Appeal, No. 281, Oct. T., 1963, from order of Court of Common Pleas of Delaware County, Dec. T., 1961, No. 1753, in case ofWalter F. Wolfe v. Alberta Ludwig Wolfe. Order, as modified, affirmed.
Joseph I. Diamond, for appellant.
Angelo D. Di Pasqua, with him Caine and Di Pasqua, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery and Flood, JJ.
[ 202 Pa. Super. Page 70]
We are here concerned with an appeal from an order of the court below awarding additional counsel
[ 202 Pa. Super. Page 71]
fees to the wife in an action for divorce a.v.m. instituted by the husband. The record discloses the following situation:
On January 29, 1962, the husband filed his complaint on the grounds of desertion and indignities to the person. The wife filed an answer and a petition for counsel fees. On April 19, 1962, the court below ordered payment of the sum of $150.00 on account of counsel fees. A master was appointed on May 31, 1962, and testimony was taken at hearings on July 13, 1962, July 23, 1962, and August 13, 1962. The master's report has not yet been filed.
The instant proceeding had its inception in a petition filed by the wife on February 15, 1963, requesting additional counsel fees. After hearing testimony and argument, the court below, on June 28, 1963, ordered payment in the sum of $1,500.00, adding a proviso "that the within order shall not bar a further petition for additional counsel fees for services rendered to date by defendant-petitioner's counsel in the event that the master's report to be filed herein is in favor of the defendant-petitioner". On July 18, 1963, the husband appealed to this court.
The court below thereafter without jurisdiction to proceed further with the cause: Commonwealth ex rel. Podvasnik v. Podvasnik, 198 Pa. Superior Ct. 107, 181 A.2d 843. And see Sowers Estate, 383 Pa. 566, 119 A.2d 60. Notwithstanding this fact, the record discloses that on August 16, 1963, upon the wife's petition a rule was granted for additional counsel fees and costs, together with a rule to reopen the testimony. On September 25, 1963, the rule to reopen the testimony was made absolute. On ...