Loading...
HomeMy WebLinkAbout03-14-02 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA - ORPHANS' COURT DIVISION IN RE: : No. 21-01-92 APPOINTMENT OF A GUARDIAN : OF THE PERSON OF MILDRED J. GERBER, : an alleged incapacitated person : APPLICATION FOR STAY OF JUDICIAL PROCEEDINGS IN ACCORDANCE WITH THE FEDERAL SOLDIERS' AND SAILORS' RELIEF ACT OF 1940 TO THE HONORABLE, THE JUDGES OF SAID COURT: 1. Your Applicant is Frederick E. Gerber, II, a Colonel in the United States Army, who is Guardian of the Person for the incapacitated person, Mildred J. Gerber (Ward), and resides at 4287 Kearney Lane, Fairfax, VA 22033. 2. Your Applicant is the Respondent in a Petition for an access hearing with the Ward filed by Marilyn J. Gerber. 3. The Applicant, the Guardian of the Person, Respondent, has been - ordered to temporary duty ('I'DY) in Germany, which is in direct support of the Global War on Terrorism (GWOT), Operation Enduring Freedom (OEF) and classified future related operations. A copy of the Applicant's Military Orders are attached hereto and incorporated herein by reference. 4. The Applicant is on active duty military service with the United States Army. 5. The Applicant will be out of the United States and out of the Court's jurisdiction during the time that the Court has scheduled for the access hearing for his Ward, Mildred J. Gerber. 6. The Applicant is Director of Health Care Operations for the United States Army in the Headquarters of the United States Army and attached to the office of the U.S. Surgeon General. 2 7. The Applicant is responsible for directing U.S. Army medical personnel and resources in support of U.S. Army personnel and facilities globally. 8. For the above reasons, the Applicant, the Guardian of the Person - hereby makes this Application for a stay of the judicial proceedings in this matter scheduled on March 21, 2002 before this Honorable Court in accordance with and under the provisions of the federal Soldiers' and Sailors' Civil Relief Act of 1940, as amended, 50 U.S. Code Appendix - War and National Defense Act - Article I Sec. 510 et. seq., for the following reasons: A. The Applicant is a member of the United States Armed Services, a Colonel in the United States Army. - B. The Applicant will be out of the Court's jurisdiction by reason of his military service on March 21,2002 in Germany. C. The Applicant, Guardian, is the only person to respond to the testimony anticipated at the access hearing and will have material facts to present on behalf of his Ward. 3 D. The Applicant is the best person to transport the Ward from Chicago, Illinois to Carlisle, Pennsylvania because her medical condition is causing her to become combative, belligerent and difficult to handle with unfamiliar persons, especially for transportation. E. The Applicant also further believes and represents that his presence is required not only to testify at the access hearing but also to make his mother, the Ward, much more comfortable in traveling to, preceding and following the access hearing. F. The Applicant is directly prevented from being present at the access hearing because of his U.S. Military Orders ordering him to be in Germany on the same date. G. As Guardian of the Person of the Ward, the Applicant stands in the shoes of the Ward for purposes of responding to the Petition for the Access Hearing. 9. Attorney Laskowski could not agree to consent to this Application at this time. 4 THEREFORE, the Applicant believes and represents that as the Guardian of the Person for his mother, his presence is required at the access hearing scheduled by this Honorable Court on March 21, 2002 and respectfully requests that: 1. The access hearing on March 21,2002 be stayed; 2. The stay be continued until after the Applicant returns from Germany, thirty days following March 25, 2002. Respectfully submitted, Richa ~ra ~. Kupp ~'- Sup. Court I.D. No.: 34832 355 North 21st Street, Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorney for Applicant 5 :, ~ -aC ~t4z,. ~,=*'o /~a~,)m,t, au 3. SOCiaL sEcuRiTY NUMBER 4. POSITION 111 LE AND GRAD~HAiiNG OERB~. FREDERICK E. 21~88 DIRECTOR, ~LTH C~E OPeraTIOnS · . LO~A~ON OF P~MANENT DUTY STATION ~PDS) ~ a. ORGANIZATIONAL ~ENT 7. DUTY PHONE NUM~ O~ICE OF THE SURGEON GEN~L H~DA, DASG-HCO #~,~a ~,~ c~ ~lll ~SBURG PI~, FALLS CHURCH, VA ~;, STE. ~1 H~LTH CA~ OP~ATIONS 703-681-~ 8. TYPE OF ~D~S g. TDY ~RPOSE f~ jTR. ~ ~ lOa. APPRDx NC. 0F TOY DA~ 5 b. PROCEED DATE ~Y INFORMATION M~TENG. 10 ~20315 11. ITIN~RY ~ V~R~AT;ON AUTHO~ZED FROM: FR]~, V~ TO: ~~G/~NGEN, G~MANY ~RN: F~, VR 12. ~RTAT~ MO~ , r i l AS DET~M~NED ~ ~PRIATE ~N~RTAT~H ~C;R fOv~s T~avel~ty) M~L~GE ~RSEMENT AN~ ~R ~EM IS LIMITED TO CONST~TIVE CO~T OF ~R ~EM AS DETER~NED AND T~VEL TI~ AS U~ED ~ JTR 13. ; X ~a. ~R~;~MA~DINACC~AN:E~T.~. ; ia. OTHERRATEOF~RD~[~; 14. ~y,~a ~ ~0~ 16. ADVAH~ 0 1,3ffi.ffi l,~2.ffi 18. R~K~ (~ ~ ~ ~ ~_~ C~ FO~ ~BU~E~ ~*1~ BE S~B~ ~TH[~ ~ DAYS A~ER COUPLET/ON OF TDY, GOV~~ QU~ A~ M~ WILL BE ~I~ED WHEN ~V~ IS ~ A M~ARY INSTAL~TJON OR ~V~ ~L O~AIN A ~A~ME~ OF NON-AVAIL~I~TY. OFFIC~L L~AL A~ LONG DI~ANCE ~HONE C~ AND F~ ~E AUTHOR~. TK4VEL IN ~ND ~OUND ~VEL SffE IS AUTHOr. ~C~ BAGGAGE IS A~HORIZED. USE OF P~C T~NSPORTATION IS A~HO~Z~. ~NTAL A~OR~. TA~ A~ AUTHOreD. OVER ~G~ STAY IS MISSION ~NT~L. USE OF LO~I~ SUCC~ IS MANDATORY FOR T~V~. INDIVIDU~ Ab~O~Z~ TO COUR~ CLASSIFI~ IN~O~TION UP TO ~P S~. PU~SE: TO COO~INATE AMiD ST~TEGIC WARFIG~]NG ISSUES; ~ISON WITH GE~AN GOVT MED ~C. 18 --- 17. TRAV~;~Q~E~ING OFFICIAL lrir~ AUTHORIZAY~ON ~. ~cCOU~G CffAT;O~ 21~ PD/EC $17~.~ 20. au~o;~z~;/o~;a-;ssu;,; OrRc;~ ~~,~, ~ ;;. OAT; mSU;O ;~-~.~c; :, S O~SOL~TE. u~r~ ~OM : P~u~l= · Melklm F~× NO. -' ?30 0~14 Mar. 15 ~00~ ~LS:84PM ~6 - I, Frederick E. Gerber, II, varify that the facts set forth in the foregoing Applicatiem are true and correct to the ~ of my knowledge, information and belief. The under~igned undarsland~ thai falze ~tatgments herein are made subject to the penalties of lB Pa. C.S.A. 4904 relating to unaware faL~Ificotion to authorities. 18;49 Fro~-730 0214 To-,I-IQI~SG PlI~CTOR OPER Page Oil CERTIFICATE OF SERVICE I, Richard C. Rupp, Esquire, attorney for Fred E. Gerber, II, Applicant, hereby certifies that on the date below I served a copy of the foregoing document on the following person, by depositing same in the United States mail, postage prepaid, addressed to: Stanley J. Laskowski, Esquire Caldwell & Kearns, P.C. 3631 N. Front St. Harrisburg, PA 17110-1533 Amy J. Mendelsohn, Esquire Rhoads & Sinon, LLP Twelfth Floor One South market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Jacqueline M. Varney, Esquire 44 S. Hanover St. Carlisle, PA 17013 Jane N. Heflin 270 N. Garfield Lombard, IL 60148 ! Richard C. Rupp, Esquire Date: ~)//4~~' COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: : No. 21-01-92 APPOINTMENT OF A GUARDIAN : OF THE PERSON OF MILDRED J. GERBER, : an alleged incapacitated person : MEMORANDUM FOR RESPONDENT'S, GUARDIAN OF THE PERSON'S, APPLICATION FOR RELIEF UNDER FEDERAL SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AS AMENDED, (SSCRA) Col. Fred E. Gerber, II, the Guardian of the Person (Guardian) of his mother, Mildred J. Gerber (Ward), is the Respondent in a Motion of Marilyn J. Gerber to order an access hearing for the Ward. This Court ordered such access hearing to be held on March 21,2002. The Guardian has fiduciary duties with respect t° his Ward and represents that in order to discharge his duties as Guardian he should be personally present at the access hearing to testify on behalf of the Ward. The Guardian's duties generally include pursuing the expressed wishes and preferences of the incapacitated person, assure and participate in a plan-of supportive services to meet the person's needs, encourage the incapacitated person to maximize his or her abilities and act on his or own behalf. Summary of Pennsylvanina Jurisprudence, Vol. 10, Sec 26:19, page 396. The Guardian of the Person is the 'spokesperson and representative for the best interests as well as the volition of the incapactitated person. Summary of Pennsylvanina Jurisprudence, Vol. 10, Sec 26:19. Page 397, citing 20 Pa CS 5521 (a). The Guardian is a member of the United States Armed Services, a Colonel in the United States Army, and has orders to be in Germany in direct support of the United State's global war on terrorism (GWOT), Operation Enduring Freedom (OEF) and classified future associated operations. Section 521 of the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA), 50 U.S. Code Appendix-War and National Defense Act- Article I Sec. 521, provides in part: At any stage or any proceeding in any Court in which a person in military service is involved either as Plaintiff or Defendant, the Court shall on application by such person or some person on his behalf, stay the court proceeding, unless, in the opinion of the Court, the ability of the Defendant to conduct his defense is not materially affected by reason of his military service. A copy of the Section 521, Soldiers' and Sailors' Civil Relief Act of 1940, Supra, is attached hereto and incorporated by reference as Exhibit "A'. The Guardian as a Respondent is in the same legal position as a Defendant. A person in military service is entitled as a matter of law to a stay of the proceeding against him upon his application that he is at the time actually in military service. 53 A. Am Jur 2d Sec 398 citing Mays v. Tharpe & Brooks, Inc, 143 Ga. App. 815, 240 S.E. 2d 159, cited in 53 Am Jur 2d 394, Footnote 73. A copy of Mays v. Tharpe & Brooks, Inc., Supra, is attached hereto and incorporated herein by reference as Exhibit 'B'. See also Ostrowski v. Pethick, 590 A 2d 1290, 404 Pa Super 392 (Pa Super, 1991) a copy of which is attached and incorporated herein by reference as Exhibit 'C'. The Guardian, Applicant, Respondent has stated in his Application for Stay that he is in active military service with the United States Army, that his absence will materially affect his ability to discharge his duties to his Ward at the access hearing, that he will not be able to testify to present material facts, support his Ward, and that his orders to be in Germany in support of the GWOT, OED and the classified operations is the proximate cause of his inability to be present for the access hearing. Therefore, this Court should stay the Order requiring an access hearing for Mildred J. Gerber on March 21,2002 and continue the stay until after the Guardian returns from Germany. Respectfully submitted, Richarcl C. Rupp ' ~'~' Sup. Court I.D. No.: 34832 355 North 21st Street, Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorney for Applicant 4 U.S. Code 50 - War and National Defense Soldiers' and Sailors' Civil Relief Act of 1940 -.. Page 2 of 5 :this section, or a statement, declaration, verification, or certificate certified or declared to be true under penalty of perjury permitted under subsection (1), knowing it to be false, shall be guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by fine not to exceed $1,000, or both. (3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him; and in such case a like bond may be required and an order made to protect the rights of such person. But no attorney appointed under this Act (sections 501 to 593 of this Appendix), to protect a person in military service -shall have power to waive any right of the person for whom he is appointed or bind him by his acts. (4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act (said sections), shall not impair any right or title acquired by any bona fide purchaser for value under such judgment. AMENDMENTS 1960 - Subsec. (1). Pub. L. 86-721, Sec. 1, permitted establishment of certain facts by a declaration under penalty of perjury in lieu of an affidavit. Subsec. (2). Pub. L. 86-721, Sec. 2, inserted "or a statement, declaration, verification, or certificate certified or declared to be true under penalty of perjury permitted under subsection (1)," after "affidavit required under this section," Back to top Sec. 521. Stay of proceedings where military service affects conduct thereof At any stage thereof any action or proceeding in any codrt in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act (sections 501 to 593 of this Appendix) unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service. h~p://www.chinfo.navy .mil/navpalib/questions/ssrelief/c50art2.html 03/12/02 MAYS v. THARPE & BROOKS, INC., 143 Ga. App. 815 (1977) Page 1 of 2 Georgia Court of Appefls RepOrts MAYS v. THARPE & BROOKS, INC., 143> <Ga>. <App>. <815 (1977) 240 S.E.2d 159 MAYS v. THARPE & BROOKS, INC. et al. 54589. COURT OF APPEALS OF GEORGIA. ARGUED OCTOBER 5, 1977. DECIDED OCTOBER 26, 1977. REHEARING DENIED NOVEMBER 10, 1977. WEBB, Judge. Action against Dr. J. L. Mays and Wade R. Mason on their guaranty of a $48,000 note from Rondak Construction Company was begun on June 2, 1975 by Tharpe & Brooks, Inc., as assignee of First South Homeowners Co., Inc., original payee. Mays answered on July 2 and Mason on October 28. Mason was adjudged a bankrupt on February 17, 1976. Tharpe moved for summary judgment against Mays in March, and to this motion Mays responded and made affidavit in opposition. That motion for summary, judgment was denied, and Tharpe filed a second summary judgment motion. Mays responded, and that motion was denied on February 4, 1977. In the meantime Mays on October 16, 1976 went on permanent active duty as an officer of the Air Force serving in the Philippines. Through his counsel and by their affidavit in support thereof, Mays moved for a stay of proceedings under the provisions of the Soldier's and Sailor's Civil Relief Act of 1940 as amended (50 USCA ~ Page 816 501 et seq.), augmented by an affidavit of like effect from his wife. That motion to stay was filed December 29, and denied January 11, 1977. Tharpe filed its third motion for summary judgment, together with supporting affidavits, in April and May. Again Mays moved through his counsel for a stay of proceedings under the Soldier's and Sailor's Civil Relief Act, reciting therein that Mays "is on permanent active duty as an officer in the United States Air Force and since October 16, 1976, has been serving in the Philippines, and that the ability of the defendant to conduct his defense is adversely and materially affected by reason of his inability to be present to defend himself, and ... prays that all proceedings in this action be stayed during the period of such military service and 60 days thereafter." The affidavit asserts that Tharpe's third motion .contains "additional conflicting testimony bearing upon the amount alleged to be due" and "containing two new witnesses by affidavit which were not contained in the first two motions for summary judgment." This motion to stay was denied by order of the trial Judge on June 17, and Mays appeals. The record affirmatively shows that the party for whom · ../docview.htp?Query=%28%28%3 CWORD%3E 143+Ga+App+%3 CWORD%3E815+%29%3C3/14/02 MAYS v. THARPE & BROOKS, INC., 143 Ga. App. 815 (1977) Page 2 of 2 application was made was in military service in the Philippines, ~ and no evidence was offered for the purpose of showing that his rights would not be materially affected by a determination of this litigation. A substantial right of a party to litigation is to be present at the trial and render assistance to his counsel as the developments unfold. Consequently, unless it is a situation in which no harm could accrue by reason of his absence, generally recognized as an exception in the statute, a member of the military service is entitled as of right to the stay. A person in the military service is entitled as a matter of law to a stay of a proceeding against him in any case to which that statute (50 USCA ~ 521) is applicable, upon his bare application stating that he is at the time actively in the military service; and "unless something appears sufficient to show that his rights, as a litigant, will not be materially affected by a determination of the pending litigation, it is mandatory that the application _ be granted." Parker v. Parker, 207 Ga. 588, 589 (2) Page 817 (63 S.E.2d 366) (1951); Cox v. Yates, 96 Ga. App. 466 (2) (100 S.E.2d 649) (1957) and cit$. The trial court erred in refusing a stay of proceedings at this time. Tharpe should under proper discovery Procedure be able to determine when Dr. Mays will be available to defend in a future court proceeding, and at that time file a motion for the stay to be lifted and a hearing set on its pending motion for summary judgment. Judgment reversed. Deen, P. J., and Birdsong, J., concur. ARGUED OCTOBER 5, 1977 -- DECIDED OCTOBER 26, 1977 -- REHEARING DENIED NOVEMBER 10, 1977. Action on note. Fulton State Court. Before Judge Lambros. Hatcher, Meyerson & Irvin, Stanley P. Meyerson, for appellant. Zusmann, Sikes, Pritchard & Cohen, H. William Cohen, Stephen C. Whicker, for appellees. Copyright © 2001 Loislaw.com, Inc. All Rights Reserved · ../docview. htp?Query=%28%28%3CWORD%3E 143+Ga+App+%3 CWORD%3E815+%29%3 3/14/02 Search - 4 Results - soldiers and sailors, act Page 1 of 6 Source: All Sources >/... / > PA Federal and State C~ses ~1 Terms: soldiers and sailors, act (Edit Search) ~Select for FOCUSTM or Delivery 404 Pa. Super. 392, *; 590 A.2d 1290, **; 1991 Pa. Super. LEXIS 1370, *** Sherri OSTROWSKI v. John Scott PETHICK, Appellant (Two Cases) Nos. 01721 PHL 90, 02213 PHL 90 Superior Court of Pennsylvania 404 Pa. Super. 392; 590 A.2d 1290; 1991 Pa. Super. LEXIS 1370 March 5, 1991, Argued May 14, 1991, Filed Pi~OR HISTORY.' [**'1] Appeal from the Order entered May 11, 1990 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 88-DR 1385-36842. Appeal from the Order entered June 27, 1990 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 88-DR 1385-36842. CASE SUMMARY PROCEDURAL POSTURE: Appellant sailor sought review of a decision of the Court of Common Pleas of Lackawanna County (Pennsylvania) that denied appellant's petition to strike a child support order pursuant to the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.S. § 501 et seq. OVERVIEW: Appellee mother filed a complaint for child support against appellant sailor. The child was born out of wedlock and appellant's name was not on the birth certificate. Appellant was ordered to have his Basic Allowance for Quarters allotment sent to appellee and to have medical insurance provided for the child. Appellant filed a motion for post-trial relief and a petition to strike the child support order as a violation of the Soldiers' and Sailors' Civil Relief Act (ACt). Both requests were denied by the trial court. The court quashed appellant's appeal of the denial of the post-trial relief motion, but reversed the denial of the petition to strike. The court held that an appeal could not lie from the denial of post-trial relief motions. Appellant was prejudiced by reason of his military service, thus the support order was voidable pursuant to the Act. OUTCOME: The court reversed the denial of appellant sailor's petition to strike, holding that appellant was prejudiced by reason of his military service. The appeal of the post- trial motion for relief was quashed because an appeal could not lie from a denial of such a motion. CORE TERMS: military service, paternity, support order, Sailors' Act, post-trial, serviceman, prejudiced, meritorious defense, child support, allotment, military, default, abused, domestic relations, medical insurance, appoint, serving, Sailors' Civil Relief Act, refusing to permit, equitably estopped, motion to vacate, setting forth, et seq, voidable, daughter's, attend, aboard, legal representative, paternity action, legal defense .../retrieve ?_m=f28168182b0114e7691 dded389bea797&docnum=2&_fmtst~FULL&_startdoc= 3/14/02 Search - 4 Results - soldiers and sailors, act Page 2 of 6 CORE CONCEPTS- · Hide ~ I~ Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Strike ~ Civil Procedure: Appeals: Appellate Jurisdiction: Final Judgment Rule -e'-A trial court's refusal to strike a judgment constitutes a final, appealable order. Thus, there is no need to file post-trial motions after such an order, and an appeal cannot lie from the denial of such motions. ~ Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Strike J~ Civil Procedure: Appeals: Standards of Review: Abuse of Discretion dA trial court's denial of a petition to strike will not be disturbed absent an abuse of discretion. ~ Governments: Military & Veterans Affairs: Military Affairs: Soldiers & Sailors Civil Relief Act ~ Civil Procedure: Relief From Judgment: Relief Generally -+-To set aside a judgment taken against a person while he was in the military, he must show that (1) he was prejudiced by reason of his military service, and (2) he had a meritorious defense to the underlying action. The Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.S. § 520(1)-(4). ~ Governments: Military & Veterans Affairs: Military Affairs: Soldiers & Sailors Civil Relief Act See 50 U.S.C.S. § 200. ~ Civil Procedure: Early Pretrial Judgments: Default: Relief From Default ~ Governments: Military & Veterans Affairs: Military Affairs: Soldiers & Sailors Civil Relief Act J~ Civil Procedure: Relief From Judgment: Relief Generally · The Soldiers' and Sailors' Civil Relief Act applies to all proceedings in the courts of the several states. 50 U.S.C.S. § 512. Judgments entered in violation of this section are merely voidable and not void. Thus, a judgment will remain valid until properly attacked by a serviceman pursuant to 50 U.S.C.S. § 52o(4). One of the purposes of § 520 is to prevent default judgments from being entered against persons in the military in circumstances where they might be unable to appear and defend themselves. ~ Governments: Military & Veterans Affairs: Military Affairs: Soldiers & Sailors Civil Relier Act - I~1 Civil Procedure: Counsel &The Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.S. § 520(3), authorizes a court to appoint attorney to represent party who does not appear personally or by attorney in situations not covered by 50 U.S.C.S. § 520(1). ~ Family Law: Paternity & Surrogacy -4'-Under the doctrine of equitable estoppel, if the putative father has indicated by his conduct that the child is his own, he is estopped from denying paternity. COUNSEL: Donna M. Devita, Scranton, for appellant. Sylvia H. Hahn, Scranton, for appellee. · ../retrieve?__m=f28168 = &_fmtstr=FOLL&_startdoc= 3/14/02 182b0114e7691 dded389bea797&docnun~~ 2 Search - 4 Results - soldiers and sailors, act Page 3 of 6 JUDGES: Beck, Popov/ch and Hoffman, OPI:NIONBY: HOFFMAN OPINION: [*394] [**:129:1] Appellant John Scott Pethick appeals from the May 11, 1990 order denying his petition to strike an April 7, 1989 support order, nl Appellant also appeals from the June 27, 1990 order denying his motion for post-trial relief. Appellant contends that the court erred in denying his petition to strike because the underlying support order was entered in violation of his rights under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. § 501 et seq. For the reasons set forth below, we quash the appeal from the June 27, 1990 order, and we reverse the May 11, 1990 order denying appellant's petition to strike the support order. .................. Footnotes .................. nl Specifically, appellant filed a "PETITION TO STRIKE OFF COURT ORDER DATED APRIL 7, 1989 AND TO DIRECT THAT THE PARTIES SUBIVlIT TO BLOOD TESTING FOR THE ESTABLISHMENT OF PATERNITY." See R.R. at 128a. ................. End Footnotes ................. [***2] In July 1984, appellee Sherri Ostrowski filed a complaint for child support against appellant John Scott Pethick, alleging that he was the father of her child (hereinafter "J.M."), born out of wedlock on April 8, 1984. Thereafter, a conference was held before a domestic relations officer, wherein appellant denied paternity of the child. Blood tests were scheduled but not completed because appellant had [*.~95] moved to California. The action was eventually dismissed. Subsequently, in the spring of 1985, appellant, who was serving in the United States Navy, received notification from the Lackawanna County Domestic Relations Office concerning the paternity and support of J.M. Pursuant to that notification, appellant arranged to have his Basic Allowance for Quarters (BAQ) allotment sent to appellee and to have medical insurance provided for J.M. through the Navy. Appellant denied that these activities were done on a voluntary basis; he testified that they were done in response to orders from the Navy. Appellee received BAQ allotment checks until 1988, when, for reasons that are unclear, the payments ceased. On October 13, 1988, appellee filed a second complaint for child support [***:~] naming appellant as the father of J.NI. At this time, appellant was serving on the USS Farragut, which was deployed in the Mediterranean Sea. Nevertheless, despite the [**:127.927.] fact that appellant had neither appeared in court nor been represented by counsel, a temporary order of support was entered on April 7, 1989 directing appellant to pay $ 327.00 per month for the support of J.M. On October 17, 1989, appellant filed a petition to strike off the order of April 7, 1989. A hearing was held on this petition on January 10, 1990. On May 11, 1990, the court denied appellant's petition because it found, inter a/ia, that appellant failed to demonstrate a meritorious defense. See Trial Court Opinion, September 25, 1990. On May 21, 1990, appellant filed post-trial motions. On June 8, 1990, appellant filed an appeal from the May 11, 1990 order. Thereafter, on June 27, 1990, the court denied appellant's motion for post-trial relief, and, on July 25, appellant appealed from. the June 27 order. The appeals were consolidated by order of this Court dated October 19, 1990. As a preliminary matter, we note that the appeal from the June 27, 1990 order is improper. ~A trial court's [***4] refusal to strike a judgment constitutes a final, appealable order. See, e.g., Str/cR/er v. United Elevator Co., 257 Pa.$uper. 542, 550, 391 A.2d 614, 61El (1978). Thus, there is [*:~96] no need to file post-trial motions after such an order, and an appeal cannot lie from the denial of such motions. Moreover, appellant filed his appeal from the May 11, 1990 order on June 8, 1990, which was within the thirty-day period established by Pa.R.A.P. 903, and the pendency of this appeal deprived the court of jurisdiction to act on .../retrieve?_m=f28168182b0114e7691 dded389bea797&docnum=2&_fmtstr=-FULL&_startdoc= 3/14/02 Search - 4 Results - soldiers and sailors, act Page 4 of 6 the post-trial motion. See Pa.R.A.P. 1701(a). Thus, the court's denial of appellant's motion for post-trial relief was a nullity, see Kaiser v. 191 Presidentia/Corp., 308 Pa.$uper. 301, 454 A.2d 141 (_1982): and the appeal from this denial is improper. Accordingly, we quash the appeal from the June 27, 1990 order. Our quashal of this appeal in no way affects appellant's substantive rights, however, as the sole claim, properly presented in the appeal from the May 11, 1990 order, concerns the propriety of the denial of the motion to strike. The central issue presented on appeal is whether the court below [***5] erred in denying appellant's petition to strike off the April 7, 1989 support order when that order was entered in his absence and without legal representation on his behalf, in violation of his rights under the Soldiers' and Sailors' Civil Relief Act of 1940, _50 U.S.C.App. § 501 et seq. (hereinafter "Soldiers' and Sailors' Act"). We begin with our standard of review. ~A trial court's denial of a petition to strike will not be disturbed absent an abuse of discretion. See Sk/ar v. H_~ar/eysvi//e Ins. Co., 526 Pa. 617, 587 A.2d 1386 (1991); see a/so A//en v. A//en, 30 Cal.2d 433, 182 P.2d 551 (1947) (trial court abused its discretion in refusing to permit serviceman to defend support action); In re Larson, 81 CaI.App.2d 258, 183 P.2d 688 (1947) (trial court abused its discretion in refusing to permit serviceman to defend action to change daughter's name), disapproved of on other grounds, In re/Vlarriage of Schiffman, 28 Cah3d 640, 169 CaI.Rptr. 918, 620 P.2d 579 (1980). With regard to appellant's specific claim, we note that, ~to set aside a [***6] judgment taken against him while he was in the military, he must show that (1) he was prejudiced by reason of his military service, and (2) he had a meritorious [*:397] defense to the underlying action. See 50 U.S.C.ADD. § 520(1)-(4); see a/so Krumme v. Krumme, 6 Kan.APD.2d 939, 636 P.2d 814 (1981); ...35 A.L.R. Fed. 649. Section 200 of the Soldiers' and Sailors' Act provides, in part: (1) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit [**:1293] is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is 1'**'7] in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application made such appointment. (3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him .... (4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant [*398] has a meritorious or legal defense to the action or some part thereof. .../retrieve?_m=f28168182b0114e7691 dded389bea797&docnum=2&_frntstr=_FULL&_startdoc= 3/14/02 Search - 4 Results - soldiers and sailors, act Page 5 of 6 Id. ~'l'he Act applies to all proceedings in the courts of the several [***8] states. Id. § 512; see a/so Bruder v. Carl/n, 402 Pa.Super. 152, 158 n. 3, 586 A.2d 441,444 n. 3 (1991). Judgments entered in violation of this section are merely voidable and not void. Thus, a judgment will remain valid until properly attacked by a serviceman pursuant to § 520, subsection (4). See generally Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L. Ed. 1587 (1943). One of the purposes of § 520 is to prevent default judgments from being entered against persons in the military in circumstances where they might be unable to appear and defend themselves. See, e.g., U.S.v. Kaufrnan, 453 F.2d 306 (C.A.N.Y. 1971). In the instant case, it is undisputed that appellant was serving in the United States Navy on a ship which was deployed in the Mediterranean at the time the April 7, 1989 temporary support order was entered. See N.T. January 10, 1990, at 54. Appellee filed no affidavit showing that appellant was not in the military service. See 50 U.S.C.App. § 520(1). Appellant, however, testified that, in February of 1989, he received a petition for child support and [***9] voluntary acknowledgment of paternity from the domestic relations office. N.T. January 10, 1990, at 54. Appellant testified further that, in response to this petition, the Navy informed the court that appellant was aboard the USS Farragut. Id. at 55. In addition, an assistant director of the domestic relations office testified that he had received notice from the Navy that appellant was aboard the USS Farragut. Id. at 20-22. Nevertheless, the trial court did not appoint counsel to represent appellant in the proceeding for support of J.M., and the order was entered without appellant appearing either in person or through counsel. See 50 U.S.C.App. § 520(3); see also Chenausky v, Chenausky, 128 N.H. 116, 509 A.2d 156 (1986) ~(subsection (3) of § 520 of Soldiers' and Sailors' Act authorizes court to appoint attorney to represent party who does not [*399] appear personally or by attorney in situations not covered by subsection (1)). Thus, it is apparent that appellant was denied the opportunity to make a defense to the support/paternity claim because he was in the military. Accordingly, because appellant was prejudiced by reason of [**'10] his military service, the support order of April 7, 1989 is voidable, see Boone v. Lightnet, supra, provided that appellant has a meritorious or legal defense to the support action. See 50 U.S.C.App. § 520(4). On this point, appellant contends that he is not J.M.'s father, and therefore he [*'12.94] should not be obligated to make support payments. Specifically, appellant argues that his consistent denial of paternity, the fact that the child was born out of wedlock, and the fact that appellant was not listed as the father on the original birth certificate constitute a valid defense to this action. We agree. Appellee, herself, admitted that appellant repeatedly has denied paternity of J.M. See N.T. January 10, 1990, at 4, 46. Although appellant admits to having engaged in sexual relations with appellee while the two were dating in high school, he testified that appellee had also been sexually involved with Other men at that time. Id. at 42- 45. Furthermore, blood tests were never performed in order to establish paternity. In addition, appellant has never treated ~I.M. as his child. For example, he has never sent the [***11] child gifts or cards, and, although he has visited appellee on occasion, he has never made a trip just to visit the child. Id. at 60-61. Finally, appellant asserts that his actions of obtaining medical insurance for the child and placing the child on his BAQ allotment were not voluntary, but were performed due to his belief that he was acting upon orders from the Navy. Id. at 59-60. Based on the above allegations, there is a serious question as to whether appellant, in fact, is the father of J.N. We are aware, of course, that, in any subsequent action on this matter, the evidence may demonstrate that appellant is J.M.'s father. However, for purposes of this appeal, we are satisfied that appellant has a meritorious defense to the support/paternity action. [*400] Appellee, on the other hand, contends that appellant is equitably estopped from denying paternity of ~1.1~1. because he held himself out to be the child's father. ~Under the doctrine of equitable estoppel, if the putative father has indicated by his conduct that the .../retrieve?_m=f28168182b0114e7691 dded389bea797&docnum=2&_fmtstr=FULL&_startdoc= 3/14/02 Search - 4 Results - soldiers and sailors, act Page 6 of 6 child is his own, he is estopped from denying paternity. See Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d :[019 (:[988); [**'12] Manze v. hlanze, 362 Pa.Super. :[53, 523 A.2d 82:[ (1987). Here, the only fact weighing in favor of a finding of equitable estoppel was appellant's action in placing .1.M. on his Basic Allowance for Quarters (BAQ) allotment and arranging for medical insurance for the child through the Navy. See N.T..ianuary 10, :[990, at 51-52. As we have noted above, however, appellant explained that he was required by the Navy to do these acts. J'd. at 52. Every other factor -- i.e., appellee's own testimony that appellant has consistently denied paternity, the fact that appellant has never sent the child a card or a gift, that all of appellant's visits to appellee and her child were for the purpose of seeing appellee, and, finally, that appellant has never lived with appellee and .I.M. and was never married to appellee, id. at 60-6:[ -- indicates that appellant has not held himself out to be .i.M.'s father. Accordingly, we find that appellant is not equitably estopped from denying paternity of .i.M. I~-summary, we find that appellant was prejudiced in presenting his defense to the support/paternity action because of his military service, and that he has a [**'13] meritorious defense to that action. Thus, we must conclude that the court below abused 3 its discretion in denying his motion to have the support order stricken. Accordingly, we reverse the order denying appellant's petition to strike the order of April 7, 1989. See Chenausky v. ........ Chenausk~, supra: (default order for child support against serviceman ~'cated under authority of Soldiers' and Sailors' Act because serviceman could not attend hearing due to military service); A//en v. A//en, supra (order denying defendant's motion to vacate support order reversed under authority of Soldiers' and Sailors' Act where defendant could not attend support ['401] hearing due to military service and court did not appoint attorney to represent him); In re Larson, supra (order denying appellant's motion to vacate decree changing daughter's name reversed under authority of Soldiers' and Sailors' ACt where appellant prejudiced in making defense due to military service). For the foregoing reasons, we quash the appeal from the .iune 27, :[990 order, and we reverse the order of Hay 11, :[990. [*'1295] Appeal [**'14] from order of 3une 27, 1990 is quashed. Order of May :[1, 1990 is reversed..iurisdiction is relinquished. Source: All Sources ·/... / · PA Federal and State Cases Terms: soldiers and sailom, act (Edit Search) View: Full Date/Time: Thursday, March 14, 2002 - 9:30 AM EST About LexisNexis I Terms and Conditions CoDvdQht © 2002 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. .../retrieve?_m=f28168182b0114e7691 dded389bea797&docnum=2&_fmtstr=FULL&_startdoc= 3/14/02 CERTIFICATE OF SERVICE I, Richard C. Rupp, Esquire, attorney for Fred E. Gerber, II, Applicant, hereby certifies that on the date below I served a copy of the foregoing document on the following person, by depositing same in the United States mail, postage . prepaid, addressed to: Stanley J. Laskowski, Esquire Caldwell & Kearns, P.C. 3631 N. Front St. Harrisburg, PA 17110-1533 Amy J. Mendelsohn, Esquire Rhoads & Sinon, LLP Twelfth Floor One South market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Jacqueline M. Verney, Esquire 44 S. Hanover St. Carlisle, PA 17013 Jane N. Heflin 270 N. Garf'~ Rind C. Rup~, Esqui~