Teresea Alper RUPEL v. Ronald BLUESTEIN, Esquire, Appellant.
Superior Court of Pennsylvania.
July 25, 1980.
421 A.2d 406
SPAETH, Judge
Argued Sept. 12, 1979.
As we have discussed, the husband‘s appeal is not an appeal that lies either as of right or, after certification, by permission.
(e) Emergency appeals. Where the exigency of the case is such as to impel an immediate appeal and the party intending to appeal an adverse action is unable to sеcure the formal entry of an appealable order pursuant to the usual procedures, the party may file in the lower court and serve a praecipe for entry of an appealable order for the purposes of these rules. The interlocutory or final nature of the action shall not be affected by this subdivision. (Emphasis added.)
Thus, an order that is not appealable because it is interlocutory is not converted into an appealable order simply because an adverse order is issued pursuant to
The appeal is quashed.
Albert Momjian, Philadelphia, for appellee.
Before SPAETH, HESTER and CAVANAUGH, JJ.
SPAETH, Judge:
This appeal arises from an order granting appellee‘s petition for a preliminary injunction.
On September 25, 1978, appellee filed a complaint in equity alleging that by order of an Indiana court she had been given custody оf her two children; that her ex-husband had abducted her children from her custody; and that appellant knew her ex-husband‘s whereabouts and was aiding him in fleeing from legal authority. The complaint requested, among other things, that appellant be compelled to disclose to appellee her ex-husband‘s location. Also on September 25, appellee filed an ex parte petition for a preliminary injunction, which the lower court granted the same day. The lower court‘s order stated:
...
Defendant, Ronald Bluestein, Esquire, is hereby restrained and enjoined from informing [appellee‘s husband], his agents, servants or employees, in any manner whatsoever, whether directly or indirectly, whether by himself or through his agents, servants or employees, as to the institution of these procеedings or the pendency thereof.
I
Does the lower court have jurisdiction to entertain this action?
Appellant argues that the lower court lacks jurisdiction to entertain appellee‘s action because the sole objective of the action is to obtain discovery from appellant, and no other action is at present pending in the Pennsylvania courts to which the discovery could be relevant. See Cole v. Wells, 406 Pa. 81, 177 A.2d 77 (1962); see also T. C. R. Realty Co. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Einhorn v. Phila. Electric Co., 410 Pa. 630, 190 A.2d 569 (1963).
There can be no doubt that appellee had the right to invoke the Uniform Child Custody Jurisdiction Act,
The courts of this State shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory prоvisions substantially in accordance with this act or which was made under factual circumstances meeting the jurisdictional standards of the act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this act.
Section 2316(a) provides:
A certified copy of a custody decree of another state whose decrees are recognized under section 14 may be filed in the office of the prothonotary of any court of common pleas of this State. The prothonotary shall treat the decree in the same manner as a custody decree of the court of common pleas of this State. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rеndered by a court of this State.
Section 2321(a) provides:
Upon request of the court of another state the courts of this State which are competent to hear custody matters may order a person in this State to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in this State or may order social studies to be made for use in a custody proceeding in another state. A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced, any psychological studies and any social studies prepared shall be forwarded to the requesting court.
Appellee‘s counsel, for reasons best known to himself, apparently has not invoked these provisions. There is no evidence of record that a certified copy of the Indiana custody decree has been filed with the prothonotary of the lower court pursuant to
A
It is difficult to believe that the drafters of the Uniform Child Custody Jurisdiction Act intended the act to be the exclusive remedy for a parent who is trying to regain the custody of children who have been abducted by the other parent. Section 2302(a) of the act provides:
The general purposes of this act are to:
* * * * * *
(5) deter abductions and other unilateral removals of children undertaken to obtain custody awards;
* * * * * *
(7) facilitate the enforcement of custody decrees of other states:
(8) promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child ....
Subsection (b) of the same provision states:
This act shall be construed to promote the general purрoses stated in this section.3
The act does not state that it is to be the exclusive remedy to regain custody of abducted children, nor does there appear to be any public policy that would justify such a limitation. In other cases courts have recognized that in creating a statutory remedy the Legislature does not always intend to displace traditional equitable remedies, but sometimes intends to make the statutory remedy permissive or alternative only. E. g., DeLuca v. Buckeye Coal Co., 463 Pa. 513, 345 A.2d 637 (1975). Here, the Legislature must have intended the remedies provided by the act to be alternative, and thus cumulative, to the traditional equitable remedies, for that would be the best way to achieve its general purposes of “deter[ring] abductions” and “facilitat[ing] the enforcement of custody decrees of other states.”
B
This conclusion reached, the question becomes whether appellee‘s action is maintainable under the principles governing traditional actions in equity.
Appellee‘s complaint alleges that appellant “has knowingly counseled [appellee‘s ex-husband] in the commission of a felony, to wit: child stealing, and continues to knowingly aid and abet [appellee‘s ex-husband] in the commission of a crime and in the violation of court orders of the State of Indiana.” These allegations have not been proved, but if proved, the conduct they describe is the sort of wrongful conduct that a court in equity is competent to enjoin. Indeed, the jurisdiction of the lower court would be established even without allegations of abetting the commission of a crime and the violation of court orders. In an analogous area the Supreme Court has held that an action in equity will lie to enjoin wrongful interference by third
It should also be noted that appellant‘s assertion that appellee‘s complaint asks only for discovery of the whereabouts of appellee‘s ex-husband and children is inaccurate. The complaint asks not only for discovery, but for general equitable relief. General relief certainly could encompass, upon adequate proof, restraints on appellant to prevent his abridgement of appellee‘s custody rights in any way whatsoever.
II
Did appellee demonstrate her right to a preliminary injunction?
Appellant argues that the procedure followed by counsel for appellee was defective in two rеspects: the complaint was improperly verified, see
The defects were not jurisdictional. Verification is required only for the protection of the parties. Monroe Contract Corp. v. Harrison Square, Inc., 266 Pa.Super. 549, 557, 405 A.2d 954, 959 n. 5 (1979). Moreover, the petition for a preliminary injunction did not have to be verified because it did not contain allegations of fact, but merely incorporated the allegations of the complaint and alleged that immediate and irreparable harm would result if appellant communicated with appellee‘s ex-husband regarding the institution or pendency of the action. See
The question remains, however, whether the lower court should have issued a preliminary injunction even though it had the power—jurisdiction—to do so.
Here the complaint was not verified by appellee, but by her attorney as follows:
ALBERT MOMJIAN, being duly sworn according to law, deposes and says that he is one of the attorneys representing plaintiff in the instant action, that he is authorized to take this Affidavit on behalf of plaintiff as set forth in a certain Affidavit of Authorization given by plaintiff and dated July 28, 1978 and attached hereto, and that the facts set forth in the within Complaint in Equity are true and correct to the best of his knowledge, information and belief.
As appellant points out, this verification was defective in two respects: It did not state why appellee was unable to verify the complaint herself; and it did not state the source of counsel‘s information as to matters not stated upon counsel‘s own knowledge.
Improper verification of a complaint may not be brushed aside as a mere “legal technicality,” cf. Madigan Appeal, 434 Pa. 361, 367, 253 A.2d 271, 274 (1969), and may result in the waiver of rights by the pleader. Warren v. Williams, 370 Pa. 380, 88 A.2d 406 (1952).
In Monroe Contract Corp. v. Harrison Square, Inc., supra, counsel‘s verification stated that his client “lacked sufficient knowledge to make verification” but did not state that the client also “lacked sufficient information.” We held that although “counsel may verify only in those cases in which the conditions delineated in Rule 1024 are present,” counsel‘s error was de minimis error, and that the petition in question should not be dismissed. Similarly, in Safeguard Invest. Co. v. Davis, 239 Pa.Super. 300, 361 A.2d 893 (1976), where appellant‘s attorney improperly verified a petition to open a confessed judgment entered on one of two mortgage bonds, we held that the defect was inconsequential because appellant had proрerly verified a second petition to open the confessed judgment that had been entered on the other mortgage bond.
Were we presented with the issue of whether the improper verification required dismissal of the complaint, we might well be reluctant to dismiss. Appellee‘s affidavit authorizing her counsel to act on her behalf is attached to the complaint. The affidavit states that appellee is the mother of two children, that her ex-husband has removed the children from Indiana and secreted himself and the children from her, that the whereabouts of her ex-husband and the
It is well-established that in order to receive the benefit of a preliminary injunction appellee was required to demonstrate 1) that her right to relief was clear; 2) that her need for relief was immediate; 3) that her potential injury was irreparable; and 4) that she had no adequate remedy at law. E. g., Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978); Safeguard Mutual Ins. Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975); Roberts v. School Dist. of Scranton, 462 Pa. 464, 341 A.2d 475 (1975); Berman v. Philadelphia, 425 Pa. 13, 228 A.2d 189 (1967); Wolf v. Baltimore, 250 Pa.Super. 230, 378 A.2d 911 (1977). This demonstration could have consisted of “the averments of the pleadings or petition ... [,] affidavits ... [,] or any other proof which the court may require.”
In permitting a preliminary injunction to issue solely upon the averments in a complaint, the present rules of civil
One of the major changes in practice effected by these Rules is the elimination of affidavits as a condition precedent to the issuance of a preliminary injunction. Subdivision (a) of Rule 1531 eliminates entirely any mandatory requirement that any affidavit need be filed as a condition precedent to the grant of any type of injunction. The plaintiff‘s initial pleading, or his petition for a preliminary injunction, will be verified in every case. This verification will give the sanction of an oath to the plaintiff‘s papers. Supporting affidavits furnish no more guarantee of the truth of the plaintiff‘s position than his sworn complaint or petition.
Further, the real protection to the defendant is not the possible penalty for perjury in making a false affidavit; it is the bond which the plaintiff must file under subdivision (b) of Rule 1531. Accordingly, subdivision (a) of Rule 1531 permits the court to grant a preliminary or special injunction, whether with or without notice, on the basis of “the averments of the pleadings” or of “such proof” as the court may require. Under this flexible standard, affidavits of the parties or of third persons have been made optional. The plaintiff may file affidavits if he wishes and the court may demand further supporting proof if it wishes. But the obligatory affidavit requirements of former Equity Rule 38 have been removed entirely.
Under former equity practice a preliminary injunction would not issue unless persons other than the plaintiff supported the averments in the bill with their own affidavits and these were filed with the court. The former Equity Rules did not indicate how many should be filed, but there were numerous instances in which the court refused to grant the preliminary injunction because only one affidavit had been filed. Two or more were usually required.
In addition, a special affidavit was required if an ex parte injunction was to be entered prior to any preliminary
hearing. This affidavit, which could be executed by the plaintiff, was for the purpose of certifying that irreparable loss or damage would result to plaintiff unless the injunction was issued immediately.
5 Goodrich-Amram 2d § 1531(a):3 at 269-70 (footnotes omitted).
See also 8 Stand.Pa.Prac.—Ch. 36 §§ 93-99 (1961).7
As this statement makes clear, the premise upon which the evidentiary requirements for the issuance of a preliminary injunction have been liberalized is that an injunction still may not issue without some sworn evidence justifying the issuance. It is easy to understand this insistence on sworn evidence; it represents a necessary precaution to ensure that the extraordinary powers of a court of equity
Here, it cannot be maintained that all essential prerequisites to the issuance of a preliminary injunction were met. As already mentioned, the lower court received no testimony at all—although no reаson appears why appellee could not have appeared before the court. The only sworn statements by appellee presented to the court were that her two children had been taken from Indiana by her ex-husband and secreted from her, and that appellant has information concerning the whereabouts of the ex-husband and the children. There were no averments that in removing the children her ex-husband had committed an unlawful act, or that her custody rights in the children had been violated, or that she otherwise had a right to have the children. The complaint, of course, purported to establish these matters, but the complaint was not sworn to by appellee but was improperly verified by appellee‘s attorney, and none of the exhibits attached to the complaint, except perhaps one,8 was certified or otherwise authenticated.
This insistence upon at least a properly verified complaint may seem “technical,” but no apology need be made for that. The rules are clear, and their requirements easily satisfied. Appellee‘s violation of the rules—more accurately, her coun-
The order of the lower court is reversed, the preliminary injunction dissolved, and the case remanded for further proceedings.9
CAVANAUGH, J., concurs in the result.
HESTER, J., files a dissenting opinion.
HESTER, Judge, dissenting:
This bizarre case is presently before the court on appeal by Ronald Bluestein, attorney, from the issuance of a temporary restraining order and special injunction dated September 25, 1978 and continued in full force and effect by order dated September 28, 1978, subsequently reissued on October 6, 1978 аnd again continued in full force and effect by agreement of the parties and their counsel by order dated October 11, 1978.
The grant of appellee‘s request for injunctive relief which is the subject matter of the instant appeal accompanied the filing of a complaint in equity wherein the appellee has sought primarily:
(a) to enjoin appellant-attorney, his agents, servants or employees, in any manner whatsoever whether directly or indirectly; the fact that the instant proceeding has been brought or that the instant proceedings are pending; and
(b) to order appellant-attorney to reveal to appellee any and all information which he may have concerning the present whereabouts of Alper and/or the children and thе whereabouts of Alper and/or the children for the past year.
Obviously the theory underpinning the instant action is that upon learning of the bringing of this action, Alper would likely again flee with the children and attempt to further conceal their whereabouts.
The factual posture of this case was capsulized by the lower court in its opinion and must be restated here:
The facts set forth in the complaint depict a harrowing and tragic tale of a broken marriage terminated by a decree of dissolution on December 30, 1976 in Tippecanoe County, Indiana. Custody of the two children born of the marriage, ages 11 and 9, was given to mother-appellee with visitation rights to the father, Anatole Alper. On July 15, 1977, the father secured possession of the children for visitation of six weeks. During the early part of that period, he moved leaving no forwarding address. Since that time, the appellee has been unable to learn the whereabouts of the father or children and she has thus been deprived of any contact of any kind whatsoever with her children since July, 1977.
In August, 1977, appellee became aware that appellant-attorney here represented her former husband by means of a letter sent to a banker, bearing on the imprinted letterhead her husband‘s name and the appellant‘s office address and telephone number. Numerous other letters bearing the same imprint were sent to other persons in the community. Appellant-attorney, himself, sent support payments to appellee‘s former counsel.
The complaint further alleged that appellant has represented that he is a repository for mail for Anatole Alper and that he, appellant, talked to Alper on a monthly basis.
The court ordered a fine and punitive damages of $100 per day and imprisonment, until Alper purges himsеlf of contempt by returning the children to appellee. A warrant for Alper‘s arrest was issued.
The complaint further alleges that appellant has knowledge of the present whereabouts of Alper and accuses appellant of knowingly counseling Alper in the commission of a felony, to-wit, child stealing, and that he continues to aid and abet Alper in the commission of a crime and in violation of the court orders of Indiana.
Appellant raises four issues on appeal, to-wit: (1) the lower court‘s jurisdiction to hear this matter; (2) that the injunction was improperly issued without bond; (3) the applicability of the attorney-client privilege; and (4) a defect in the affidavit accompanying the Complaint in Equity.
Our learned colleagues in their majority opinion appear to conclude that the lower court has jurisdiction to entertain the instant action pursuant to the Uniform Child Custody Jurisdiction Act (supra), as well as pursuant to its general equity powers. However, the majority opinion reversing the Order of the lower court and dissolving said Preliminary Injunction concluded that a Preliminary Injunction should not have issued because of a purportedly improperly verified Complaint.
I disagree and therefore respectfully dissent.
I find that Appellant‘s third issue on appeal that the September 25, 1978 injunction was improperly issued, since no bond was filed, is without merit. Three days later, the lower court cоntinued said injunction with bond. Whatever defect therefore existed in the first instance was cured on September 28 when bond was posted. I am not convinced by Appellant‘s argument that without a bond, the Preliminary Injunction issued September 25, 1978 was a nullity which could not have life breathed into it by the posting of a bond three days later.
Finally, appellant also contends that the attorney-client privilege is applicable. (The majority did not address itself to this issue). The Act of 1887, P.L. 158 § 5(d),
“As a general rule, an attorney may be compelled to disclose the name and address of his client on the theory that his knowledge as to these matters did not flow from a confidential communication.” 404 N.Y.S.2d at 794.
As to the applicability of the privilege, the court went on to state:
“An attorney may validly assert the privilege as to his client‘s name or address in the limited instance where the client intended such information to be confidential and further provided that protecting this cloak of secrecy will not aid in carrying out an unlawful purpose.” 404 N.Y. S.2d at 795 (Emphasis added).
However, the court noted strong disapproval of a disappointed custody litigant‘s placing his desire to obtain custody above the law and held:
“However, an attorney‘s duty to his client is limited to rendering such legal assistance and advice as is the bounds of the law. It cannot extend to aiding and abetting the client to evade the impact of the court either by acts of commission or omission.” 404 N.Y.S.2d at 795. (Emphasis added).
In the instant case, we conclude appellant‘s failure to disclose Alper‘s whereabouts is not within the ambit of his lawful representation of Alper and therefore same is not protected by the attorney-client privilege.
As the lower court opined:
...
We ... believe it is now time, and that this is the proper case, in which all of the well prepared and capably argued objections interposed by (appellant) should be swept aside so that this court can address itself to the overriding human question of the best interests of the children, and in doing so make clear to all who will listen that the courts of this Commonwealth will not assist those who take the
law into their own hands in matters of child custody and that we will do all that is possible to bring matters such as these back into the proper court where the personal interest of the absconding parent will rightfully be relegated to a lesser position than that accorded the welfare and best interests of the children. We believe that it is in keeping with the modern trend of law as evidenced by broad acceptance of the Uniform Child Custody Jurisdiction Act aimed directly at this kind of heinous behavior on the part of parents dissatisfied with the decisions reached by the courts of our land. (P. 33).
I agree.
I therefore respectfully dissеnt and would affirm the issuance of the Preliminary Injunction and remand to the lower court with instructions that it proceed forthwith with a trial on its merits.
Notes
A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this State:
(i) is the home state of thе child at the time of commencement of the proceeding; or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State; and
(ii) there is available in this State substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships;
(3) the child is physically present in this State, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to prоtect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent ....
These provisions are inapplicable to the present case. They only confer jurisdiction on the courts of this Commonwealth to make child custody determinations; here, the lower court was not asked to make such a determination. Rather, it was asked to compel appellant to disclose the whereabouts of appellee‘s ex-husband and children, so that the existing court orders of the Indiana courts could be enforced.
It is to be noted, however, that the court‘s order requiring appellee “to post bond in the amount of one hundred dollars ($100.00)” was deficient in that the order did not condition the continued effect of the preliminary injunction that had already issued upon the posting of the bond. Rose Uniforms, Inc. v. Lobel, 408 Pa. 421, 422, 184 A.2d 261 (1962). Also, at the hearing on October 6, the lower court, recognizing the possibility that its earlier orders were invalid, stated:
I am going to take this rule to show cause and request for temporary restraining order and the petition for temporary restraining order and special injunction as being filed now, and I am going to continue in full force аnd effect the bond that is already entered in this case.
R. at 58a.
However, in its order dated October 11, the court did not dissolve its orders of September 25 and 28 and then enter a new order granting a preliminary injunction upon plaintiff‘s prior posting of bond. Rather, the lower court‘s order states:
AND NOW, to wit, this 11 day of October, 1978, by agreement of the parties and their counsel, this matter is continued to Oct. 31, 1978, at 9:30 A.M. in Room 517 City Hall, Phila., and the Special Injunction issued on September 25, 1978 and reissued on October 6, 1978, will remain in full force and effect until hearing.