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WARGO v. WARGO. (11/11/59)

November 11, 1959

WARGO, APPELLANT,
v.
WARGO.



Appeal, No. 316, Oct. T., 1959, from order of Court of Common Pleas of Schuylkill County, May T., 1949, No. 136, in case of Albert W. Wargo v. Lucille M. Wargo. Motion to quash dismissed; order, as modified, affirmed.

COUNSEL

D.J. Boyle, with him John T. Pfeiffer, III, for appellant.

Rocco C. Falvello, with him John Skweir, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Wright

[ 191 Pa. Super. Page 11]

OPINION BY WRIGHT, J.

This case comes before us for the third time.*fn1 The present appeal is from an order of the court below directing appellant to pay the sum of $400.00 additional counsel fees. The parties were married on October 2, 1920, and separated on April 5, 1948. On March 21, 1949, the husband filed a complaint in divorce on the grounds of cruel and barbarous treatment and indignities to the person. On April 18, 1949, the wife petitioned

[ 191 Pa. Super. Page 12]

    for alimony pendente lite and counsel fees. Upon being ruled to do so, the husband, on May 13, 1949, filed a bill of particulars containing averments of misconduct "suggestive of adultery". On July 25, 1949, the court below directed the payment of $50.00 per month alimony pendente lite, and the sum of $75.00 counsel fees. On August 8, 1949, upon petition of the husband, a rule was granted to show cause why the divorce action should not be discontinued. On March 20, 1950, this rule was discharged on the ground that the averments of misconduct in the bill of particulars had not been retracted.*fn2 The husband thereafter took no action in the divorce proceeding. However, as will appear from our former opinions, the wife made repeated efforts, eventually unsuccessful, to collect arrearages on the award of alimony pendente lite.

The particular proceeding leading to the instant appeal had its inception on March 9, 1959, when the wife, appellee here, filed a petition for additional counsel fees in the sum of $1,200.00, plus printing costs. The petition contained an averment that the husband was regularly employed by the Chevrolet Company in Tonawanda, New York, earning approximately $7,500.00 per year. To the rule granted on said petition the husband filed an answer containing only a general denial which, under Pa. R.C.P. 1029, had the effect of an admission. Cf. Foust v. Foust, 144 Pa. Superior Ct. 513, 19 A.2d 517.

Appellant's first two, and principal contentions, may be treated together. He argues that additional counsel fees may not be awarded (1) where the divorce action had been abandoned for a period of over ten years and (2) where the services of counsel consisted solely of fruitless attempts to collect arrearages of alimony pendente lite. We have repeatedly stated

[ 191 Pa. Super. Page 13]

    that the amount to be allowed as counsel fees is within the discretion of the court below, and that the appellate court will not interfere in the absence of a clear showing of an abuse of that discretion.*fn3 While appellant attempted to abandon the action, this circumstance is not conclusive so far as the instant proceeding is concerned. Appellant was in fact denied permission to discontinue. See Goodrich-Amram, Section 229-8. The action remains open on the records of Schuylkill County, where it is now "spread over" some eighteen pages of the docket. Nor are we persuaded by appellant's contention that the services of counsel were fruitless. The legal questions involved in the prior appeals were theretofore unsettled, ...


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