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LEE B. ROACH v. MARLYN JOYCE ROACH (03/07/80)

filed: March 7, 1980.

LEE B. ROACH, APPELLANT,
v.
MARLYN JOYCE ROACH



No. 2038 October Term, 1978, Appeal from Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, opening a divorce decree, No. 4559, May Term, 1974.

COUNSEL

Stephen A. Sheller, Philadelphia, for appellant.

Edwin P. Smith, Philadelphia, for appellee.

Wieand, Louik and Robinson, JJ.*fn* Robinson, J., did not participate in the decision of this appeal.

Author: Wieand

[ 275 Pa. Super. Page 321]

On December 1, 1975, the Court of Common Pleas of Philadelphia County entered a decree divorcing Lee B. Roach from Marlyn Joyce Roach. On March 5, 1976, Marlyn Joyce Roach filed a petition to open the decree, which the lower court granted on June 23, 1976. From that order Lee B. Roach appealed.

[ 275 Pa. Super. Page 322]

A petition to open a decree in divorce is equitable in nature and is governed by equitable principles. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); Tanis v. Tanis, 206 Pa. Super. 213, 213 A.2d 102 (1965); Blair v. Blair, 195 Pa. Super. 406, 171 A.2d 854 (1961).

The complaint in the instant case was filed on May 29, 1974. Attempts to serve appellee in Philadelphia proved unsuccessful, and the complaint had to be reinstated on three occasions, the last time being July 29, 1975. Service was effected on August 25, 1975 by registered mail to appellee at 2415 Heaton Park Drive, DeKalb County, East Point, Georgia. The return receipt was signed by appellee. A courtesy copy of the complaint was sent by appellant's counsel to Isaiah Crippens, Esquire, who had been representing appellee in a separate proceeding for support.

Appellee testified that she sent the complaint to her mother with instructions to deliver the same to Attorney Crippens. Appellee's mother testified that she took the complaint to Crippens' home, where she handed it to Mrs. Crippens. Crippens, however, failed to enter an appearance on behalf of appellee in the divorce action.

A hearing before a Master was scheduled for November 10, 1975, and notice thereof was sent via registered mail to appellee at the same Georgia address where the complaint had been served. The notice to appellee was returned, marked "Unknown". No notice was sent to Crippens, who still had not entered an appearance on appellee's behalf. The hearing was attended by appellant and his attorney; neither appellee nor her attorney was present. Thereafter, on November 18, 1975, the Master filed a report recommending that a decree in divorce be granted on the grounds of indignities. Although the Master's affidavit of service suggests that notice of the filing of the Master's Report was sent to "attorney for Defendant", the record contains evidence of notice sent only to appellee at the Georgia address. Appellee denies receiving such notice. No exceptions were filed to the Master's Report, and a decree was entered on

[ 275 Pa. Super. Page 323]

December 1, 1975. Appellee, with new counsel, did file a subsequent appeal nunc pro tunc, but this was withdrawn on March 26, 1976. In its place, appellee filed the petition to open the divorce ...


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