Appeal from decree of Court of Common Pleas, Family Division, of Philadelphia, Jan. T., 1971, No. 1524, in case of Michael F. Regan v. Helen M. Regan.
David H. Kubert, for appellant.
William J. MacDermott, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 227 Pa. Super. Page 553]
This matter comes on appeal from the entry of a Final Decree by the Court of Common Pleas of Philadelphia, Family Division, granting husband-appellee a divorce. As required, we have given this matter de novo review and will reverse and refuse the divorce a.v.m.
The parties were married on June 4, 1919, in Philadelphia and both were residing in Philadelphia at the time this action was instituted. Husband-appellee had instituted a prior divorce action in 1953, which was still pending at the time this action was filed and the complaint in the present action failed to state this fact, contrary to the requirements of the Pennsylvania Rules of Civil Procedure. We do not, however, reverse on that ground, since apparently the Master granted the right
[ 227 Pa. Super. Page 554]
to amend and the prior action was, in fact, discontinued as of November 17, 1972, prior to the filing of the Master's Report, although subsequent to the taking of testimony. We condemn this as bad practice and procedure as it is contrary to the purposes of the rules of procedure on this matter.
The two children born of this marriage are Mary, now in her 54th year and married, and Alice, now in her 52nd year and married. The wife is in her 76th year and the husband is in his 79th year. The parties finally separated in August of 1936, although there were periods of separation in 1933 and 1934 (T. 66 -- Hearing of August 7, 1972), when Mr. Regan left the common abode.
This divorce is sought on the grounds of indignities, and was recommended by the Master and granted by the Court below on that ground. It has been, therefore, at least 38 years since the occurrence of the events giving rise to this action. It is clear from the testimony taken in the two hearings before the Master*fn1 that this time lapse has greatly dulled the ability of even the parties themselves to recall the details of their marriage, and the only other witness, their daughter Alice, was only 14 years of age in 1936.
There is no general statute of limitations applicable to divorce actions and generally mere delay in bringing a divorce action is not a ground for denial of the relief sought. Larsen v. Larsen, 184 Pa. Superior Ct. 221, 132 A.2d 883 (1957). However, long delay in bringing a divorce action after separation casts doubt on the good faith of the plaintiff. Orme v. Orme, 177 Pa. Superior Ct. 209, 110 A.2d 870 (1955). Accordingly, ...