Appeal from order of Court of Common Pleas of Luzerne County, March T., 1968, No. 1446, in case of Anthony F. Quattrone v. Constance M. Quattrone.
W.J. Krencewicz, for appellant.
Martin D. Cohn, with him Lawrence B. Cohn, and Laputka, Bayless, Ecker & Cohn, for appellee.
Watkins, P.j., Jacobs, Hoffman, Price, Van der Voort, and Spaeth, JJ. (Cercone, J., absent). Opinion by Jacobs, J.
[ 240 Pa. Super. Page 620]
In March of 1968 plaintiff-appellee, Anthony F. Quattrone, filed a complaint in divorce in the Court of Common Pleas of Luzerne County. His wife, Constance M. Quattrone, appellant in this case, answered the complaint and in addition thereto filed a petition for alimony pendente lite, counsel fees and expenses. In August, 1968, the court in Luzerne County ordered appellee to pay appellant $100.00 each week for herself and the three minor children of the marriage and the sum of $500.00 for counsel fees. After the filing of a Bill of Particulars on February 21, 1969, nothing further was done with the divorce action until March 6, 1975 when appellee personally filed a motion with the Prothonotary of Luzerne County to discontinue the action as of that date. Subsequently, on July 3, 1975, appellant filed a petition to strike off the discontinuance alleging that she was prejudiced thereby.
A hearing on the petition was held on July 22, 1975 where the following facts were revealed: (1) After commencement of the divorce proceedings appellee had
[ 240 Pa. Super. Page 621]
moved to Bradford County and then to Lycoming County; (2) At the time of the hearing, he had resided in Lycoming County for five years and had recently commenced a divorce action there against appellant; (3) At the time of the hearing, appellant was a resident of Schuylkill County; (4) Appellant had never received the $500.00 from appellee for counsel fees pursuant to the Luzerne County Court's August 1968 order; (5) Appellant was not receiving sufficient support payments, however, proceedings were underway in Schuylkill County on that matter. The record also disclosed that appellant was represented by counsel at the divorce proceedings in Lycoming County. The court below found that appellant was not being subjected to any unreasonable inconvenience, vexation, harassment, expense or prejudice by the discontinuance. Accordingly, appellant's petition to strike off the discontinuance was denied on the condition that appellee would pay appellant counsel fees in the sum of $500.00. The present appeal followed.
The right of a party to obtain a discontinuance of an action is governed by Rule 229 of the Pennsylvania Rules of Civil Procedure. Rule 229 provides inter alia:
"(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial. . . .
"(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice."
"Decisions as to the granting of such requests for discontinuances rest in the discretion of the trial judge and can be reviewed only as to the abuse of that discretion." Martinelli v. Mulloy, 223 ...