Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, June T., 1972, No. 2961, in case of Albert Whitehead v. Catherine Majerczak Whitehead.
Leslie L. Engle, for appellant.
No oral argument was made nor brief submitted for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J. Watkins, J., dissents.
[ 224 Pa. Super. Page 304]
This is an appeal from an order denying a petition by a husband for leave to proceed in forma pauperis in an action against his wife for divorce a vinculo matrimonii.
The appellant's petition, filed in June of 1972, averred that his ground for divorce would be his wife's adultery. He asserted that an extensive police record precluded his employment, that he was supported by his parents, and that he had no savings, realty, or automobile. He also averred that his finances supplied only the necessities of life, that he was undergoing
[ 224 Pa. Super. Page 305]
therapy for drug addiction, that he was unable to pay the fees, costs, and expenses of the divorce action, and that he believed his wife was receiving public assistance.
At a hearing regarding the petition on July 28, 1972, the appellant-petitioner testified that he was receiving $69 twice a month from public assistance and that for about the previous 7 years he had been "more or less, in and out" of prison. He stated that his attempts at holding employment had been frustrated by his employers' discovery of his record, that he was presently "under the Pennsylvania State Board of Parole," and that he was not presently taking drugs. His most recent incarceration, he testified, had lasted for 16 months and had ended in October of 1971, following a reversal of his conviction.
The wife of petitioner-appellant testified that at the time of the hearing she and her husband had been married for about 12 1/2 years and had been separated for about 2 years. She stated that one of her two children, a 10-month-old daughter, was the child of a man other than her husband, whom she named, and that that man contributed to the support of the child through a court order. She further testified that her husband had supported his own child at such times as he had a job, prior to their separation, but not at other times. She stated that she was receiving public assistance at the time of the hearing.
On August 1, 1972, the lower court denied the appellant's petition, by discharging the rule which had been granted on the wife to show cause why the appellant should not be permitted to proceed in forma pauperis. In its opinion in support of the order, the lower court indicated that a lack of good faith on the part of the appellant was the basis for the denial of the petition. It ...