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WELLS v. WELLS. (12/12/62)

December 12, 1962

WELLS, APPELLANT,
v.
WELLS.



Appeal, No. 56, April T., 1962, from decree of Court of Common Pleas of Fayette County, June T., 1956, No. 320, in case of Mary B. Forsyth Wells v. William C. Wells, also known as Willie C. Wells. Decree affirmed.

COUNSEL

Dail E. Sloan, with him Eugene C. Sloan, and Thomas H. Hudson, jur., for appellant.

Joseph E. Kovach, for appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Rhodes

[ 200 Pa. Super. Page 10]

OPINION BY RHODES, P.J.

This is an appeal by wife-plaintiff from a decree of the Court of Common Pleas of Fayette County dismissing her complaint in divorce on the grounds of desertion and indignities.

The issues presented on this appeal, with a record of about 500 pages, are: (1) Could the court in banc, being constituted differently from the court which heard the argument, enter the final decree; (2) did the master err in failing to make specific findings of fact in the form provided by the local court rules; (3) was a finding of the court with respect to cohabitation during a certain period contrary to fact; and (4) was appellant entitled to a divorce?

At the time of argument on exceptions to the master's report before the court in banc in June, 1959, the court in banc consisted of President Judge BANE and Judges MUNSON and DUMBAULD. At the time the court in banc entered a final order in August, 1961, dismissing plaintiff's exceptions, the court in banc consisted of President Judge BANE and Judges MUSON and FEIGUS.

There is no merit in plaintiff's contention that the change in the court in banc invalidated the final order and decree.

A court in banc bas the authority to transact business as long as the number of judges is not reduced below that legally required for the transaction of its business. Com. v. Petrillo, 340 Pa. 33, 48, 16 A.2d 50; Com. ex rel. Gregory v. Gregory, 188 Pa. Superior Ct. 350, 356, 146 A.2d 624; Lockhart v. Longmore, 189 Pa. Superior Ct. 455, 459, 151 A.2d 829. Nor is there error regarding the conformity of the master's report to court rules. Plaintiff maintains that the master did not make specific findings of fact on the merits, contrary to the local court rules, and that the findings which were made were mere conclusions. In view of

[ 200 Pa. Super. Page 11]

    the clear, extensive, and detailed discussion of the facts by the master in his report, and the law applicable, under the heading of "Discussion," we are of the opinion that no useful purpose would be served in resubmitting the record to the master. There has been a substantial and adequate compliance with the rules of the Court of Common Pleas of Fayette County.

Another issue presented on this appeal is whether there was error in denying the divorce. In divorce cases heard without a jury we are obliged to review the record and make an independent determination as to whether the evidence warrants a decree. Manley v. Manley, 193 Pa. Superior Ct. 252, 254, 164 A.2d 113; Levitz v. Levitz, 199 Pa. Superior Ct. 327, 185 A.2d 620.

Plaintiff, Mary B. Forsyth Wells, now seventy-six years of age, and defendant, William C. Wells, now sixty-nine years of age, were married at Greensburg, Pennsylvania, on January 8, 1916. On March 12, 1916, a child, ...


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