No. 41 Pittsburgh, 1981, Appeal from the Decree of the Court of Common Pleas, Family Division, of Allegheny County, No. 0429 July Term, 1978.
Douglas W. Reed, Pittsburgh, for appellant.
Richard F. Welsh, Pittsburgh, for appellee.
Wickersham, Wieand and Beck, JJ. Wieand, J., files a dissenting opinion.
[ 298 Pa. Super. Page 263]
This is an appeal from Decree entered December 17, 1980, after hearing on appellant-wife's exceptions to the Master's
[ 298 Pa. Super. Page 264]
report, finding that appellant-wife committed wilful and malicious desertion, and was absent from the habitation of the injured and innocent spouse, without reasonable cause, for and during the term and space of two years.*fn1 The decree divorced the parties from the bonds of matrimony.
Appellant-wife asserts on appeal that:
(1) Appellee-husband is precluded from claiming that he had sufficient cause to leave the marital residence since this has already been litigated and determined against him; and
(2) The evidence presented by appellee-husband is insufficient under the law to establish either wilful and malicious desertion by appellant-wife or that appellee-husband is an innocent and injured spouse. We find that appellant-wife prevails on both grounds.
The complaint in the instant action at No. 0429 July 1978 filed by appellee-husband herein recited that the prior actions in divorce filed by appellee-husband were:
"An action filed at 3946, July of 1974, in the Court of Common Pleas of Allegheny County, Family Division, June 26, 1974. Order of Court withdrawing action in divorce filed December 1, 1974, and an action filed at 0263, October Term, of 1976, wherein the divorce on the grounds of indignities were denied."
In fact, the record reveals that No. 0263, October Term, of 1976 (hereinafter referred to as the 1976 action) asserted both indignities and desertion as grounds. The following facts with regard to the procedural posture of the grounds asserted were found in the 1976 action by the honorable court en banc which heard exceptions to that Master's report filed by appellee-husband herein:*fn2
"A side bar conference was held off the record after which the plaintiff moved to amend his complaint to strike
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the grounds of desertion and elected to proceed ...