author: BECK, Judge: CIRILLO, President Judge, TAMILIA, Judge,

text:
    522 A.2d 1115
    Shirley A. COLEMAN, Appellant, v. Harrison W. COLEMAN, Appellee. Shirley A. COLEMAN, Appellant, v. Harrison W. COLEMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued April 7, 1986.
    Filed March 16, 1987.

      Jackson M. Sigmon, Bethlehem, for appellant.

      Gus Milides, Easton, for appellee.
    Irving W. Coleman, Philadelphia, for appellee.
    Before CRILLO, President Judge, and BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   BECK, Judge:

Appellant Shirley Coleman and appellee Harrison Coleman were married in 1955. Wife filed a complaint in divorce in Pennsylvania in May, 1983, seeking dissolution of the parties’ marriage, equitable distribution of marital property, and counsel fees, costs, and expenses. In his answer to the complaint, husband admitted that no prior action had been initiated in Pennsylvania, but averred that a divorce suit, in which he was the plaintiff, was pending in Nevada. In the Pennsylvania action the court in September 1983 established an escrow account pursuant to a stipulation of counsel, to provide security for husband’s appearance at future proceedings and satisfaction of wife’s equitable distribution claims in the Pennsylvania action.

On May 8, 1984, both parties appeared before the Nevada Court which entered a divorce decree. The decree, inter alia, reserved wife’s right to pursue her economic claims in Pennsylvania.

The decree in pertinent part provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall transfer and convey by appropriate deed to the Defendant all of his right, title and interest in and to the marital home located in the State of Pennsylvania thereby vesting the property in the name of the Defendant as her sole and separate property absolutely;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall pay to the Defendant the sum of $25,000.00 in lieu of Nevada alimony, and without prejudice to the Defendant’s rights to pursue any relief in the State of Pennsylvania relative to such matters and/or property within the jurisdiction of the Pennsylvania Domestic Relations Court;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall pay to the Defendant’s attorney, Jack G. Perry, Esquire, the total sum of $1,500.00 as and for attorney’s fees in this cause, as well as $41.00 in reimbursement for costs____

(emphasis added).

In response to wife’s assertion of her economic claims in Pennsylvania the Northampton County Court of Common Pleas disposed of the pending Pennsylvania divorce action in its order of August 7, 1984, holding that the entry of a foreign divorce decree in a proceeding in which both parties appeared precluded wife from pursuing any form of economic relief in Pennsylvania.

After wife filed her notice of appeal from the order of August 7, 1984, the trial court on October 10, 1984 granted husband’s motion to terminate the escrow account. Wife appealed this second order also. The appeals have been consolidated and both are before us.

The primary issue on appeal is whether under the Pennsylvania Divorce Code wife is barred from seeking equitable distribution and counsel fees because of the adjudication in the Nevada divorce proceeding in which she appeared. We conclude that she is not, and therefore vacate and remand.

A threshold inquiry is whether the trial court had subject matter jurisdiction to address wife’s claims. It is well established that the test of subject matter jurisdiction is simply the competency of the trial court to hear and determine controversies of the general class at issue; i.e., whether the court has power to enter into the inquiry, and not whether it will ultimately decide that it can or cannot grant relief in the particular case before it. In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980); Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 464 A.2d 1349 (1983). Furthermore, “[p]arties to an action cannot ... confer jurisdiction upon a court for which jurisdiction would otherwise be lacking.” Cheng, 347 Pa.Super. at 519, 500 A.2d at 1177; see also T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Maxton v. Philadelphia Housing Authority, 308 Pa.Super. 444, 454 A.2d 618 (1982); Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981).

Under the Divorce Code the trial court clearly has the power to dispose of wife’s claims for equitable distribution and counsel fees. The jurisdictional breadth of Pennsylvania courts over economic issues incident to a foreign divorce decree has been delineated by this court in Cheng, which pointed out that under Sections 102(a) and (b) of the Divorce Code, the policy of the Commonwealth is to:

(a)
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(4) Mitigate the harm to spouses ... caused by the legal dissolution of the marriage.
(6) Effectuate economic justice between parties who are divorced ... and insure a fair and just determination and settlement of their property rights.
(b) The objectives set forth in subsection (a) shall be considered in construing the provisions of this act and shall be regarded as expressing the legislative intent.

23 P.S. § 102(a), (b) (emphasis added).

In order to implement the Legislature’s intent, Sections 301(a)(1) and 401(c) of the Code grant the courts of this Commonwealth broad jurisdiction over the economic issues related to divorce. Cheng, 347 Pa.Super. at 519-21, 500 A.2d at 1178.

§ 301 Jurisdiction
(a) The courts of this Commonwealth as defined in section 104 shall have original jurisdiction in cases of divorce and ... where they have jurisdiction, shall determine in conjunction with any decree granting a divorce ... the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses____
§ 401 Decree of court
(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as
equity and justice require against either party____

23 P.S. §§ 301(a)(1), 401(c) (emphasis added).

In addition, Section 505 specifically provides jurisdiction to Pennsylvania courts to grant alimony to a defendant in a foreign divorce action where the defendant has not appeared in the foreign proceeding:

§ 505 Alimony where a foreign ex parte divorce or annulment
Whenever a person who was a resident of this Commonwealth at the time such person was a defendant or respondent in a foreign ex parte action for annulment or divorce petitions a court of this Commonwealth for alimony and establishes the need therefor, such court, if it has jurisdiction over the person or property of the other party, may order that such alimony be paid in the same manner and under the same conditions and limitations which pertain when alimony is sought as provided in this chapter.

23 P.S. § 505 (emphasis added); Sohmer v. Sohmer, 318 Pa.Super. 500, 505-07, 465 A.2d 665, 668 (1983). It is important to note, however, that Section 505 is not the comprehensive definition of the trial court’s authority, which is contained in Sections 301 and 401(c), but rather is “[a] grant of a specific form of relief in particular circumstances.” Cheng, 347 Pa.Super. at 522, 500 A.2d at 1179.

The relevant sections of the Code, 301, 401 and 505, grant broad jurisdiction to Pennsylvania courts. No section of the Code limits a court’s authority to address the equitable distribution and counsel fee claims of a litigant in a foreign divorce proceeding, regardless of whether or not that litigant appeared in the foreign forum. We must therefore abide by the established principle that if the legislature has shown no indication of its intention to limit jurisdiction, the act in question must be construed as imposing no limitation. In re Jones & Laughlin Steel Corp., 263 Pa.Super. 378, 398 A.2d 186, aff'd, 488 Pa. 524, 412 A.2d 1099 (1979).

The fact that the Nevada court had subject matter jurisdiction and exercised it to a limited degree did not extinguish the statutory authority of a Pennsylvania court to dispose of the matters at issue.

A determination that the Pennsylvania court has subject matter jurisdiction, however, does not end our inquiry. We must now examine whether the wife is barred by the doctrine of res judicata from asserting her claims in Pennsylvania.

Res judicata, or claim preclusion, applies where the cause of action in one suit is identical to that involved in a prior final judgment. The doctrine holds that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive of the rights of the parties and their privies and bars subsequent actions involving the same claim, demand, or cause of action and issues determined therein. Sea-Land, Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974); Keystone Building Corp. v. Lincoln Savings & Loan Assoc., 468 Pa. 85, 360 A.2d 191 (1976); In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 477 A.2d 527 (1984); LeBeau v. LeBeau, 258 Pa.Super. 519, 393 A.2d 480 (1978); see also Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d 1372 (1985); Consolidation Coal Company v. Dist. 5, United Mine Workers, 336 Pa.Super. 354, 485 A.2d 1118 (1984); Restatement (Second) of Judgments §§ 18, 19, 24 (1982); Scoles, Conflict of Laws, § 24.1 at 917 (1984). Res judicata generally bars relit-igation of issues raised, as well as arguments that might have been raised but were not. Noetzel, 338 Pa.Super. at 466-67, 487 A.2d at 1376; Consolidation Coal Co., 336 Pa.Super. at 361-63, 485 A.2d at 1122. Moreover, res judicata is “a part of the ‘national jurisprudence’ by virtue of the full faith and credit clause of the federal constitution,” and may thereby bar relitigation of a claim based on a judgment rendered in a foreign forum. Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885 (1942); Noetzel, 338 Pa.Super. at 466-67, 487 A.2d at 1376.

This court articulated the policy underlying the doctrine of res judicata in Consolidation Coal Co. v. Dist. 5, United Mine Workers:

The res judicata doctrine is a judicial creation aimed at preventing a multiplicity of suits. It protects a party from the vexation of having to defend itself against a claim for which a final judgment has already been entered. Furthermore, it serves the public interest by keeping the courts clear of disputes that have been decisively resolved. But as a matter of fairness to the party which believes it has a valid claim, the doctrine is not applied unless there in fact was a previous action in which the party did present, or had the opportunity to present, its claim. Hence, the general rule is that the doctrine of res judicata cannot be applied to preclude a claim absent a final judgment on the merits in a previous action.

336 Pa.Super. at 362, 485 A.2d at 1122 (emphasis added; citations omitted); see also LeBeau, 258 Pa.Super. at 523-25, 393 A.2d at 482.

The determination of whether a final judgment on the merits has been entered in a prior suit may depend in large measure upon how unfair it would be to the defendant in the second action to permit relitigation. Scoles, supra, at § 24.24. One commentator has noted that in deciding whether a claim should be precluded “all relevant circumstances [must be evaluated] including the extent to which the parties in the prior action had a full opportunity there to litigate, and actually litigated, the issues of their concern.” Smit, International Res Judicata and Collateral Estoppel in the United States, 9 U.C.L.A.L.Rev. 44, 59 (1962) (emphasis added).

By ordering husband to convey his interest in the marital home to wife and to pay her counsel fees incurred in Nevada, the Nevada Court’s decree addressed to some degree the issues of property distribution and counsel fees, costs and expenses. Nonetheless, the doctrine of res judicata does not preclude an equitable division of property or claims for counsel fees in Pennsylvania because of two key facts in this case: (1) the parties agreed to reserve wife’s right to seek further economic relief in Pennsylvania; and (2) the Nevada decree was entered “without prejudice to [wife’s] rights to pursue any relief in the State of Pennsylvania relative to such matters [alimony] and/or property....”

Since the Nevada Court disposed of some of the wife’s economic claims, it could be argued that permitting wife to pursue additional economic relief in Pennsylvania would constitute splitting a cause of action. The courts of this Commonwealth have long adhered to the generally accepted view disfavoring the splitting of claims. Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968); Restatement (Second) of Judgments § 24 (1982). Nonetheless, in some circumstances parties may be permitted to split a cause of action so that res judicata will not operate to bar the latter suit. See Keystone Building Corp., 468 Pa. at 94-95 n. 10, 360 A.2d at 196 n. 10; Hook v. Hook & Ackerman, Inc., 383 Pa. 67, 117 A.2d 714 (1955). The Restatement of Judgments (Second) has framed the rule as follows:

When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
(a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein; or
(b) The court in the first action has expressly reserved the plaintiff’s right to maintain the second action____

Restatement (Second) of Judgments § 26(1) (1982).

The law of Pennsylvania is in accord with the approach taken by the Restatement. For example, we note that consent decrees may have res judicata effect. Pennsylvania Human Relations Commission v. Graybill, Inc., 482 Pa. 143, 393 A.2d 420 (1978); Jones & Laughlin, 328 Pa.Super. at 454-55, 477 A.2d at 533. However, if the parties did not intend the consent decree to act as an adjudication of the merits of the subsequent claim, then the decree may not bar the later action. Keystone Building Corp., 468 Pa. at 92-94, 360 A.2d at 195 (consent decree enforcing terms of contract not bar to later suit for damages); Jones and Laughlin, 328 Pa.Super. at 456-57, 477 A.2d at 534. Similarly, a stipulation entered into by the parties with the intention of limiting the scope of the proceedings may effectively leave open other issues not addressed for future determination. See, e.g., Fogel Refrigerator Co, v. Oteri, 398 Pa. 82, 86, 156 A.2d 815, 817-18 (1959) (stipulation by counsel limiting petition to open judgment to issue of forgery made judgment res judicata only to defense of forgery). Thus, whether a plaintiff may be permitted to bring a second suit on the undecided claims in the first action, and thereby split a cause of action, turns on the question of the parties’ and the court’s intent; i.e., where the parties and the court did not fully address the claims in the first suit did they intend the judgment not to be a final adjudication of all the issues? The conduct of the parties and the court, and the language of the decree, may be considered in ascertaining such intent. Keystone Building Corp., 468 Pa.Super. at 92-94, 360 A.2d at 195.

Furthermore, we are bound by the Full Faith and Credit clause of the United States Constitution, art. IV, § 1, to take this position. See, e.g., Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 82-83, 361 A.2d 660, 662 (1976) (allocatur denied); see also Mulholland v. Pittsburgh National Bank, 418 Pa. 96, 209 A.2d 857 (1965) (determination of competency valid where Florida court reserved future dispositions for adjudication in Pennsylvania); Cheng, 347 Pa.Super. at 518-19, 500 A.2d at 1177 (reservation of economic issues for Pennsylvania recognized despite preservation of action in which claims raised in South Carolina).

The record in this appeal firmly establishes that the parties and the court did not intend that the Nevada decree would fully resolve the economic issues of the parties. Consequently, the decree dealt with the status of the parties and certain specified economic claims and reserved other economic claims for later resolution in Pennsylvania. The husband admits that he entered into an agreement with wife whereby the conveyance to her of his interest in the marital home under the Nevada decree would not affect her right to pursue other economic relief in Pennsylvania. (Record at 54a). The Nevada court incorporated the parties’ agreement containing the reservation into its decree, and specifically limited its award of counsel fees and costs to those incurred in the Nevada action. The conduct of the parties and the court, and the language of the decree itself, indicates that neither the court nor the parties intended the decree to act as an adjudication of the claims reserved for later disposition in Pennsylvania; therefore the Pennsylvania court having jurisdiction may dispose of those economic issues which the Nevada court reserved and did not resolve.

The result we reach promotes the policies underlying both the Divorce Code and the doctrine of res judicata. The Code was enacted not only to effectuate economic justice, but also to harmonize Pennsylvania’s domestic relations law with the laws of other states. Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985).

The res judicata values of judicial economy and fairness to the parties are also well-served by our approach. As the Supreme Court of Pennsylvania noted in Keystone:

[Tjhere .is no valid reason why, when the parties can expeditiously resolve one issue in an action, they cannot consent to a judgment on that issue, and preserve their right to fully litigate the other issue.

468 Pa. at 94, 360 A.2d at 196 (footnote omitted).

In addition, we need not be concerned with subjecting husband to the inconvenience of relitigation; when the issues of the first action have not been fully litigated and a final judgment has not been entered, the underlying reasons for application of the res judicata doctrine are absent. See Consolidation Coal, 336 Pa.Super. at 361-63, 485 A.2d at 1122. Conversely, viewing the Nevada decree as foreclosing wife’s rights to seek economic relief in Pennsylvania would lead to an unjust and harsh result. We cannot allow one party to use an agreement into which he freely entered to abandon it and thereby take advantage of the other party.

By agreeing with husband to limit the scope of the Nevada proceeding, wife gave up an opportunity to obtain in Nevada a judgment on the merits of the issues she now raises. If the parties and the Nevada court intended the Nevada decree to result in a waiver of wife’s claims, then such an intention should have been expressed unequivocally-

We therefore vacate the order of August 7, 1984 at No. 2334 and remand for proceedings to determine wife’s equitable distribution and counsel fee claims. In so doing, the trial court should consider the awards already made by the Nevada court.

In appeal No. 3016 from the trial court’s order of October 10, 1984, we hold that under Pa.R.A.P. 1701 the trial court lacked jurisdiction to act further once appellant’s notice of appeal in No. 2443 had been filed. Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985); Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984); Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff'd per curiam 498 Pa. 570, 449 A.2d 1378 (1982). The trial court thus erred by terminating the escrow account while appellant’s appeal from the dismissal of her equitable distribution and counsel fee claims was pending. Accordingly, we vacate the trial court’s order and remand.

The orders entered at Nos. 2334 and 3016 are vacated. We remand for proceedings consistent with this opinion. Jurisdiction relinquished.

CIRILLO, President Judge files a dissenting opinion.

TAMILIA, J., files a dissenting opinion, in which POPOVICH, J., joins.

CIRILLO, President Judge,

dissenting:

I dissent from the decision to remand this case for further proceedings on the former wife’s claims for equitable distribution and other economic relief under the Divorce Code. By participating in the Nevada divorce with her husband, and permitting that divorce to become final, the wife gave up her right to litigate in Pennsylvania property issues which the Nevada court could have determined.

Section 301 of the Code provides that (a) The courts of this Commonwealth ... shall have original jurisdiction in cases of divorce ... and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce ... the following matters
(1) The determination and disposition of property rights and interests among spouses, ... and the order of any alimony, alimony pendente lite, counsel fees, or costs authorized by law.

23 P.S. § 301 (emphasis added). When the Nevada court granted the parties’ final decree in divorce, the power of the Pennsylvania court to grant financial relief in the Pennsylvania divorce action was extinguished, because the court could no longer act “in conjunction with” the granting of a decree in divorce. Mrs. Coleman’s full participation in the Nevada divorce proceedings eliminated her right to economic relief under the Pennsylvania Divorce Code; her property rights arising from the marital relation are terminated under 23 P.S. § 401(j), and her recourse, if any, is an action, to partition the property held in common.

The exception to the Pennsylvania courts’ lack of jurisdiction to proceed on economic claims in divorce actions after entry of a foreign divorce appears in section 505 of the Code, which permits the Pennsylvania courts to grant alimony to a Pennsylvania resident who has been subjected to a foreign divorce proceeding ex parte. Our court has noted that the Code might even offer other forms of economic relief, including equitable distribution of the marital property, such as Mrs. Coleman seeks, where the party asking for the relief has been the victim of an ex parte foreign divorce:

We note that even if Mr. Bell brings an ex parte divorce action in Nevada, his wife is not foreclosed from seeking alimony, child support and equitable distribution of marital property under Pennsylvania’s New Divorce Code of 1980. See 23 P.S. § 101 et seq.; Stambaugh v. Stam-baugh, 458 Pa. 147, 329 A.2d 483 (1974); Sohmer v. Sohmer, 318 Pa.Super. 500, 465 A.2d 665 (1983), petition for allowance of appeal denied January 20, 1984 [No. 608 E.D. Allocatur Docket 1983].

Bell v. Bell, 326 Pa.Super. 237, 252 n. 2, 473 A.2d 1069, 1077 n. 2 (1984) (dictum). However, as the court clearly held in the Sohmer case, the doctrine of “divisible divorce” “is limited to cases of foreign, ex parte divorces and does not apply where, as here, the defendant has appeared in the foreign proceeding.” 318 Pa.Super. at 507, 465 A.2d at 668. Mrs. Coleman has forfeited the protection of the doctrine of “divisible divorce” by appearing in the foreign forum and litigating her divorce there.

In Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985), we held that the broad policy of the Divorce Code to “[e]ffectuate economic justice between parties who are divorced,” 23 P.S. § 102(a)(6), permitted the Pennsylvania court to exercise jurisdiction over and adjudicate Mrs. Cheng’s economic claims in a Pennsylvania divorce action despite her participation in a South Carolina court’s decree granting a divorce in Mr. Cheng’s earlier-filed action. However, in Cheng we found the South Carolina divorce proceeding “essentially ex parte” as to the economic issues, “in operation if not in form,” 347 Pa.Super. at 526, 500 A.2d at 1181, because although Mrs. Cheng had appeared through counsel in the South Carolina action and filed a counterclaim requesting economic relief, the South Carolina court refused to decide the economic issues, stayed proceedings on the counterclaim, and “specifically conditioned its issuance of a divorce decree on the parties’ agreement to resolve their economic and property issues in Pennsylvania.” Id., 347 Pa.Superior Ct. at 524, 500 A.2d at 1180. Consequently, Mr. Cheng filed a stipulation in the Pennsylvania court consenting to its resolution of the economic matters, Mrs. Cheng withdrew her objections to Mr. Cheng’s motion to sever the divorce claim from the counterclaim in the South Carolina court, and the South Carolina court granted the divorce, preserving its jurisdiction over the matter pending the outcome of the Pennsylvania proceedings on the economic issues. Had it not been for Mrs. Cheng’s agreement to drop her objections to severance, there would have been no South Carolina divorce decree to hamper the Pennsylvania court’s jurisdiction, and so it would have been particularly unfair to deny her the right to litigate the economic claims in Pennsylvania. Even more importantly, though, the Pennsylvania court in Cheng was acting “in conjunction with” a divorce decree — the South Carolina decree that was specifically conditioned on and left open pending the Pennsylvania court’s resolution of the economic issues.

The situation is different where both parties participate in a foreign divorce that becomes final, and then attempt to obtain the jurisdiction of a Pennsylvania court to decide unresolved economic issues. The Pennsylvania court is no longer deciding a divorce dispute, and I agree with my Brother Tamilia that parties cannot step across state lines at their own pleasure to obtain a divorce, then expect a Pennsylvania court to take up the issues ancillary to divorce when there no longer is a divorce pending before it. I also agree with my Brother Tamilia that the doctrine of divisible divorce might be applicable to divorce proceedings that are not ex parte, where the parties first obtain an order of bifurcation to litigate the divorce and economic claims in separate fora. See generally Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983) (authority of court to bifurcate divorce from other claims implicit in § 401(b) of the Divorce Code and Pa.R.C.P. 1920.52(c)), allowance of appeal denied, 318 Pa.Super. 311, 464 A.2d 1359 (1984). Where I part with my learned colleague is in his belief that Cheng was not a bifurcated divorce; it was, only the South Carolina court, rather than the Pennsylvania court, ordered the severance, retaining jurisdiction over the divorce until all economic matters were resolved in this State.

The Colemans, however, did not proceed in this way, instead choosing to litigate their entire divorce in Nevada, returning to the Pennsylvania forum only after there was no longer a divorce left to litigate. The parties’ attempt to reserve the right to litigate economic issues in Pennsylvania by agreeing to a clause in the Nevada decree that it was “without prejudice” to Mrs. Coleman’s right to pursue economic relief in our courts is invalid. “The parties’ stipulations did not confer jurisdiction on a Pennsylvania court which would not otherwise exist.” Cheng, 347 Pa.Super. at 525, 500 A.2d at 1180. Since there is no divorce pending, there is no jurisdiction in the Pennsylvania courts to litigate economic claims in divorce. I would affirm the decision of the trial court dismissing this action.

TAMILIA, Judge,

dissenting:

I dissent and would view this conflicts of law situation in the following fashion.

When the Pennsylvania divorce is filed prior in time to the foreign proceeding and both parties are Pennsylvania domiciliaries, there are a number of options available to the local petitioner. An injunction against proceeding may be requested against the respondent to prevent out-of-state action. Upon failure to comply, the court may impose sanctions, issue protective Orders as to the property, and ultimately treat the Nevada divorce as a nullity as to its effect on property and proceed to equitable distribution.

If the Nevada divorce was filed first in time (as here), and/or there is participation actively in the Nevada divorce by the respondent, jurisdiction is acquired by the Nevada Court over the marriage status and it is in that court that the issues must be resolved. Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948); Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948). Pennsylvania equitable distribution depends on the marital status existing at the time a claim is made for equitable distribution. The Pennsylvania Court has no jurisdiction to enter a divorce decree, or any remedies ancillary thereto, if it has already been entered in a foreign jurisdiction. Perrin v. Perrin, 408 F.2d 107 (3rd Cir.1969). The Divorce Code, 23 P.S. § 301 Jurisdiction, permits determination of certain property matters (equitable distribution) and alimony only in cases where it has jurisdiction to grant the divorce. While a divorce may be granted prior to a decree of distribution, through bifurcation, no claim for equitable distribution can be made after a decree of divorce is final. 23 P.S. § 401(j); Bastion v. Bastion, 324 Pa.Super. 569, 472 A.2d 226 (1984). After a divorce decree is entered, the only recourse is partition. Once the foreign divorce decree is recognized or a domestic decree is entered, the power over property for equitable distribution purposes is gone. Bastion, supra. Neither the Nevada courts or the parties by agreement can preserve that power or impose upon the court the duty to hear those matters.

In the situation in which the foreign divorce action is ex parte, the Pennsylvania respondent admittedly has few options. The alternatives to contesting the Nevada divorce are: do nothing and contest validity of the divorce in Pennsylvania, and if successful, thereafter pursue a Pennsylvania divorce and equitable distribution; contest the Nevada divorce on jurisdictional grounds only, in Nevada, or in federal courts on the basis of diversity, preserving the right to proceed in Pennsylvania on the merits. Williams v. North Carolina (II), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945).

The majority would permit participation in the Nevada divorce and would consider it to have the same effect that would reasonably follow if appellant had been first in time in filing in Pennsylvania, followed by suitable sanctions to protect her interest, or had not participated in the Nevada action but successfully contested jurisdiction of the Nevada Court and the validity of the Nevada Decree. Appellant may elect one or the other approach, but having done neither and having elected to participate actively on the merits in Nevada proceeding, she loses any benefit that might have been derived.

The legislative intent is clear in providing for the alternative nature of equitable distribution. It provides, additionally, for an alternative evaluation of property as matrimonial property only for the purpose of division pursuant to a divorce action.

23 P.S. § 401(d)
(d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide----
(e) For purposes of this chapter only, “marital property” means....

If it had intended to preserve equitable distribution on foreign decrees (which would be a contradiction in terms as distribution may not be claimed after a decree of divorce is entered, Bastion, supra), it would have provided a remedy precisely as is the case for alimony. See 23 P.S. § 505 Alimony where a foreign ex parte divorce or annulment. Even with alimony, it is made explicitly clear that the foreign decree must be ex parte. Where the divorce is participatory, all states having the power to make alimony awards, the court selected by the parties to hear the divorce is empowered and should be requested to enter an alimony decree. Such a decree is enforceable in Pennsylvania pursuant to section 506 Enforcement of foreign decrees, or pursuant to RURESA, 42 Pa.C.S.A. § 6776. There is no recourse for a participatory divorce, where the foreign court failed to enter an alimony Order, and as to property, the remedies available are those existing without reference to section 401(d). The doctrine of divisable divorce is applicable only to the extent that remedies are available in the state of domicile, see Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974) (any change in Pennsylvania divorce law, with respect to provisions for alimony following divorce from bond of matrimony, must be made by the legislature), and protects primarily a party victimized by an ex parte divorce. See Sohmers, infra. To permit otherwise would be an invitation to fragment divorce and domestic relations proceedings interminably producing hardship to the parties and confusion in the courts.

The reasons are clear. In Gantz v. Gantz, 338 Pa.Super. 528, 488 A.2d 17 (1985), we held our legislature has determined that where a divorce is pursued, all matters to be considered should be heard in the same court, and whenever possible, by the same judge or master. This rule is no different for an out-of-state divorce than for a domestic divorce. As to conflicts of laws, admittedly the best state (or county) to determine the issue concerning division of property is the one where the property is situated. This is not, however, an overwhelming impediment as the state where the divorce is sought should be able to apply the law of the state where the property is located. If the parties are willing to trust their marriage dissolution to a court other than the home state, which is the state of paramount interest, how can they be heard to complain of its power and ability to resolve property issues in that forum. Forum shopping is not new, intra-state as well as interstate; to diminish it and control it, the law and rules concerning domestic relations actions must be construed so that they are not rendered impotent. To- eliminate the abominations of forum shopping and child snatching that arose in custody actions, the Commission on Uniform Laws promulgated, and most states have joined in, the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. § 5341 et seq. While nothing similar has developed in the law of divorce (except intrastate, see Gantz, supra), we have lessened the problem in support cases with the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) (1968) 23 Pa.C.S.A. § 4501 et seq., and in alimony by universal application of sections such as 23 P.S. § 505 Alimony where a foreign ex parte divorce or annulment, and permitted registration of foreign alimony Orders. Sohmer v. Sohmer, 318 Pa.Super. 500, 465 A.2d 665 (1983) correctly applied the law in its disposition of an alimony claim arising out of a participatory divorce in Virginia by denying the right to proceed in Pennsylvania, after the decree by the Virginia court. Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985) distinguished Sohmers by permitting determination of equitable distribution claims because the property was located in Pennsylvania (support and alimony are in personam actions). Cheng is distinguished from Coleman in that there was a prior existing divorce action, coupled with a stipulation from the South Carolina action, preserving the right to proceed with equitable distribution in Pennsylvania. The jurisdiction of the Pennsylvania Court was not ousted, at least initially; however, a South Carolina divorce decree terminated the court’s power to act in granting a divorce as effectively as if it had been a local decree. Williams v. North Carolina (I), 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). The decree was entered on April 20, 1982, whereas the hearing in Pennsylvania on the economic issues did not occur until April 13, 1983. There is no question of the husband’s status as a South Carolina domiciliary as he had been there almost two years (located there July 1980) before entry of the decree. The South Carolina decree is unassailable. Under the Divorce Code, separation of the divorce and property matters can only be accomplished through a court Order of bifurcation. See 23 P.S. § 401(b); 42 Pa.R.C.P. 1920.52(c); Pastuszek v. Pastuszek, 346 Pa.Super. 416, 499 A.2d 1069 (1985); Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983). This did not occur in either Cheng or Coleman. This may have been inadequate in either case, where the divorce action was already filed in the foreign jurisdiction. If there had been a proper Order of bifurcation, preceded by the mandatory hearing, after a valid complaint in divorce had been filed, first in time, a good argument could be made that a subsequent foreign divorce decree did not prevent equitable distribution. However, as here, stipulation of the parties cannot confer that jurisdiction, when the only entry is pursuant to a complaint in divorce before the instant court, followed by a foreign divorce decree which incorporates a decree of distribution.

The Nevada decree entered on May 9, 1984, in pertinent part, is as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the existing Support Order in the Court of Common Pleas of Northampton County, Pennsylvania, relative to the support of the minor daughter, Heidi Coleman, be and the same is hereby affirmed and adopted by this Court;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall transfer and convey by appropriate deed to the Defendant all his right, title and interest in and to the marital home located in the State of Pennsylvania thereby vesting the property in the name of the Defendant as her sole and separate property absolutely;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall pay to the Defendant the sum of $25,000.00 in lieu of Nevada alimony, and without prejudice to the Defendant’s right to pursue any relief in the State of Pennsylvania relative to such matters and/or property within the jurisdiction of the Pennsylvania Domestic Relations Court; ____

The Nevada Court did consider property issues and alimony and entered a decree to that effect. No rationale can justify failure to resolve any and all property and alimony matters therein. At least in Cheng there was a Pennsylvania divorce pending, and reservation by the foreign court of all property matters to be decided by the Pennsylvania Court.

In Coleman, there is no Pennsylvania divorce action and the only legal vehicle possible does not exist for purposes of entering such a decree.

Without the limited, explicit and unalterable proceedings detailed in the Divorce Code for equitable distribution of marital property, no legal means exists for such a distribution. The majority weaves an extensive legal stratagem for creating power in the court to decree equitable distribution and alimony, when the legislature failed to grant that power. This, we may not do.

In this case, Mrs. Coleman would have been better off not to have gone to Nevada, but to have contested Nevada’s jurisdiction in Pennsylvania under Williams v. North Carolina (II), supra. It appears Mr. Coleman is still here and has never acquired a bonifide Nevada domicile. This approach is given improved chances of success with recent United States Supreme Court rulings restricting long arm statutes and ex parte proceedings in foreign jurisdictions when minimum contracts have not been established. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Also with what amounts to a national divorce property and alimony policy, no fault grounds being universally available, the relaxed approach to migratory divorce should now come under closer scrutiny. Mr. Coleman now has a valid divorce because of Mrs. Coleman’s participation. Mrs. Coleman’s position would have been stronger if she had initiated a Pennsylvania divorce before Mr. Coleman had initiated the Nevada divorce (including requests for injunctions, etc.) and if she had requested bifurcation, and whatever else necessary to preserve her right to pursue equitable distribution and alimony. Having failed that, she has been relegated to an action in partition pursuant to the Act of May 10, 1927, P.L. 884, § 1, 68 P.S. § 501 which converts a tenancy by the entireties into a tenancy in common of equal one-half shares after a divorce and permits either party to partition the property.

Likewise, had this been an ex parte divorce, a partial salvation of her position would have been achieved by proceeding for alimony under 23 P.S. § 505, which permits filing for alimony in Pennsylvania when a foreign ex parte divorce granted in a sister state is in need. All of the relevant factors contained in 23 P.S. § 501 are to be considered and if the distribution of marital property was uneven and the wife’s contribution was not adequately compensated, the alimony award could reflect this. It is not a substitute, however, for equitable distribution.

Underlying our entire discussion is the coherent and interelated structure of the Divorce Code and domestic relations law ih general. The Divorce Code does not abrogate existing laws when there is no conflict and provides in section 103, Construction: “The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws____”

The existing law as to distribution of marital property is partition which comes into operation after a decree of divorce is entered. Section 508, supra. See Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986). Only when a divorce action has been filed, and a claim made for equitable distribution, followed by a hearing and determination prior to divorce (except when proper bifurcation was ordered), can section 401, permitting equitable distribution, apply. Cheng reaches for the right result but skirts the problem since there had been no Order of bifurcation severing the Pennsylvania divorce action from the alimony and distribution claims. It would be procedurally tenable for a divorce action to be instituted in Pennsylvania coupled with a claim for equitable distribution and alimony, to preserve those claims by Order of bifurcation and thereafter treat the divorce, even if acquired in a foreign jurisdiction,’' to have no bearing on the authority of this Court to resolve the collateral matters. To permit alimony and property matters to be disposed of after a valid decree in divorce, without bifurcation, destroys the integrity of the law which has been codified in the divorce statute and laboriously refined by case law. See Bastion, supra.

Stipulation (or savings clauses in a foreign divorce decree) cannot substitute for an Order of bifurcation. If such is permissible in foreign divorce cases, which are frequently suspect on their facts and findings, how much more appropriate would it not be in a domestic divorce action. Parties cannot stipulate between themselves to impose jurisdiction on the court, nor can their stipulation substitute for the hearing and bifurcation determination by the court. Pas-tuszek, supra. The entire process, including the discretion to be exercised by the court, would be supplemented by the stipulation. The only exception in the Divorce Code, to the required proceeding (complaint in divorce, claim for alimony and equitable distribution, Order of bifurcation, decree) is an agreement by the parties on the division of property and/or alimony (section 401(e)(2)), which the court may then adopt and incorporate in the decree. Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985); Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984).

In contrast to the majority view, which would appear to attain a just result, albeit by impermissible means, my view would appear to be harsh. However, never has the addage, bad cases make bad law, been more appropriate.

The approach espoused by the majority confuses the laws of judgment, jurisdiction and procedure and makes exceptions for foreign decrees and procedures which would not be permitted for domestic cases. It encourages migratory divorce because of the confusion engendered. A local domiciliary should not be able to escape the consequence of Pennsylvania law by stepping across a state line, and he and his decree should not be accorded legality simply because he does so. Williams v. North Carolina II, supra. Conversely, two domiciliarles should not be permitted to submit themselves to a foreign jurisdiction and then call upon Pennsylvania courts to contest that jurisdiction’s law and procedures or permit the foreign court to alter Pennsylvania law and procedures in order to accommodate a party who is dissatisfied with the results of a foreign procedure. Pennsylvania law does not deny the parties their day in court, it simply restricts remedies available. Partition is available, equitable distribution is not; alimony is available if claimed in Nevada but not if the decree doesn’t provide for it.

While section 401(c), which provides:

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

would seem to apply, it can come into play only if the court has jurisdiction. When the case was properly before the court, it provided extensive remedies and recourse for the appellant. Once the decree was entered in Nevada, the remedies were restricted to partition and registration of the Nevada alimony decree pursuant to RURESA, 42 Pa.C.S.A. § 6776-6780 or 23 Pa.S.A. § 506, having to do with registration and enforcement of foreign support Orders.

Sohmers started on a straight course, Coleman would place us on a forty-five (45) degree tangent. If we would follow the law and apply the procedures so clearly mandated by the Divorce Code, in due time with the proper instructions to the bar and the courts, most of the difficulties would resolve themselves. To follow the approach outlined by the majority creates a morass of judge-made law and confusion in application of statutory law. If a different approach is needed, it should be left to the legislature or more likely to the Commission on Uniform Laws. I would affirm the Order of the lower court.

POPOVICH, J., joins in this dissenting opinion.

      . The Divorce Code ("Code"), Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.

      . We recognize that the court in Sohmer focused on Section 505 not as a specific grant of relief in particular circumstances as did the court in Cheng, but rather viewed the provision as a bar to such relief. The differences between the two cases are reconciliable. Firstly, the two readings of Section 505 are not mutually exclusive. Secondly, jurisdiction in Cheng was grounded in Section 401(c), a section of the statute not construed in Sohmer. Cheng, 347 Pa.Super. at 521, n. 1, 500 A.2d at 1179 n. 1.

      . In this case we are not called upon to decide whether a defendant in a foreign divorce suit would be entitled to pursue a particular economic claim in Pennsylvania if the foreign forum had failed to dispose of the claim entirely.
      We believe, however, that petitions for equitable distribution, alimony, and counsel fees are separate claims because they involve considerably different inquiries and types of proof. Thus, an adjudication in a foreign forum which fails to address any one of them cannot constitute an adjudication on the merits of that claim, and consequently cannot preclude a subsequent action for that form of relief in Pennsylvania. This approach best serves the legislative mandate of the Code to “effectuate economic justice between parties.” 23 P.S. § 102(a)(6).

      . We do not address the following issue because it is not before us: whether, in the absence of an agreement by the parties or a specific reservation by the foreign forum a Pennsylvania court may determine the economic issues incident to a divorce where both parties have appeared in the foreign proceeding.

      . This is assuming, of course, that the husband was not an out-of-state domiciliary since anti-suit injunctions may not properly issue where it has been established that the enjoined spouse is a domiciliary of another state. Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974); Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950).

      . E. Roy Hawkins, The Effect of Shaffer v. Heitner on the Jurisdictional Standard in Ex Parte Divorces, Family Law Quarterly, Volume XVIII, no. 3, Fall 1984, p. 311.

      . § 505. Alimony where a foreign ex parte divorce or annulment
      Whenever a person who was a resident of this Commonwealth at the time such person was a defendant or respondent in a foreign ex parte action for annulment or divorce petitions a court of this Commonwealth for alimony and establishes the need therefor, such court, if it has jurisdiction over the person or property of the other party, may order that such alimony be paid in the same manner and under' the same conditions and limitations which pertain when alimony is sought as provided in this chapter. In the event that the other party from whom such alimony is sought cannot be located within this Commonwealth, the court may attach such of the tangible or intangible property of said party as is within the jurisdiction of the court in the manner provided by the Rules of Civil Procedure, except that no exemption shall apply. Such property shall thereupon be subject to the payment of alimony in the same manner as provided by law in actions for nonsupport. 1980, April 2, P.L. 63, No. 26, § 505, effective in 90 days.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    522 A.2d 1129
    Edward SOJA and Barbara Soja, His Wife v. FACTORYVILLE SPORTSMEN’S CLUB, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed March 16, 1987.

      Steven J. Shiftman, Harrisburg, amicus curiae.
    James E. Davis, Tunkhannock, for appellant.
    George E. Clark, Scranton, for appellees.
    Before CIRILLO, President Judge, and WICKERSHAM , and KELLY, JJ.

       This case was decided before Judge Wickersham left the bench.

   CIRILLO, President Judge:

This case involves an appeal by appellant, Factoryville Sportsmen’s Club, of an order holding that appellant’s firing ranges constitute a private nuisance, and instituting regulations regarding the operation of appellant’s business. For the reasons stated below, we vacate the order and remand the case for further proceedings.

The Factoryville Sportsmen’s Club (“the Club”) operates shooting ranges on its premises in rural-agricultural Over-field Township, Wyoming County. Plaintiffs Edward and Barbara Soja (“the Sojas”) reside in a dwelling situated on fifty-five acres of land. The home is located approximately one hundred yards from a clubhouse on the Club’s premises. On July 5, 1984, the Sojas brought a suit in equity, seeking to enjoin the continued operation of the Club’s shooting ranges. Preliminary objections to the original complaint were sustained in part. The Sojas then filed an amended complaint, asserting that the Club constituted a nuisance which should be enjoined, or which entitled the Sojas to monetary damages. Following a hearing on September 4, 1984, the trial court issued findings of fact, conclusions of law, and a decree nisi, declaring the unsupervised operation of the club to constitute a private nuisance. The decree included certain restrictions on Club operation: the court restricted the shooting season at the Club to the months of April through November, limited the times for shooting to the hours between ten o’clock a.m. and sunset, and prohibited use of the premises by non-members. In addition, the court ordered the Club to install a gate at the entranceway, to maintain a bulletin board at the entrance with a posted monthly schedule of shooting times, to post legible signs on the perimeters of Club property, and to meet with plaintiff Edward Soja for the purpose of producing a comprehensive and reasonable plan for noise reduction. The parties filed post-trial motions, and by order dated January 18, 1986, the decree nisi became final. The trial court stated that its action was based upon the Sojas’ request for preliminary injunction and was not intended as a permanent injunction. The court did not require the plaintiffs to post a bond. The Club then appealed to this court.

On appeal, the Club raises five issues: (1) whether the trial court improperly granted injunctive relief without requiring the appellee to post a bond; (2) whether the action is barred by the doctrine of laches; (3) whether the plaintiffs presented sufficient evidence to prove that the Club’s operation of target and trapshooting ranges constitutes a private nuisance; (4) whether the trial court improperly restricted the questioning of the Club’s expert witness; and (5) whether the trial court erred in requiring the Club to produce a comprehensive plan for noise reduction devices. Because we find that the trial court improperly entered a final injunction in response to a request for a preliminary injunction, we need not discuss the individual issues presented by the Club.

The purposes of a preliminary injunction are to preserve the status quo and prevent imminent and irreparable harm which might occur before the merits of the case can be heard and determined. Township of Clinton v. Carmat, Inc., 288 Pa.Super. 433, 436, 432 A.2d 238, 239 (1981). It is considered an extraordinary remedy and may only be granted if the plaintiff has established a clear right to the relief sought. Jostan Alum. Products, Inc. v. Mount Carmel Dist. Indus. Fund, 256 Pa.Super. 353, 357-58, 389 A.2d 1160, 1163 (1978).

A preliminary injunction is usually restrictive or prohibitory but in unusual cases it may go beyond restraint and command action. Jostan, 256 Pa.Super. at 358, 389 A.2d at 1163. In either case, its purpose is to preserve the status quo and it should do this by restoring the last peaceable, noncontested status which preceded the controversy. Shanaman v. Yellow Cab Co., 491 Pa. 516, 421 A.2d 664 (1980).

The procedural steps which must be followed when a preliminary injunction is sought are enumerated in Rule 1531 of the Pennsylvania Rules of Civil Procedure. Ordinarily, a preliminary injunction may be issued only after written notice and hearing. See Pa.R.Civ.P. 1531(a). The question to be determined at this hearing is whether there is an urgent necessity for interim relief before the case can be heard on the merits. Tentex Products, Inc. v. Kramer, 330 Pa.Super. 183, 198, 479 A.2d 500, 507 (1984). Before a preliminary injunction may be granted, the plaintiff must file a bond with the prothonotary. See Pa.R.Civ.P. 1531(b). This requirement is mandatory and an appellate court must invalidate a preliminary injunction if a bond is not filed by the plaintiff. Christo v. Tuscany, 308 Pa.Super. 564, 568, 454 A.2d 1042, 1044 (1982). Therefore, even if the trial court’s order was otherwise proper, its failure to require the posting of a bond would mandate our reversal of its decision.

After a preliminary injunction is awarded or denied, the case proceeds for a disposition on the merits. If the plaintiff is requesting permanent injunctive relief, the case is governed by the rules controlling actions in equity. See Pa.R.Civ.P. 1517. At any time prior to the final disposition of the matter, either party may request that the preliminary injunction be modified or dissolved. See Pa.R. Civ.P. 1531. Often, one of the terms in the preliminary decree is a provision requiring speedy disposition of the case on its merits. See 15 Standard Pa.Practice § 83:184. This final disposition is independent of the court's prior determination as to the plaintiff’s right to preliminary relief. The denial of a preliminary injunction does not foreclose an order for a permanent injunction. This result is logical because, as noted, the plaintiff’s right to preliminary relief is based on the imminence of irreparable harm. However, a court may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law. Fox-Morris Associates, Inc. v. Conroy, 460 Pa. 290, 294, 333 A.2d 732, 734 (1975) (Roberts, J., concurring).

There is no requirement that a bond be filed in connection with a final injunction. See Pa.R.Civ.P. 1531(b). When a final injunction is granted, the court must issue a preliminary decree as mandated by Rule 1517. This order must contain a decree nisi, a statement of the issues, findings of fact and conclusions of law. Id.

Appellate courts have consistently held that it is improper for the trial judge to treat a hearing on an application for a preliminary injunction as a final hearing on the merits and as a basis for a final decree unless so stipulated by the parties. See, e.g., Naus & Newlyn, Inc. v. Mason, 295 Pa.Super. 208, 211, 441 A.2d 422, 424 (1982); Crestwood School District v. Topito, 76 Pa.Commw. 321, 463 A.2d 1247 (1983); Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976).

In reviewing an injunctive decree, an appellate court must look to the nature of the relief granted in order to determine whether it was a preliminary or permanent injunction. The label attached by the trial court to the proceedings or the relief granted is not controlling. Naus, 295 Pa.Super. at 211, 441 A.2d at 424.

In Naus, employee Mason agreed to an employment contract with Naus & Newlyn, Inc. (N & N), barring him from competition with N & N, and from soliciting N & N clients. Mason later started his own company and he contacted several N & N customers. N & N filed a complaint in equity seeking to enjoin such contacts. After a preliminary hearing, the court enjoined Mason from: (1) soliciting the business of any N & N customers; (2) disclosing N & N trade secrets; and (3) transferring any N & N stock which he held. The trial court described its decree as a preliminary injunction. Id., 295 Pa.Superior Ct. at 210, 441 A.2d at 423. On appeal, this court reversed. We held that the trial court’s decree was permanent as it went beyond preservation of the status quo. Id., 295 Pa.Superior Ct. at 212, 441 A.2d at 424. The court held that the decree amounted to a final decree on the merits and thus was improper. Id. We also noted that the only relief requested by N & N which it did not receive was an assessment of monetary damages. The court specifically stated that the absence of a damage ruling “does not convert a permanent injunction into a temporary one.” Id. The court also found it persuasive that the trial court issued its order in the form of an adjudication as required by Rule 1517, thus providing a further indication that the order was intended to be a final decree. Id., 295 Pa.Superior Ct. at 210, 441 A.2d at 423.

In the instant case, the order was in the form of a Rule 1517 adjudication and the relief granted was final, not preliminary. The court ordered that specific, permanent steps must be taken. The defendant’s shooting season was restricted to April through November and the allowable hours for shooting were also restricted. This relief was not of a temporary nature as it was granted on an open-ended, continuing basis. The decree requires that the defendant produce a comprehensive plan for the provision of sound barrier and reduction devices. When such plan is approved by the court, it will replace the above cited relief. However, this does not convert the decree into a preliminary injunction. The court’s order constitutes a decision on the merits as it holds the defendant’s activity to be a nuisance, thereby resolving the underlying controversy. No showing has been made that the relief granted was necessary to prevent irreparable harm. Also, the decree went far beyond restoring the last peaceable status which preceded the dispute. It amounts to affirmative relief, designed to permanently remedy the situation, instead of an interim measure ordered to protect the parties until a final hearing. Although, the court called its decree a preliminary injunction, we are not bound by such a label. Instead, we must look to the nature of the relief granted. In doing so, we find that the trial court improperly granted a final injunction in response to a request for a preliminary injunction.

The record discloses no stipulation by the parties agreeing to treat the preliminary hearing as a hearing on the merits. To the contrary, plaintiff’s and defendant’s counsel each continually referred to the proceeding as being in response to a request for preliminary relief. Defense counsel correctly stated that such relief should only be granted upon a showing of exigent circumstances. (R. 90). In the absence of a stipulation to the contrary, a court may not treat a hearing on application for a preliminary injunction as a final hearing on the merits. Naus, 295 Pa.Super. at 211, 441 A.2d at 424.

It is inappropriate to integrate the two proceedings since each is controlled by a separate and distinct standard. The request for a preliminary injunction turns on the presence of imminent, irreparable harm. However, even if such a threat is not present, the plaintiff may still be entitled to prevail on the merits of his claim and obtain a final injunction. Certainly, it is unfair for a court to determine an action based upon a different legal standard than that by which the litigants believed themselves to have been governed. It is the antithesis of due process to bring someone before a court to defend himself on one basis if the court then reaches its decision on a different basis. It is also unfair to reach a final decision after a preliminary proceeding. A litigant may not prepare as completely as he would had he realized that he was not going to receive a second chance to present his case. As the Naus court held, the nature of the decree is not altered by the court’s failure to address the issue of damages. The relief granted is still in the nature of a final decree.

Because the hearing court’s decree was actually a final injunction and, therefore, was improperly issued, we must reverse and remand. Jurisdiction relinquished.

      . A preliminary injunction may only be granted without notice and a hearing when there exists a need for unusual haste so that a clear right may be protected from immediate and irreparable injury. The court must make a finding that relief is necessary and must be awarded before the defendant can be notified. Liberty Corp. v. D'Ami-co, 457 Pa. 181, 183, 329 A.2d 222, 223 (1974). A hearing must then be held within five days or the injunction is deemed dissolved. See Pa.R.Civ.P. 1531(d).


author: POPOVICH, Judge:

text:
    522 A.2d 1133
    Donald E. CREACH, Appellant, v. Ellen CREACH.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1986.
    Filed March 19, 1987.

      Nicholas H. Krayer, III, Beaver, for appellant.
    Ahmed Aziz, Assistant District Attorney, Sewickley, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Beaver County vacating a decree in divorce entered in favor of the plaintiff/appellant, Donald E. Creach. We affirm.

On October 6, 1980, the plaintiff filed a complaint in divorce alleging indignities and irretrievable breakdown of the marriage as the grounds for the divorce. See 23 P.S. § 201(a)(6) & (c). The complaint was served on the defendant by certified mail, return receipt requested. However, the defendant did not file an answer nor enter an appearance by way of counsel. In fact, except for two objections to terminate the case for inactivity in 1983 and 1985, the case lay dormant until 1986.

Present counsel for the plaintiff filed an appearance dated March 21, 1986, and at the same time an affidavit under 23 P.S. § 201(d), alleging the parties had lived separate and apart for a period of more than three years, was submitted to the prothonotary. At the end of the document, an affidavit of service by first class mail upon the defendant was executed by the plaintiffs attorney.

With the defendant’s failure to file a counter-affidavit within twenty days after service of the affidavit (notice of which was included therein), the plaintiff filed and served on the defendant a Praecipe to Transmit the record to the court for entry of a divorce decree. No objections were filed, and the court entered a divorce decree on April 21, 1986.

On April 23, 1986, counsel for the defendant filed a counterclaim seeking (1) a divorce on grounds of indignities and that the marriage was irretrievably broken, (2) property (which included a pension to be equitably distributed), (3) alimony, (4) counsel fees and (5) costs. Further, the defendant’s counsel filed a petition to vacate the divorce decree asserting that (1) the complaint, relying on 23 P.S. § 201(a)(6) & (c) as the basis for the divorce, was never amended (by the mere submission of the § 201(d) affidavit) to allege other grounds, and (2) the plaintiff’s failure to offer evidence of indignities pursuant to § 201(a)(6) or the presentment of consents under § 201(c) required a vacation of the decree.

A rule was issued and an answer was filed by the plaintiff. On May 22, 1986, the court vacated its April 21, 1986, divorce decree. This appeal followed.

Of the two issues raised for our consideration, neither has received appellate consideration. The first charges the commission of error on the part of the trial court in concluding that a complaint seeking a divorce on traditional fault grounds (§ 201(c)) cannot be converted into a no-fault (§ 201(d)) cause of action by the presentment of an affidavit to that effect, advancing the argument that anything less than a formal “amendment” to the complaint falls short of the mark and constitutes a fundamental defect apparent from the record warranting a vacation of the divorce decree.

Under the law in effect at the time of the commencement of the instant action, a divorce was (and still is) to be secured in accordance with the Rules of Civil Procedure relating to a civil action. Rule 1920.2. Thus, in the complaint filed with the prothonotary (Rule 1920.3), the plaintiff may state one or more grounds for divorce (Rule 1920.13), e.g., an action under § 201(a)(6), (c) or (d) of the Divorce Code. Rule 1920.12.

Regardless of whether the action in divorce is under § 201(c) or (d), a notice to defend must appear in the form prescribed by Rule 1920.71. The only variation between the form in existence in October of 1980 and the present, amended version (which took effect in July of 1983) is that the recipient be informed of the opportunity to request marriage counseling when indignities or irretrievable breakdown of the marriage is alleged as the ground for divorce. Except for the marriage counseling verbiage, the plaintiffs 1980 notice to defend was similar to the present version.

As for the content of the complaint, the form set forth in Rule 1920.72(a) was followed verbatim, save for the inclusion of alleged indignities incurred by the plaintiff as a ground for divorce under § 201(a)(6). Although the defendant filed no answer to the 1980 complaint, the averments were considered denied under Rule 1920.14.

Next, we observe that the plaintiffs 1986 pleading, captioned “Affidavit under § 201(d) Divorce Code”, conforms in all regard with Rule 1920.72(c). However, a follow-up praecipe requesting the entry of a decree in divorce, rather than a praecipe to transmit the record as called for by Rule 1920.73, was presented to the court. Of interest to us is that in paragraph 1 of the praecipe, counsel for the plaintiff averred: “The complaint, with Plaintiff’s affidavit under Section 201(d) of the Divorce Code, was filed in 1980, service is of record.”

Thereafter, in the same document, counsel recited that the defendant’s failure to respond to either the complaint or the § 201(d) affidavit within twenty days of service cleared the way for the entry of a divorce decree. The court agreed and entered an order to that effect on April 21, 1986. Two days later a counterclaim was filed by counsel for the defendant seeking a divorce of her own and various other items of relief (i.e., property, alimony, counsel fees and costs). This, in turn, was succeeded by a petition to vacate the divorce for the plaintiff’s failure to amend his original complaint — alleging fault grounds (§ 201(a)(6) & (c)) — to aver therein that the parties had lived “separate and apart”.

The Divorce Code is quite explicit in enunciating the criteria necessary to effectuate a valid and enforceable decree in divorce. For example, as is relevant here, the Divorce Code reads that:

It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for at least three years, and that the marriage is irretrievably bro-ken____

The Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 201(d)(1) (Emphasis added). This has been interpreted as requiring that both the complaint and affidavit must contain a three-year separation allegation, the absence of which from either document inhibits the court from granting a legally enforceable divorce pursuant to § 201(d). See Goditus v. Goditus, 28 Pa.D. & C.3d 271, 371 (Lycoming County 1983); contra Hepp v. Hepp, 70 Delaware County Reports 438 (1983).

Such an approach is reflected in the June, 1980, version of Rule 1920.12(a)(6), which still requires that a ground on which the complaint is based be stated in language substantially similar to that of the Divorce Code. Likewise, Rule 1920.72(c) lists the “separate and apart” ground in its recommended form for those seeking a divorce under § 201(d) by affidavit. Thus, we have the Divorce Code and Rules 1920.12(a)(6), 1920.72(c)(1) specifically using the term “shall” to describe the conditions precedent necessary to secure a valid divorce. We may not ignore such terminology. Especially is this true in the case of the Legislature, which could have very easily permitted the granting of a § 201(d) divorce by having the “complaint or affidavit” contain the “separate and apart” allegation. However, the use of the conjunctive gives us reason to think that the Legislature had a purpose behind the language it selected, which it has not seen fit to amend since its enactment in 1980 or modified by the Civil Procedural Rules Committee.

The rationale is self-evident in that the exclusion of a ground for divorce from the complaint, and its delay in the pleadings until the affidavit is filed, shortens the period in which a response can be filed. In other words, in the former circumstance no time limit is set in the notice to defend and the failure to answer is deemed a denial. Thus, the responding party is not constrained by time to act. The latter case mandates that action (in the form of a counter-affidavit) be taken within a fixed (twenty days) time or the averments are deemed admitted by the non-moving party.

The defendant’s right to due process (as well as the potential loss of property) is being affected in the § 201(d) affidavit context, and, therefore, all procedural requirements need to be satisfied to endow the court with the authority to act. Instantly, the 1980 complaint neglected to aver that the parties had lived separate and apart for three years. This omission cannot be satisfied with the inclusion of such an allegation in the affidavit. To condone such procedural irregularity would fly in the face of clear and unequivocal language in the statute to the contrary, which we are obligated to give full effect (see 1 Pa.C.S. § 1922) or risk the likelihood of infringing on the principle of the separation of powers. This we will not do under the guise of judicial expediency.

Moreover, we note that the plaintiffs praecipe to transmit alleges an inaccuracy, or, at least, it can be reasonably interpreted as such, when he states that the complaint and affidavit under § 201(d) of the Divorce Code were filed in 1980. In truth, only the complaint was filed in that year, while the § 201(d) affidavit appeared in 1986.

With the condition of the record before us, we agree with the trial court’s determination that the plaintiff has to file an amendment to his 1980 complaint (by making a “separate and apart” averment) to come into compliance with the law of pleading in this Commonwealth with regard to a divorce action. See Rule 1920.13(b) and Pa.R.Civ.P. 1033.

The last of the plaintiff’s contentions is also of interest in that he questions the trial court’s requirement that he give the defendant ten days notice of his intention to file a praecipe to transmit the record before the entry of a decree in divorce could take place. The trial court analogized the plaintiff’s praecipe to the seeking of a default judgment and the attendant notice required by Pa.R.Civ.P. 237.1. (See Trial Court Opinion at 5)

We can find no fault with the trial court’s time-requirement as a condition precedent to entering a § 201(d) divorce on praecipe of the plaintiff. The Divorce Code specifically cloaks a Court of Common Pleas with the authority “to make and adopt such rules and practices as may be necessary to carry [the Divorce Code] into effect”, provided, of course, they are not inconsistent with the Rules of Civil Procedure. 23 P.S. § 604.

As of the date of this opinion, nowhere in the Rules of Civil Procedure is there any mention of a notice requirement that is to be satisfied prior to securing a § 201(d) divorce. See, e.g., Garlesky v. Garlesky, 20 D. & C.3d 232, 239 (Somerset County 1981).

In fact, it was this Court’s suggestion in Crookes v. Crookes, 346 Pa.Super. 315, 326, 499 A.2d 626, 631 (1985) that the Civil Procedural Rules Committee “incorporate into Pa.R.Civ.P. 1920.42 a provision requiring notice to opposing counsel prior to the filing of a motion seeking a Section 201(d) final decree in divorce” which prompted that body to circulate for comments and suggestions a recommendation in 16 Pennsylvania Bulletin 4495-96 (1986) to do just that before submitting the proposal to the Pennsylvania Supreme Court for approval and implementation.

What is to be gleaned from the preceding is that the trial court possessed the authority to act as it did in requiring (by judicial fiat) that the plaintiff give notice to the defendant prior to entry of the final decree in divorce pursuant to § 201(d).

Once the amendment to Rule 1920.42 becomes effective, the instant type of case will become passé.

Order affirmed.

      . The reason may have been that the parties had not been separated for that period at the time the complaint was filed. We do not know.

      . See Rule 1920.72(c), which requires that statements be verified as true and correct in the affidavit.

      . The effort in adhering to the pleading requirements is minimal in contrast to the notice afforded to the recipient with its effectuation.

      . We would note that the "form” complaint listed under Rule 1920.-72(a) is to be followed regardless of whether one is seeking a divorce "... under Section 201(c) or 201(d) of the Divorce Code (Emphasis added) Yet, the Rule neglects to require the inclusion of an assertion of a three-year period of living "separate and apart” as called for under the statute. We find this to be misleading and should be amended by the Civil Procedural Rules Committee to reflect the addition of such an averment, when permitted by the facts of the case by one seeking a § 201(d) divorce. Failing this, the complainant has the option to file for a divorce under the traditional fault grounds retained by the Divorce Code.
      We are well aware that there may be instances where the three-year separation has not accrued at the time of the filing of the complaint. In those situations, as we hold today, the moving party is to amend the initial complaint to include the three-year separation allegation. This notice is most important when one considers the ex parte nature of a § 201(d) divorce action.

      . The provision and Explanatory Comment, as presently drafted, reads:
      Rule 1920.42. Affidavit and Decree under Section 201(c) or 201(d)(l)(i) of the Divorce Code. Notice of Intention to File Prae-cipe to Transmit Record.
      ******
      (c) No decree shall be entered by the court under section 201(d)(l)(i) of the Divorce Code unless a notice of intention to file the praecipe to transmit the record, substantially in the form prescribed by Rule 1920.73(a), was mailed or delivered to the party against whom the decree is to be entered and to the party’s attorney of record, if any, at least thirty days prior to the date of the filing of the praecipe. A copy of the notice shall be attached to the praecipe which shall include a certification of the mailing of the notice. ******
      Explanatory Comment
      Rule 1920.42. Affidavit and Decree under Section 201(c) or 201(d)(l)(i) of the Divorce Code. Notice of Intention to File Prae-cipe to Transmit Record.
      In Crookes v. Crookes, 346 Pa.Super. 315, 499 A.2d 626 (1985), the Superior Court suggested that Rule 1920.42 be amended to require "notice to opposing counsel prior to the filing of the motion seeking a Section 201(d) final decree in divorce.” The Civil Procedural Rules Committee concurs in that suggestion with respect to actions under paragraph (l)(i) of Section 201(d).
      Therefore, Rule 1920.42 is to be revised by adding new subdivision (c) which imposes a requirement that the plaintiff notify the defendant of the intention to file the praecipe to transmit the record in an action under Section 201(d)(l)(i) of the Divorce Code. In such an action the defendant has not actively participated in the proceedings. He has neither appeared nor filed an answer to the complaint or plaintiffs affidavit and, therefore, he may be unaware that the court is about to enter a decree which will cut off rights to permanent alimony and equitable distribution of marital property unless a claim is promptly asserted. The requirement of notice is not extended to actions in which the defendant has actively participated by filing an affidavit of consent under Section 201(c) of the Divorce Code or by contesting the plaintiff s affidavit under Section 201(d)(l)(ii).
      16 Pennsylvania Bulletin 4495-96 (1986).


author: ROWLEY, Judge:

text:
    522 A.2d 1138
    Robert L. SANDERSON and Nola Sanderson, his wife v. FRANK S. BRYAN, M.D., LTD. and Carlisle Hospital, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1986.
    Filed March 23, 1987.

      Daniel K. Deardorff, Carlisle, for appellants.
    Daniel P. Altland, Harrisburg, for appellee.
    Before WICKERSHAM , ROWLEY and TAMILIA, JJ.

       This decision was reached prior to the resignation of Judge WICKERS-HAM.

   OPINION OF THE COURT

ROWLEY, Judge:

These are consolidated appeals, specially allowed, from a certified, interlocutory discovery order in a medical malpractice action. The issue presented has not been addressed by the appellate courts of this Commonwealth. That issue is whether the Peer Review Protection Act, Act of July 20, 1974, P.L. 564, No. 193, as amended 1978, October 5, P.L. 1121, No. 262, Pa. Stat. Ann. tit. 63 § 425.1 et seq. (Purdon Supp.1986) (“the Act”), is violated by an order which gives a plaintiff access through the discovery process to peer review information that is not directly related to his or her case.

Plaintiffs Robert and Nola Sanderson instituted this action against Frank S. Bryan, M.D., LTD. and Carlisle Hospital alleging that Mr. Sanderson was admitted to Carlisle Hospital where he was treated by Dr. Bryan for radicular back pain. The Sandersons aver that Dr. Bryan was negligent in performing surgical procedures which resulted in exacerbating Mr. Sanderson’s physical problems. They further contend that Carlisle Hospital was negligent in allowing Dr. Bryan to perform surgical procedures beyond the scope of his privileges and in failing to supervise and monitor those surgical procedures.

During discovery, plaintiffs filed a Request for Production of Documents directed to Carlisle Hospital requesting all documents and recordings, other than those relating to their cause of action, maintained by any review organization within the hospital involving the evaluation and review of Dr. Bryan. Carlisle Hospital filed objections to this request, believing such information to be privileged from discovery under the Act. Dr. Bryan filed a petition for a protective order. The trial court denied in part the objections and petition and ordered Carlisle Hospital to produce certain requested documents, i.e., complaints, findings and recommendations. It further ordered that the names and addresses of the patients in any disclosed materials, be deleted. Both Carlisle Hospital and Dr. Bryan have appealed from this order contending that the purpose of the Act is to promote peer review activity by protecting the confidential nature of such proceedings, and that this purpose is emasculated by the trial court’s decision. Briefs in support of defendants’ position have been filed by amici curiae Pennsylvania Medical Society Liability Insurance Company, Pennsylvania Medical Society, and Hospital Association of Pennsylvania.

These appeals involve the interpretation of the Act, particularly section four, entitled “Confidentiality of review organization’s records,” which provides in part as follows:

The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof____

§ 425.4.

The trial court found that the words “... civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee ...” limit the scope of the privilege, and held that peer review material concerning the treatment of persons other than the plaintiff are discoverable. We disagree with this interpretation of the Act.

The medical profession exercises self-regulation. The most common form of such regulation in the health care industry is the peer review organization. Hospital peer review organizations are usually composed of physicians who review and evaluate other physicians’ credentials and medical practices. Generally, hospital peer review findings and records are protected from public scrutiny either legislatively, or by court decision. The purpose for such protection is to encourage increased peer review activity which will result, it is hoped, in improved health care. See Cuneo, Disclosure v. Confidentiality of Hospital Peer Review Committee Reports, Med. Trial Tech. Q., 172 (1985); Comment, Medical Peer Review Protection in the Health Care Industry, 52 Temp. L.Q. 552 (1979). That there are strong policies favoring peer review protection is evidenced by the fact that forty-six states have enacted some type of statutory limitation on the disclosure and use of peer review materials. Though the protection provided differs in degree among the states, typically the privilege extends to peer review committee reports, records, proceedings and testimony. See Note, The Missouri Rule: Hospital Peer Review is Discoverable in Medical Malpractice Cases, 50 Mo. L.R. 459, 475-76 (1985).

The Pennsylvania legislature first created protection for peer review organizations in 1974. Unfortunately, minimal legislative history regarding the Act was recorded and, since then, legislative and judicial activity concerning the Act has been limited to the 1978 amendment to include professional health care providers within the Act’s protection, and a few conflicting trial court decisions interpreting the Act. Our efforts to interpret the Act, however, are not entirely thwarted by a lack of history or authority. A major concern of the legislature when it created the Act was confidentiality. “The purpose of the bill is to provide protection to those persons who give testimony to peer review organizations.” Hearing on H.B. No. 1729, 158 Pa. Legis. J. — House at 4438 (1974) (statement of Representative Wells). The words prefacing the Act also provide evidence of legislative intent: “Providing for the increased use of peer review groups by giving protection to individuals and data who report to any review group.” H.B. 1729, Act of July 20, 1974, P.L. 564, No. 193. More recently, this Court held that “[t]hrough these immunity and confidentiality provisions [§§ 425.3, 425.4] ... the Legislature has sought to foster free and frank discussion by review organizations.” Steel v. Weisberg, 347 Pa.Super. 106, 110, 500 A.2d 428, 430 (1985).

We are bound to ascertain the intent of the legislature in enacting the Peer Review Protection Act as we find the confidentiality section at issue in this appeal to be unclear. Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982). The rules of statutory construction provide that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a) (Purdon Supp.1985). Each provision of the statute must be given full effect, if possible. Id. When the words of the statute are not explicit, however, the intent of the General Assembly may be ascertained. Id. § 1921(c).

In its brief, appellant Carlisle Hospital argues that the portion of the Act at issue can only be read to “disallow discovery of any materials relating to the committee’s purposes.” (Brief at 9) (emphasis in the original). The committee’s purposes are enunciated in the definition of “Review Organization,” i.e., to (1) evaluate and improve the quality of health care; (2) reduce morbidity or morality; (3) establish and enforce guidelines designed to keep the cost of health care within reasonable bounds. § 425.2. Appellant Dr. Bryan urges this Court to adopt the reasoning of other jurisdictions with peer review statutes substantially similar to Pennsylvania’s which interpret the statute to provide protection for peer review materials concerning plaintiff as well as other patients. Both appellants place great weight on the words “[t]he proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery____” § 425.4. The Sandersons and the trial court contend that this privilege is limited by the words "... in any civil action ... arising out of the matters which are the subject of evaluation and review by such committee____” Id. The trial court specifically found that the protection is limited to matters, reasonably associated with plaintiff’s cause of action. Therefore, all other proceedings, records, etc. of the peer review organization concerning patients other than plaintiff are not protected and thus, are discoverable.

We find that, as applied, this interpretation leads to an unreasonable and impractical result. Ultimately, depending upon the identity of the plaintiff, all records of all peer review proceedings would be discoverable. What would not be discoverable by one plaintiff, i.e., peer review materials reasonably associated with his or her cause of action, would be discoverable by another plaintiff. Hence, the confidential nature of the peer review proceedings would be obliterated. This result flies in the face of legislative intent and renders the Act senseless.

Moreover, the trial court has misapplied its own interpretation. According to the trial court, peer review matters reasonably associated with plaintiff’s cause of action are privileged. In the case sub judice, plaintiffs maintain a cause of action against Carlisle Hospital alleging that the hospital was negligent in allowing Dr. Bryan to perform surgical procedures when it knew or had reason to know of Dr. Bryan’s failure to exercise proper care and judgement. Under the trial court’s interpretation, all matters reasonably associated with this cause of action are not discoverable. Such matters logically would include complaints against Dr. Bryan not only by plaintiffs, but by other patients as well. Nonetheless, the trial court has ordered Carlisle Hospital to produce complaints by patients other than plaintiffs. Thus, the trial court’s interpretation not only leads to a result which is inconsistent with the intent of the legislature, it is difficult to apply.

In construing the language of a statute, we must presume that the legislature intended every word thereof to be meaningful. 1 Pa.C.S.A. § 1922(2); Commw., Dep’t of Transp. v. Pennsylvania Human Relations Comm., 510 Pa. 401, 508 A.2d 1187 (1986). Thus, we acknowledge that the words found by the trial court to limit the peer review privilege must be given effect; after all, had the legislature intended the privilege to be absolute, it could have simply left these words out of the statute. However, another presumption in ascertaining legislative intent is that the legislature does not intend a result which is absurd, impossible of execution or unreasonable. 1 Pa.C.S.A. § 1922(1); Lehigh Valley Coop. Farmers v. Commw., Bureau of Employment Sec., 498 Pa. 521, 447 A.2d 948 (1982). As previously discussed, the trial court’s interpretation of the Act leads to a result which is unreasonable.

Moreover, such interpretation conflicts with a third presumption, i.e., that the legislature does not intend to violate the constitutions of either the United States or of this Commonwealth. 1 Pa.C.S.A. § 1922(3). Specifically, by allowing a plaintiff access to the medical records of other patients, the right to privacy of those other plaintiffs is violated. This fundamental right, older than the Bill of Rights, is protected by both our federal and state constitutions. See Pa. Const, art. I, § 1, art. Ill, § 32; U.S. Const, amends. I, IV, V, IX and XIV; Fischer v. Dep’t of Public Welfare, 85 Pa.Cmmw. 215, 235, 482 A.2d 1137, 1146 (1984) (citations omitted). Our Supreme Court extensively discussed the foundation of this right in In Re B, 482 Pa. 471, 394 A.2d 419 (1978), and held that “the protection extends not only to the home ... but also to the doctor’s office, [and] the hospital ...” Id., 482 Pa. at 480, 394 A.2d at 424. In a more recent opinion, the Court further held that this protected interest in privacy “... is in the nature of freedom from disclosure of personal matters; and it is constitutionally based.” Denoncourt v. Commw., State Ethics Comm’n, 504 Pa. 191, 198, 470 A.2d 945, 948 (1983).

In the case now before us, the trial court has cited no authority for its holding allowing review of the medical records of patients other than plaintiff. Though it has courteously ordered that the names and addresses of the patients in the disclosed materials be deleted, we are not satisfied that such an invasion into the personal matters of those other patients is warranted. Moreover, since there is no requirement either legislatively or by stare decisis that the names and addresses of the patients be deleted, there is no guarantee that another trial court will be so gracious.

For all of these reasons, we find that the trial court has misinterpreted the Act. We now must determine what the proper interpretation of the Act is as it relates to the issue before us.

Where provisions of a statute appear to be ambiguous or inconsistent, the intention of the legislature may be determined by examining the occasion, reason or necessity for the law. Thus, we should look to the circumstances that existed at the time of the enactment and determine the mischief sought to be remedied or the object to be obtained in its passage.

Pennsylvania Labor Relations Bd. v. State College Area School Dist., 461 Pa. 494, 502, 337 A.2d 262, 266 (1975).

Our research of the history of the Act has revealed a draft of section four which was the subject of discussion at the May 7, 1974 hearing by the legislature. This draft differs materially from the Act as enacted. Section four thereof reads:

All data and information acquired by a review organization, in the exercise of its duties and functions, shall be held in confidence and shall not be disclosed to any person except to the extent that may be necessary to carry out the purposes of the review organization and shall not be admissible as evidence in any other civil proceeding.

Hearing on H.B. No. 1729, 158 Pa. Legis. J. — House at 4438 (1974). The difference between this draft and the original enactment is that the draft does not contain the language at issue in this appeal: .. civil action ... arising out of the matters which are the subject of evaluation and review by such committee____” § 425.4. We must assume therefore, that the language was added in an effort to eliminate a problem with the draft.

The discussion at the May 7, 1974 hearing centered around the potential for misusing the peer review process to make false charges against the person subject to review. Though such action is prohibited under section three of the Act, a strict application of section four, as drafted, would have prohibited the person being reviewed from discovering the nature of the charge against him as well as the identity of the person making the charge. Concern was expressed that a “star-chamber type inquiry” would evolve. Hearing, at 4438-39 (statement of Representative McCue). Thus, we believe that the addition of the clause now at issue was designed to respond to the concern of the legislature in its May 7, 1974 hearing.

We hold that the Act, as applied to the medical malpractice case before us protects the material sought by plaintiffs in their discovery request to Carlisle Hospital. We note that this interpretation does not result in immediate summary judgment for the defendants. “The plaintiff will still have access to his own medical records as well as any other relevant business records. Persons with firsthand knowledge of [the] incident could be compelled to testify. Finally, the malpractice victim can hire his own expert witness to evaluate and give his opinion of the disclosed facts.” Note, 50 Mo.L.R. at 475 (citation omitted).

Order reversed and case remanded. Jurisdiction is relinquished.

      . We granted appellants’ Petitions for Permission to Appeal as authorized by 42 Pa.C.S.A. § 702(b) (Purdon 1981) because of the importance of the issue involved herein and because of the conflicting decisions of Pennsylvania trial courts interpreting the Peer Review Protection Act.

      . In reaching its decision, the trial court relied on the holding in a Dauphin County case, Bolten v. Holy Spirit Hospital, 105 Dauph. 40 (1984) which adopted the analysis of a Florida appellate court case, Segal v. Roberts, 380 So.2d 1049 (4th Fla. Dist. Ct. App. 1979). We note however, that such reliance is selective. Neither the trial court nor the Dauphin County court addressed the ultimate holding of the Florida court that "... many of the matters sought ... are not subject to discovery as a matter of public policy. The arguments in favor of confidentiality of the records and proceedings of a medical review committee are so compelling that discovery should be allowed only in the most necessitous circumstances." Id., at 1052. There is no evidence in the record before us that the trial court determined that the circumstances of the instant case are “most necessitous."

      . Ala.Code § 22-21-8(b) (1984); Alaska Stat. § 18.23.030 (1981); Ariz. Rev.Stat.Ann. § 36-445.01 (Supp. 1975-84); Ark.Stat.Ann. § 28-934 (1979); Cal.Evid.Code § 1157 (West Supp.1985); Colo.Rev.Stat.Ann. § 13-21-110(1) (1973 & Supp.1984); Conn.-Gen.Stat.Ann. § 19a-25 (West Supp.1984); Del.Code Ann. tit. 24, § 1768 (1981); Fla.Stat.Ann. § 768.40(4) (West Supp.1984); Ga.Code Ann. § 88-1908 (Supp.1984); Hawaii Rev.Stat. § 624-25.5 (Supp.1983); Idaho Code § 39-1392b (1977 & 1984 Supp.); Ill.Ann.Stat. ch. 110 § 8-2101 (1984); Ind.Code Ann. § 16-4-3-1 (Burns 1983); Iowa Code Ann. § 135.42 (West 1972); 1984 Kan.Sess.Laws ch. 238 § 7(c); Ky.Rev.Stat. § 311.377(2) (1983); La.Rev.Stat.Ann. 13 § 3715.3 (West Supp.1984); Me.Rev.Stat.Ann. tit. 24 § 2510(3) (1964); Md. Health Occ. Code Ann. § 14-601(d) (1981 & Supp.1984); Mich.Comp.Laws Ann. § 333.2632 (West 1980); Minn. Stat.Ann. § 145.64 (West Supp.1984); Miss.Code Ann. § 41-63-9 (1972 & Supp.1984); Mo.Ann.Stat. § 537.035.4 (Vernon Supp.1985); Mont. Code Ann. §§ 50-16-203, 50-16-205 (1983); Neb.Rev.Stat. § 71-2048 (1981); Nev.Rev.Stat. § 49.265 (1981); N.H.Rev.Stat.Ann. § 151:13-a (Supp.1983); N.J.Stat.Ann. § 2A:84A-22.8 (West Supp. 1984-85); N.M. Stat.Ann. § 41-9-5 (1982 Supp. Pamphlet); N.Y.Admin.Code tit. 10 § 405.24(k) (1984); N.C.Gen.Stat. § 131E-95 (Supp.1983); N.D.Cent. Code § 23-01-02.1 (Supp.1983); Ohio Rev.Code Ann. § 2305.251 (Page 1983); Okla.Stat.Ann. tit. 63, § 1-709 (West 1984); Or.Rev.Stat. § 41.675 (1983); Pa.Stat.Ann. tit. 63 § 425.4 (Purdon Supp. 1984-85); R.I.Gen.Laws § 5-37.3-7 (Supp.1984); S.D. Codified Laws Ann. § 36-4-26.1 (1977); Tex.Rev.Civ.Stat.Ann. 4447d § 3 (Vernon 1973); Vt.Stat.Ann. tit. 18, §§ 1958-1960 (Supp.1984); Va.Code § 8:01-581.17 (1984); Wash.Rev.Code Ann. § 4.24.250 (Supp. 1963-1985); W.Va. Code § 30-3C-3 (Supp.1984); Wis.Stat.Ann. § 146.38 (West Supp. 1975-1984); Wyo.Stat. § 35-2-602 (1977).

        See also Note, 50 Mo.L.R. at 475-77.

      . Cases upholding protection: Schwartz v. Tri-County Hospital, 74 Pa.D. & C.2d 52 (1975); Holiday v. Klimowski, 75 Pa.D. & C.2d 408 (1976); Bandes v. Klimowski, 3 Pa.D. & C.3d 11 (1977); Obenski v. Brooks, 7 Pa.D. & C.3d 253 (1978). Cases permitting discovery: Bolten v. Holy Spirit Hospital, 105 Dauph.Co.Rep. 40 (1984); Trent v. Lancaster General Hospital, 70 Lanc.L.Rev. 170 (1986).

      . Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981); Morse v. Gerity, 520 F.Supp. 470 (D.Conn.1981); Gates v. Brewer, 2 Ohio App.3d 347, 442 N.E.2d 72 (1981); Shelton v. Morehead Memorial Hosp., 76 N.C.App. 253, 332 S.E.2d 499 (1985).

      . The 1978 amendment resulted in minimal changes to section four of the original Act and such changes are not relevant to this discussion.