case where the other essentials to such relief are present,5 but the case is not ripe for relief by way of such common law remedy or extraordinary legal remedy, or where the party asserting the claim, relation, status, right, or privilege and who might bring action thereon, refrains from pressing any of the last mentioned remedies. Nothing herein provided is intended to or should limit or restrict the general powers or jurisdiction conferred by the act here amended; but proceeding by declaratory judgment shall not be permitted where a divorce or annulment of marriage is sought."
It will be noted that, under the amendment of 1935, supra, relief by declaratory judgment may be granted where any of the three conditions above set forth exists. They do not have to concur. The conjunction used is `or.' Therefore, if the court is satisfied that one party asserts a legal relation, status, right or privilege, in which he has a concrete interest, and that there is a challenge or denial of such asserted relation, status, right or privilege by an adversary party, who also has a concrete interest therein, either party may ask for a declaratory judgment, without showing that "antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation," provided only, that a declaratory judgment will serve to terminate the controversy, or uncertainty, giving rise to the proceeding.
No other statute in Pennsylvania provides a special form of remedy for the specific type of case presented *573
here, hence the rest of the section above recited is inapplicable to limit or restrict the general power and jurisdiction conferred by the act. The clause forbidding the use of the statute to procure a divorce or annulment of marriage6 means that a party cannot seek a divorce, or an annulment of his or her marriage, from his or her spouse, by a declaratory judgment, (McCalmont v.McCalmont,
There can be no doubt that an actual controversy exists between the petitioner and the defendants. He asserts that Helen is his wife. She and her co-defendant contend that she is not; that that relation was dissolved by the decree of the Nevada court, and that they, the defendants, are now husband and wife. The facts averred in the petition and admitted for the purposes of this appeal by filing the answer raising questions of law, furnish support for appellant's contention that the Nevada decree was null and void as against him and ineffective to destroy the marriage relation existing between him and Helen when it was entered: Reel v. Elder,
`Concrete' is defined by Webster to mean, "Belonging to actual things or events; real; not abstract, ideal or general; specific in application, particular — opposed to abstract or general." And as synonyms of Special: "Specific implies precise or explicit designation; concrete adds the implication of actual existence or embodiment." One who establishes the status or relation of marriage with another has a concrete interest in the continuance of such relation or status. It does not have to be a financial or property interest. A husband may defend his marital status or relation against a suit for its dissolution by divorce, although his wife has no property at all and his financial interests might be served by the divorce. Hence the plaintiff, having shown that he was married to Helen and asserted the existence of that marital relation or status as over against a decree of divorce obtained in Nevada, without legal service upon him, or his presence in said state, or appearance, or representation in said divorce proceeding, has a concrete interest in the affirming of the maintenance of that legal relation or status; and, the defendants, asserting its dissolution by the Nevada decree of divorce have a concrete interest in denying the maintenance and existence of that relation or status. This, under the amending statute of 1935 entitled the petitioner to ask for a declaratory judgment establishing the continued existence of that legal relation or status, provided only such declaratory judgment will serve to terminate the controversy giving rise to the proceeding. It does not have to satisfy the parties or restore marital harmony. We are satisfied that a declaratory judgment in the present proceeding will settle the disputed marital status between the petitioner and Helen and thus terminate the present controversy. There is no requirement in the statute that it shall settle all issues *575 between the parties. In fact, we know of no other proceeding, open to the petitioner, in this Commonwealth in which the legal status of the parties can be settled and determined during the lifetime of both parties, while they are both able and competent to testify fully. The petitioner might, it is true, bring an action of divorce in Pennsylvania, and secure a decree severing the marital relation, but he does not want that. He desires its maintenance and continuance as a legal relation. He cannot compel his wife to live and cohabit with him, but, if her alleged marriage with the other defendant is null and void in Pennsylvania, her husband should have the right to have it so declared in a judicial proceeding, during his and her lifetime rather than wait until the death of one of them, whose mouth is closed and who is unable to testify.
All persons involved in the present issue are parties in court. In Lockwood v. Lockwood,
The Court of Common Pleas of Allegheny County, speaking through Judge EGAN, rightly understood and applied our opinion in that case in Lansinger v. Lansinger, 26 Pa. D. C. 701, 703-4, where in a proceeding similar to this one, preliminary objections filed by the defendants raising questions of law along the lines advanced by the defendants in this case were decided *576 against them and they were directed to answer on the merits. See also Lansinger v. Lansinger, 30 Pa. D. C. 291 (RIMER, P.J. 18th Dist. S.P.) where a declaratory judgment was entered in the same case, adjudging that the decree of divorce obtained by the defendant, Earl F. Lansinger, in Washoe County, Nevada, purporting to divorce him from the bonds of matrimony with the plaintiff, Verna P. Lansinger, was invalid in Pennsylvania and did not dissolve the marriage relation between them. We are in substantial accord with the rulings in those cases.
Declaratory judgment proceedings have been upheld in other jurisdictions, as a proper remedy in like or similar circumstances.
In Baumann v. Baumann,
In Somberg v. Somberg,
In Lowe v. Lowe,
The case of Baumann v. Baumann, supra, has been consistently followed by the Supreme Court and its Appellate Division. SeePerrin v. Perrin,
In Mills v. Mills,
In New Jersey, where the Court of Chancery has general
jurisdiction in equity — not possessed by our courts of common pleas, beyond the matters specially committed to them by statute as courts of equity: Act of June 16, 1836, P.L. 784, sec. 13, etc.; 13 Standard Pennsylvania Practice, chap. 68, Enforcement of Real Property Mortgages, § 4, p. 581; Peoples-Pittsburgh TrustCo. v. Henshaw,
In Miller v. Currie,
We are of opinion that the petitioner was not guilty of laches such as to deprive him of his right to a judgment declaring his marital status. There is no statute of limitations, or presumption of discharge, as to marital status or the marriage relation. In Cline's Est.,
The defendants in the present case were not residents of Pennsylvania. Service of process could not legally be made on them in Connecticut. The personal service on them — on both of them — necessary to give our courts jurisdiction, could only be made in Pennsylvania. Service on one of them would not be sufficient to give the court jurisdiction: Lockwood v. Lockwood, supra. There is nothing in the record to show that opportunity for such personal service on both existed before this proceeding was brought, or that the defendants were prejudiced0 *581 by the delay, even though caused by their non-residence in Pennsylvania. The trespass action against Rosenbaum will not adjudicate petitioner's marital status with the other defendant so as to bind her, for she is not a party to it. Grounds for such action may have existed before the Nevada divorce and a judgment in the petitioner's favor in that action would not settle the question of his marital status. On the other hand, a declaratory judgment adjudicating such status would settle their marital status. In no sense would it be merely advisory.
We have paid no attention to the reasons advanced by the defendants which are based on matters dehors the petition, for such matters cannot be considered on an answer raising preliminary questions of law, which must be limited to the averments contained in the petition and not introduce matters of defense on the merits. The proceeding is similar to a demurrer and may not be the equivalent of a `speaking demurrer.'
All of the Pennsylvania authorities relied on by the court below and the defendants, except four,7 were cases dealing with the Declaratory Judgment Act of 1923 before its enlargement and liberalization by the Amendment and Supplement of 1935; and none of those four dealt with any matters remotely resembling this case. In Allegheny County v. Equitable Gas Co.,
This case deals with matters within the scope of the enlarged powers given the court by the amending and supplementary acts, and, in our judgment, the opinion is in accord with the broad and liberal general principles laid down in Kariher's Petition (No. 1),
The assignment of error is sustained. The order of the court below is reversed, and the record is ordered to be remanded to the court below, with leave to the defendants to file an answer to the averments of fact within fifteen days after the return of the record to that court, and further proceedings therein as prescribed by the Supplemental Act of 1935, P.L. 228.
Dissenting Opinion
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. *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 *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.