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JUMPER v. JUMPER (04/22/76)

decided: April 22, 1976.

JUMPER, APPELLANT,
v.
JUMPER



Appeal from order of Court of Common Pleas of Cumberland County, Feb. T., 1971, No. 492, in case of Lester S. Jumper v. Ruth L. Jumper.

COUNSEL

John McCrea, III, and McCrea & McCrea, for appellant.

John H. Broujos and Taylor P. Andrews, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Hoffman and Price, JJ., concur in the result. Dissenting Opinion by Spaeth, J.

Author: Van Der Voort

[ 240 Pa. Super. Page 100]

On January 29, 1971, the appellant filed a complaint in divorce against his wife of almost twenty-eight years.*fn1 The grounds for divorce were indignities, and appellant averred that his wife was not an incompetent.*fn2 Upon

[ 240 Pa. Super. Page 101]

    petition of appellee's attorney, and for purposes of proceeding, a guardian ad litem was appointed to represent her because of an April 10, 1972, ajudication of incompetency. Appellee then answered the complaint, admitting appellant's allegation of competency and generally denying the allegation of indignities. On July 12, 1973, appellant filed a bill of particulars wherein he alleged that certain difficulties developed from three years after their marriage and continued until 1964, when they separated, which difficulties established a course of conduct by appellee of contumely and hatred from appellee to appellant and their children. No answer was filed, nor is one necessary.*fn3 A master was appointed to hear testimony, and testimony was heard in two parts, the master believing that the first session should be continued until such time as appellee's sanity or hopeless insanity could be established.*fn4 The lower court remanded for further proceedings and fact-finding, pointing out that the case was structured on "indignities", not on an allegation of lunacy (see "The Divorce Law", supra, ยง 53), and further pointing out that the posture of this case could permit the use of mental incompetence only as a defense, which if proved, would not allow a fact-finding of indignities. Citation was made by the lower court to Boggs v. Boggs, 221 Pa. Superior Ct. 22, 289 A.2d 479 (1972). The second hearing session was held; no new substantive testimony was presented; and a second master's report resulted wherein the master found as fact that "the acts complained of by the plaintiff as constituting indignities were committed while the defendant suffered mental derangement or mental illness". The recommendation for dismissal of the action in divorce was accepted by the lower court, which on

[ 240 Pa. Super. Page 102]

April 16, 1975, dismissed appellant's exceptions to the report of the master and dismissed the complaint in divorce. It is this Order which is the subject of the instant appeal.

Of initial concern to us is whether the defense of insanity was properly before the master; appellee in her answer to the complaint admitted competency at the time of the filing of the complaint and generally denied indignities, the grounds alleged for divorce. This appears to be an inconsistency. However, we believe that in the circumstances of this case appellee's defense must not be prejudiced by her guardian's inattention to the possible implications of "admitting" appellant's averment of competency. Our Rules of Civil Procedure, at No. 1129, permit a general denial, and this appellee posited to appellant's averment of "indignities". Therefore, we hold that a sufficient denial was proposed, to permit appellee to develop properly her defense at the hearing.

Appellant first challenges this defense, arguing that appellee's expert's testimony should have been excluded as irrelevant, and records regarding appellee's hospitalization excluded. As an employee of the Harrisburg Hospital Mental Health and Mental Retardation Center, one Dr. R. H. Coronado, a psychiatrist, had occasion to examine appellee as a patient at the Harrisburg State Hospital. He met with appellee on July 24, and August 2, 1975, reviewed her history, discussed her medical condition at staff meetings, and concluded that appellee was a manic-depressive psychotic. Based upon his study of appellee's history, he opined that this diagnosis related back to the period in question in the divorce suit, but not necessarily to the time when he interviewed appellee. Appellant argues against the admissibility of this testimony because it was ...


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