No. 781 October Term 1979, Civil Action, Law-Appeal from the Order of the Court of Common Pleas, Chester County, Trial Division, entered April 4, 1979 at No. 272, May Term, 1978 Divorce A.V.M.
Judith Eichen Fellheimer, Philadelphia, for appellant.
Henry L. Shrager, Philadelphia, for appellee.
Wickersham, Brosky and Roberts, JJ.*fn*
[ 281 Pa. Super. Page 284]
In May of 1978 Richard Tulp Brown filed a Complaint in Divorce against Mary Jo Brown, appellant, in Chester County, Pennsylvania. Mary Jo, who lived in California at the time appeared by counsel Judith Eichen Fellheimer, Esquire and filed an Answer and Counterclaim in Divorce, alleging inter alia that her husband had committed adultery with one Barbara S. She sought a divorce from bed and board with alimony, counsel fees and costs.
On April 4, 1979 Plaintiff Richard Tulp Brown filed a request to discontinue his Complaint in Divorce and President Judge D. T. Marrone directed the Prothonotary to mark the complaint as discontinued without prejudice.*fn1
[ 281 Pa. Super. Page 285]
Counsel for the defendant-appellant was notified in accordance with said Rule.
Appellant, Mary Jo Brown took an appeal to this court from Judge Marrone's Order of April 4, 1979.*fn2
As President Judge Marrone points out in his Opinion Pa.R.C.P. 232 sets forth that:
(a) A discontinuance or non-suit shall not affect the right of the defendant to proceed with a ...