Plaintiff, in this equity action, seeks entry of a support order against defendant, her husband. In addition, she requests supplemental equitable relief alleged to be authorized under a series of acts: (1) Act of May 23, 1907, P.L. 227, sec. 2, as amended, 48 PS §132; (2) Act of June 11, 1913, P.L. 468, 48 PS §§133-135; and (3) Act of May 10, 1921, P.L. 434, 48 PS §§136-141.
Defendant has filed preliminary objections to the complaint consisting of (1) a motion for a more specific pleading; (2) an assertion that the action is barred by virtue of a prior pending action, and (3) a demurrer. It is these issues that are before the court for disposition.
It is necessary initially to note carefully what plaintiff has set forth in her complaint. For present purposes, these allegations must be accepted as true.
Plaintiff’s complaint asserts that she and defendant are husband and wife; that there were two children born of the marriage, not now residing with plaintiff; that defendant constructively separated himself from her without reasonable cause; that de
We commence with the objection of Ms pendens. A second action between identical parties involving the same cause of action and relief will be stricken on this basis. In this matter, it is clear that the parties are the same (even though the Commonwealth is a nominal party in the criminal division action). It is equally clear that the relief requested in this action is substantially greater (and thus different) than that sought in the criminal division matter, although the two actions share a request that the court enter a support order against defendant. Thus, there is no basis for dismissal of the action in its entirety because of the pending criminal division action. However, there is no reason to allow the identical claim between the same parties, affording the same relief to be twice litigated. Accordingly, that portion of the complaint in equity which seeks an adjudication that plaintiff is entitled to support and the entry of an order of support is barred by virtue of the pendency of a prior action between the parties involving that precise issue. The claim for support in the equity matter, grounded upon section 1 of the Act of May 23, 1907, supra, 48 PS
It was there held that the consolidation of issues involving real estate with the question of entitlement to support amounted to a misjoinder of causes of action. Thus, were we not to dismiss the support phase of this equity action on the basis of lis pendens, it would seem under the Drummond cases, supra, and at
There remains the question of whether the complaint otherwise states a cause of action. In order to intelligently approach this question, we must first examine the several Acts of Assembly upon which plaintiff relies, as cited in the first paragraph of this opinion.
Section 2 of the Act of May 23, 1907, supra, 48 PS §132, provides that:
“Whenever any man has heretofore separated, or hereafter shall separate, himself from his wife or children, without reasonable cause . . . and being of sufficient ability, has neglected or refused or shall neglect or refuse to provide suitable maintenance for his said wife or children, proceedings may be had against any property real or personal of said husband necessary for the suitable maintenance of the said wife or children.”
The question narrows, then, to this: Has plaintiff pleaded sufficient facts to establish a cause of action under section 2 of the Act of 1907, quoted above? The fair import of section 2 is that where a husband owes a duty of support, proceedings may be had against his “property, real or personal,” but only where such proceedings are “necessary for the suitable maintenance of the . . . wife or children.” (Italics supplied.) The logic of this is apparent when we approach the problem from another direction. If a husband against whom a support order has been entered faithfully pays that order, obviously, there is no necessity to proceed against his property, and no such action could be maintained under this act. It is thus essential, in order to maintain an action under the authority of section 2 of the Act of May 23, 1907, that the complaint state facts which, if true, establish that such relief is necessary.
The usual section 2 situation is that where a husband-father has left the jurisdiction, his whereabouts are unknown, and arrearages on the order have accumulated. Under such circumstances, it is
The complaint contains only one allegation that remotely touches upon the question of necessity, in the section 2 sense, and that is the averment that plaintiff has been advised that defendant intends to move to another jurisdiction. Assuming that to be so, that fact cannot support an inference that defendant will refuse to comply with a support order if one is entered. Thus, we perceive nothing in the complaint which establishes any necessity that equity presently interfere with defendant’s property.
As noted above, we are doubtful that plaintiff can presently bring herself within the parameters of section 2 of the Act of May 23, 1907, supra. We will, nevertheless, permit her to amend the complaint should she so desire.
ORDER
And now, July 25, 1973, defendant’s preliminary objections are sustained as follows:
1. That portion of the complaint seeking the entry of an order of support against defendant is stricken.
2. The preliminary objection in the nature of a demurrer is sustained. Leave is granted plaintiff to file an amended complaint within 20 day of the date hereof.