Melnick v. Melnick

CourtSuperior Court of Pennsylvania
Writing for the CourtKELLER, President Judge
Citation147 Pa.Super. 564,25 A.2d 111
PartiesMELNICK v. MELNICK et al.
Decision Date28 February 1942
25 A.2d 111
147 Pa.Super. 564

MELNICK
v.
MELNICK et al.

Superior Court of Pennsylvania.

Feb. 28, 1942.


25 A.2d 112

KENWORTHEY, J., dissenting.

25 A.2d 113

Appeal No. 77, October term, 1941, from order of Court of Common Pleas No. 3, Philadelphia County, No. 1853, December term, 1937; Raymond MacNeille, President Judge, and Byron A. Milner, Judge.

Petition by Samuel Melnick against Helen B. Melnick and another under the Uniform Declaratory Judgment Act, 12 P.S. § 831 et seq., to determine the marital status of the petitioner and named defendant. From an order sustaining defendants' preliminary objection and dismissing the petition, the petitioner appeals.

Reversed and remanded.

Before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, RHODES, and HIRT, JJ.

Lemuel B. Schofield and W. Bradley Ward, both of Philadelphia, for appellant.

Gustave F. Straub, Marshall A. Coyne, and David J. Smyth, all of Philadelphia, for appellees.

KELLER, President Judge.

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, 12 P.S. § 831 et seq.

The defendants, without replying to the averments of fact, raised certain preliminary questions of law, under section 5 of the supplemental act, 12 P.S. § 851, 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, 332 Pa. 248, 2 A.2d 745.

The court below sustained the preliminary objections and dismissed the petition. The petitioner appealed.

The original petition was filed December 23, 1937, and 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 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

25 A.2d 114

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 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. Ass'n, to Use of Samuel Melnick, v. Helen B. Melnick, 325 Pa. 182, 189 A. 470, 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

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 Judgments Act" of 1923 provides (sec. 1) that "Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other 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 of "freedom to act or decide"—as to whether it may render or refuse to render a declara-

25 A.2d 115

tory 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 susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary...

To continue reading

Request your trial
7 practice notes
  • Welker v. Welker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1950
    ...mail. It would seem that such service was not sufficient under the Pennsylvania law to give the court jurisdiction. Melnick v. Melnick, 147 Pa.Super. 564, 580, 25 A.2d 111. The effect of this decree upon the present proceedings was left undecided by the judge as a question of law. If [325 M......
  • Welker v. Welker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1950
    ...mail. It would seem that such service was not sufficient under the Pennsylvania law to give the court jurisdiction. Melnick v. Melnick, 147 Pa.Super. 564, 580, 25 A.2d 111. The effect of this decree upon the present proceedings was left undecided by the judge as a question of law. If [325 M......
  • Commonwealth v. Franklin, 7458
    • United States
    • Superior Court of Pennsylvania
    • November 12, 1952
    ...Proceedings No. 3, 1938, 332 Pa. 358, 364, 2 A.2d 809; Schlaudecker v. Marshall, 1872, 72 Pa. 200, 206; Melnick v. Melnick, 1942, 147 Pa.Super. 564, 570, 25 A.2d 111. The purport of the foregoing cases and principles must be that the legislature has no right to confer or the judiciary to ac......
  • Henry v. Henry, No. 46
    • United States
    • Supreme Court of Michigan
    • December 2, 1960
    ...(on trial) 132 Misc. 217, 228 N.Y.S. 539, 224 App.Div. 719, 229 N.Y.S. 833, affirmed 250 N.Y. 382, 165 N.E. 819; Melnick v. Melnick, 147 Pa.Super. 564, 25 A.2d Borchard says on the specific issue: 'The more typical situation is that in which 1 of the parties to an earlier marriage wishes to......
  • Request a trial to view additional results
7 cases
  • Welker v. Welker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1950
    ...mail. It would seem that such service was not sufficient under the Pennsylvania law to give the court jurisdiction. Melnick v. Melnick, 147 Pa.Super. 564, 580, 25 A.2d 111. The effect of this decree upon the present proceedings was left undecided by the judge as a question of law. If [325 M......
  • Welker v. Welker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1950
    ...mail. It would seem that such service was not sufficient under the Pennsylvania law to give the court jurisdiction. Melnick v. Melnick, 147 Pa.Super. 564, 580, 25 A.2d 111. The effect of this decree upon the present proceedings was left undecided by the judge as a question of law. If [325 M......
  • Commonwealth v. Franklin, 7458
    • United States
    • Superior Court of Pennsylvania
    • November 12, 1952
    ...Proceedings No. 3, 1938, 332 Pa. 358, 364, 2 A.2d 809; Schlaudecker v. Marshall, 1872, 72 Pa. 200, 206; Melnick v. Melnick, 1942, 147 Pa.Super. 564, 570, 25 A.2d 111. The purport of the foregoing cases and principles must be that the legislature has no right to confer or the judiciary to ac......
  • Henry v. Henry, No. 46
    • United States
    • Supreme Court of Michigan
    • December 2, 1960
    ...(on trial) 132 Misc. 217, 228 N.Y.S. 539, 224 App.Div. 719, 229 N.Y.S. 833, affirmed 250 N.Y. 382, 165 N.E. 819; Melnick v. Melnick, 147 Pa.Super. 564, 25 A.2d Borchard says on the specific issue: 'The more typical situation is that in which 1 of the parties to an earlier marriage wishes to......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT