Appeal from order of Court of Common Pleas of Washington County, May T., 1961, No. 28, in case of Donald Deigan v. Rosemarie Deigan.
Paul A. Simmons, with him Tempest & Simmons, for appellant.
Armin H. Friedman, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 210 Pa. Super. Page 241]
This contested divorce action was discontinued by the plaintiff-appellee with leave of court after four hearings had been held by a master, the last of which
[ 210 Pa. Super. Page 242]
being adjourned to a later date. It thus appears that the record of testimony was not complete. However, the final order allowing the discontinuance provided that all actions sounding in divorce which had arisen before May 4, 1961, the day on which the complaint had been filed, were res judicata. Although our review on this appeal by the defendant is limited to a determination of whether the trial judge has abused his discretion, Pesta v. Barron, 185 Pa. Superior Ct. 323, 138 A.2d 690 (1958), we so find such an abuse because this part of the order was contrary to Pa. R. C. P. 231. This rule provides that after a discontinuance or voluntary non-suit the plaintiff may commence a second action upon the same cause of action upon payment of the costs of the former action. It was, therefore, an invalid condition to the order allowing the discontinuance.
Since the allowance of a voluntary non-suit after a plaintiff has rested his case is a discretionary matter with the trial judge, we are unable to say on this record whether the lower court would have granted such leave without the aforesaid condition. For that reason also the order must be reversed and the case remanded to the lower court for further consideration as to the allowance of a non-suit, since a discontinuance would be improper as appears from our later discussion herein.
The facts before us indicate that this defendant has been put to considerable expense and annoyance by the numerous actions in divorce filed by the plaintiff.*fn1
[ 210 Pa. Super. Page 243]
Therefore, it is obvious why the lower court tried to put at rest some of their differences.
In remanding we direct our attention to the argument advanced by the defendant that it was improper to discontinue the case since it had proceeded to trial, which we think should be answered. Under Pa. R. C. P. 229, a discontinuance by the plaintiff is permissible only prior to trial. Pa. R. C. P. 230 declares a voluntary non-suit to be the exclusive method of voluntary termination by a plaintiff during trial; that it may not be suffered without leave of ...