*1 Faye OLIVIERI, S. OLIVIERI, Appellant.
Herbert L. Superior Pennsylvania. Court
Sept. *2 Greenberg, Philadelphia, appellant. Charles H. Morrissey, Jr., Philadelphia, appellee. Francis J. *3 WATKINS, JACOBS, Before Judge, President and I-IOFFMAN, CERCONE, PRICE, der and VAN VOORT SPAETH, JJ.
HOFFMAN, Judge:
Appellant contends that not lower court should have stricken his counterclaim for of real es- response appellee’s complaint specific tate filed in to performance post-nuptial property agree- settlement ment.
Appellant appellee August 11, and were married on 1957, and have three minor children. Prior to their 4, 1971, divorce on parties October entered into a agreement September 21, settlement dated agreement spendthrift established a trust over parties’ George’s Road, Philadelphia, home at 752 for the appellee ap- exclusive use and the children until the pellee’s parties remarriage jointly death or or until the agreed property. agreement provided to sell the appellee per- that jointly should retain all of the owned provided property. further would
sonal pay: per of the children dur- week for the $100 minority; per appellee ing their to Until week $50 emancipation of the minor remarriage, death or until the appellant’s payments children increase when would taxes, per week; mortgage payments, estate $100 up bills; utility and bills to a maximum water and sewer school, college private for the $100; tuition for and children; syna- camp three of children’s and cost appellee gogue ; for the and the cost of health insurance children; $100,000 life and the cost of a insurance appellee policy named as bene- with the and children negotiate agreed to the reduction ficiaries. The support payments appellee in that she the event employment, were secure all amendments writing to be modifications would have made parties. signed both July 2, 1975,
Appellee equity Complaint filed a on performance seeking specific property settlement of the $21,408.- judgment in the agreement, and for amount allegedly which was in arrears. Appellant new coun- filed an with matter and answer prop- July 31, signing terclaim on 1975. He admitted erty agreement complaint but de- attached matter, ap- agreement. nied breach In new pellant alleged signed he appellee misrepresented fraudulently because Additionally, ap- gainfully employed. that she pellant alleged appellee conceal her had continued to *4 in earnings negotiate true and to reduction refused a support payments by as the settlement required agreement, appellee’s salary currently $17,500 that was per year, superseded understandings that various had provisions agreement, the the that of payments he is to credit On behalf of entitled for made required by agreement, the children which were not the appellee cooperate appel- allowing that had refused to in dependents to lant the claim children as to and take alimony wife, payments ap- for deduction the to neglected pellee children, appellee had the had attempted appellant, to alienate children and from changed remarriage appellant’s circumstances signing and had since fatherhood occurred agreement. Appellant asked to the court declare the appellant’s fraud, void because to award custody of the appellant, partition children to to and currently occupied by appellee real estate chil- and the dren.
Appellee appel preliminary objections filed to answer, matter, Appellee lant’s new and counterclaim. specific pleadings also demanded more facts certain appellant’s matter, contained in new answer and and ob jected joinder appellant’s parti counterclaims for custody. granted tion and The court below specific pleadings appel motions for struck more and prayed custody1 lant’s counterclaim it insofar as for partition. The court for struck counterclaim “ partition prayer because in for [t]he pleading irrelevancy, unsupported by stant was an aver ments which would constitute cause of It was action. impertinent subject of motion (Footnote omitted). Alternatively, strike.” the court assuming that, arguendo reasoned that the counterclaim properly pleaded, for was joined not be could plaintiff’s with because arise action it did not from the same transaction and because it barred May Lyki 10, the Act of Lykiardopoulos 1927.2 See ardopoulos, 290, Appellant contends the court not should below have stricken Appellant respect does claim with raise court’s striking and, fact, custody; his cause of brought has separate petition corpus habeas Relations Domestic Family Branch Court Division. 10, 1927, § May seq.; May Act of P.L. et P.L. seq.; § seq. § 501 et et 68 P.S.
462 instead, partition, his but, counterclaim for should have granted him leave to amend.3 appellant’s pleadings
We must al- determine whether leged his sufficient facts to motion to strike withstand a prayer the en- for of the real estate owned Secondly, tireties. we must determine whether 1927, May 10, for counterclaim under the Act of complaint specific performance of a to a for agreement. meet It well-settled that counterclaim must a requirements complaint; it must the same formal as a precise summary contain in form the material facts upon which defendant relies to recover counter plaintiff; satisfy claim from the and must all the other requirements complaint, paragraph relating to a such as ing numbering. Pennsylvania Anderson, 10 Civil Pennsylvania Prac (1954); Practice 1510 4 Standard § “ allegation damages or tice 41-44 §§ [A]n prayer damages legally a which are not recoverable pleaded impertinent in in the cause of action matter it is irrelevant to that cause of action. sense that Thus, preliminary objection in the nature of a motion impertinent appear to be to strike off matter would appropriate through challenge means an erron which prayer damages.” Donegal eous Hudock Mutual v. Co., 272-3, 2, Insurance Pa. at n. 264 A.2d at supra, 438 appealability striking appellant’s order counter- 3. The court’s Co., Donegal governed by claim is Hudock v. Mutual Insurance rule, 272, 276, (1970): general 264 A.2d “As a preliminary objections order sustains the nature which complaint judgment dismissing entering without demurrer or otherwise locutory and, terminating therefore, the action between the is inter- appeal- requisite finality lacks the to be an Where, however, does, effect, able order. terminate order parties, pleader the action between the respect or so restricts the with complaint virtually put to further amendment of his litigate, him out court on the action he seeks to it is and, thus, appealable. final order definitive and Sullivan v. Philadelphia, (1954); 378 Pa. A.2d 854 Local No. Watkins, 120, 122, (1965).” Int’l Union etc. 417 Pa. Likewise, totally 671 n. equity prayer for relief *6 unsupported by liti- averments of factual a gant’s may of cause be stricken for lack of con- formity impertinent. Pa.R.C.P.; to law or as Rule 1017(b)(2), Rule Pa.R.C.P. pray question, appellant’s is then, whether
er unsupported by properly pleaded is facts such that a granted. motion to strike would be May 1927, provides: Act of “Whenever hus wife, band acquiring property and as tenants hereafter by entireties, divorced, be hold they shall shall thereafter such property as equal tenants in of common one-half shares and bring value either of suit the them pleas, court of common equity, county sitting in property the where situate, against the other have property proceeds the sold and the divided between them. good
.” action, therefore, A if stated pleadings the parties aver that two who were husband acquired wife certain property described as tenants by parties the entireties subsequently and that the have divorced. Pennsylvania also See Practice Standard (1965). 89-95 §§ practice While better would dictate pleading persons that there are no interest other with an property, in described posses- the property is in the plaintiff sion the defendant, and that there and/or are charges no against estate, encumbrances complaint sufficiently states if con- cause of action tains the essential required of fact Act averments May 10, 1927. See 14 Standard Prac- Pennsylvania tice 95§
In case, appellant’s responsive the instant pleading parties admitted married were once now It prop divorced. admitted existence erty agreement, appel which was attached to complaint lee’s and which the then married described joint property George owners at 752 St.
Road, Philadelphia.
alleged
settle-
ment
signed upon
representations
false
earnings.4 It, therefore, prayed
actual
disposition
agree-
of the property contained in the
ment be set
partitioned.
aside and that
be
Admittedly,
these factual averments are not set out and
organized in accordance with the Rules of Civil Proce-
dure,
they
therefore,
that,
but
hold,
are there. We
be-
cause the
ac-
required
essential averments of fact
appellant’s respon-
tion in
are contained within
pleading,
complaint
sive
is sufficient
to withstand
pursuant
1017(b) (2).
motion to strike
to Rule
must now
coun
We
decide whether
*7
may
joined
terclaim must be stricken
it
not be
because
specific
property
performance
with an action for
of a
may
objection
be
agreement.
Preliminary
settlement
join
improperly
seeks
filed to a counterclaim which
Pa.R.C.P.,
1510,
two
more
or
causes of action. Rule
Pa.R.C.P.,
Rule
1509,
1017(b) (5),
Rule
Rule
Pa.R.C.P.5
separation agreements
husband
between
It is well-settled that
they
specifically
are
if
are valid and will be
enforced
wife
reasonable,
coercion,
or
and have
entered into without fraud
are
actually
good
been
carried into effect in
faith. Commonwealth
McClenen,
471,
Pa.Super.
465 1510(a) provides part: in relevant “A defendant plead action, only as a counterclaim whether equitable legal, arises from the transac- which same tion or occurrence or series of or occur- transactions plaintiff’s rences from which the of action arose. cause Goodrich-Amram, 1510(a); .” Brenner v. See § Sukenik, (1963); 410 Pa. Schomaker Schomaker, 247 A. specific
In per- the instant case, claim disputed property formance arose from the agreement. Appellant sought declaration agreement fraudulently is void because it was induced. Appellant’s claim, therefore, clearly from the same arises transaction or agreement If occurrence. is declared void, disposition jointly-owned con- tained in the is likewise void subject-matter action. are, however, There special governing rules counter- involving claims the Act actions. Section May 10, amended, pro- P.L. 68 P.S. § proceeds vides: any “The provi- sale had under the sions of this act . . . equally shall be divided be- parties, tween the subject however, to the deduction therefrom of the amount of lien entered of record jointly against respective parties both of the *8 and any the amount of against liens entered of record either of such . . . shall be deducted from party against the share of the whom lien such is filed . .” Lykiardopoulos In Lykiardopoulos, supra, v. appellant sought support to set off child support, for her- during self the pendency proceedings, of divorce and money spent acquiring preserving in property and the against partition brought by her former hus- band. The court refused allow to of these counter- law, claims: “At property common which was held tenancy by during the marriage entireties remained en- property tireties O’Malley even after divorce. v. 466 528,
O’Malley, (1922). 272 Pa. 500 The 116 A. Act tenancy amended, May of converts a as which by tenancy the entireties a di into a in common after property, party vorce and either permits the strictly derogation is in common law must be the 591, 594, Lazare, construed. Lazare 365 A.2d v. 76 Pa. provides 190 the While the satisfaction Act liens, provision of all recorded there the is no Act permit appellant charge will unliquidat which the against ed unrecorded claims proceeds. provides share of the The for the pay statute parti proceeds ment recorded liens out of they only charges permissible. See, tion sale and are C,P. g., Leavy (Lycoming e. Leavy, v. 16 D. & C.2d Ct.1958); (Phila. Wilson, Wilson v. D. & C.2d C.P.Ct.1955).” Lykiardopoulos Lykiardopoulos, su pra, 294, 309 at at A.2d distinguishable Lykiardo- instant case from poulos. Appellant against appel- does not seek a off set estate; lee’s he equal share division seeks property required by as the Act if the court deter- by is not controlled mines agreement. Act, therefore, not bar does appellant’s counterclaim. hold, therefore, responsive plead-
We that appellant’s ing proper states a sufficient counterclaim withstand However, recognize a motion to strike. we that because appellant’s required claim was not set in the form out Procedure, Rules of it Civil would be unfair re- appellee pjead quire that to the counterclaim in its pres- Therefore, require ent form. we would be leave to to make it granted amend counterclaim more definite and to conform it to Rules governing pleadings. the form of of the lower
Order court reversed insofar counterclaim struck and leave
467 granted to amend pleadings. In all oth- respects er the order of the lower court is affirmed.
SPAETH, J., opinion dissenting files a in which JA- COBS, J., joins. Judge
SPAETH, (dissenting): disagree points: I on both I find no counterclaim for partition; did, and if I 1 improper. should strike it as -1- paragraphs consists through “Counterclaim” 46 Paragraph “incorporates para- 46 reference graphs through 1 20 paragraphs of the Answer and 21 through 45 of though New Matter fully as same were set forth Paragraphs therein.” allege through 47 49 appellee ways has in various for the not cared parties’ children, and that she has denied “requested custody.” Paragraphs through allege 52 50 appellee ways has in “deceitfully various and fraud- ulently” complied separation agreement. with the There prayer: then follows this
WHEREFORE, respectfully prays defendant the Honorable Court September Declare the 1971
null, void and terminated. custody
2. Award of the children to defendant. 3. Order jointly owned real estate at George’s Road, 752 Philadelphia, Pennsylvania. St. prayer against When this allegations pre- is read it, ceding following apparent: para- Arguably, graphs through pertain prayer to the agreement be declared null and void, paragraphs through prayer custody. 49 to the only para- graph possibly left pertaining parti- prayer to the *10 except “in- paragraph nothing
tion is but that does corporate mat- by new reference” the answer entire ter. hardly re-
We form substance” when we “exalt over slight quire recognition ma- some the rule that “[t]he based terial facts on which a of action or is cause defense Pa.R, summary shall be form.” stated in a concise incorporates 1019(a), for- Here, Civ.P. ty-five paragraphs forty-sixth. respect to into a With eight forty-five, the lower court sustain- appellee’s preliminary objection ed mo- in the form of a majority specific pleading. tion for more neverthe- holds that a cause of action in has been less pleaded. application of the my view, is not a
In liberal this application at all. is no rules. Pa.R.Civ.P. pleading is the notice practice where Even- federal may allegation to he rule, party which entitled is respond. nothing respond There Here, to. there is answer, single is reference to the estate not a matter, except for an the new and neither is there in alleges oblique paragraph which allusion agreed that “[pjlaintiff and defendant understood and pay- principal by mortgage amortized one-half by alimony ments defendant would made considered be payments except plaintiff.” nothing is There jointly “[ojrder partition prayer court Philadelphia, Road, George’s owned at 752 St. real estate respond prayer, to a es- Pennsylvania.” does not One single allega- prayer unsupported pecially not to a allegation is concern- of fact tion of far as fact. So any real appear still own ed, it does partitioned. estate be -2- the same must arise “from transaction
A counterclaim or series transactions occurrences or occurrence plaintiff’s from which the cause of action arose.” Pa.R. 1510(a). says Civ.P. majority counterclaim
clearly arises from the same transaction or occur- agreement If the void, rence. disposi- is declared jointly-owned tion of the property contained in the is likewise prop- void and the is erly subject-matter action.
At 365. non, reasoning represents
This sequitur. If A true (agreement void), sure, then, to be B also true be *11 (provisions agreement in concerning property void). are follow, does not however, that A and B arise from the transaction, same may by changing be seen the iden- tification of If (agreement B. A is true void), then B may (provisions also be true in concerning custody of however, void). it, children are I take majority agrees that the lower court appellant’s held custody improper. counterclaim for Similarly, if (agreement A is void), true then B (provisions also be true agreement concerning sup- in port void). it, wife are I take however, that ma- jority agree would if in his had included counterclaim regarding support, a claim the counter- improper. claim would be majority
Nor does authority cite for its con- clusion, undertaking only distinguish Lykiardopoulos Lykiardopoulos, v. (1973). Pa. I submit, however, controlling. There, that case is divorce, after a the former wife husband sued the former partition, sup- in and the former wife counterclaimed for port for herself and her children. The court or- below improper. dered but the counterclaim Af- held firming, Supreme said: Court
Concerning the former claim [the wife’s] children, for for herself her minor personal holding these below was correct
court appellee considered as obligations cannot be partition proceedings in this case. part of the at Id. at 309 A.2d closely point Brenner v. Su- are so but similar
Not
(1963), and Schomaker
A.2d 246
kenik, 410
In Bren-
Schomaker,
444,
Since the defendant support, the counterclaim of savings ownership account of the regarding the true wife-plaintiff could ob- germane in that was not support from the whether tain husband’s entireties or wheth- by the was held them as tenants the sole owner er the husband was . . . . omitted]. [citation supra 248-249. Sukenik, at 189 A.2d at Brenner v. equity to recover sued in In Schomaker a husband (filed property, separate wife counterclaimed and his *12 keep “cross-bill”) requiring her for a decree husband pay her fixed allowance alleged agreement cross-bill on her real estate. The well as certain taxes “ entirely ‘questions dis- present . . . held ” original . . presented . tinct from those in the bill Schomaker, supra A. at 461. at Schomaker v. compel complaint appellee By seeks to So here. payments promised allegedly to make various pri- (e. g., support, payments to related Shield, tuition, medical Blue school Blue vate Cross alie- premiums); no life she makes bills, and insurance respect any gation with prays nor relief personam entirely distinct, These in estate. claims are arise, statutory, and do not rem, from partition. claim for
The order of the lower court should be affirmed. J.,
JACOBS, joins opinion. in this Pennsylvania COMMONWEALTH of JONES, Appellant. Charles O. Pennsylvania.
Superior Court Submitted March Sept.
Decided