No. 927 Pittsburgh, 1981, Appeal from the Decree entered August 24, 1981, Court of Common Pleas, Allegheny County, Family Division, at No. 1015 January Term, 1979.
Howard T. Gilfillan, Pittsburgh, for appellant.
Harry T. Gruener, Pittsburgh, for appellee.
Spaeth, Johnson and Hoffman, JJ.
[ 299 Pa. Super. Page 401]
This appeal is taken from a Decree in Divorce entered August 28, 1981. The sole issue raised by Appellant is whether the lower court abused its discretion in denying her Petition to Re-Open Master's Hearing. We find no abuse of discretion and, therefore, affirm the decree granted.
Robert C. Aloi (Appellee) filed his Complaint in Divorce in November, 1978. A Master was appointed on March 16, 1979, who thereupon scheduled a hearing on the Complaint for June 19, 1979. At the request of counsel of record for
[ 299 Pa. Super. Page 402]
Mary Jo Aloi (Appellant), the hearing was continued. On June 12, 1979, the Master sent a letter to counsel of record for both parties, informing them that the Master's Hearing was rescheduled for July 3, 1979, at 9:30 a.m.
A Petition for Continuance was prepared on behalf of Appellant and was signed and acknowledged by Appellant's counsel of record on June 15, 1979. However, the Petition was not presented before the Administrative Judge of the Family Division of the lower court until the morning of July 2, 1979, the day before the rescheduled hearing. The Petition, which had not been acknowledged by Appellant, but by her counsel of record, averred that Appellant was "without sufficient funds to properly prepare for a defense" and that a separate petition for counsel fees and expenses was scheduled to be heard before another Family Division judge on July 16, 1979.
The Petition for Continuance was presented to the Administrative Judge by an attorney other than the counsel of record who had signed and sworn to the truth of the averments contained therein. Appellant was not present at the time the Petition was presented, and substitute counsel neither presented nor offered any testimony to support the averments contained in the Petition. After argument by opposing counsel and due consideration by the court, the Petition for Continuance was refused.*fn1
The Master's Hearing was thereafter held the next day, as originally scheduled by letter of June 12, 1979. Neither Appellant nor Appellant's counsel of record appeared for, or attended, the hearing. The Notes of Testimony reveal the following, regarding the manner in which the Master's Hearing was begun and continued:
THE MASTER: This is the time set for trial of the contested divorce action of Robert C. Aloi versus Mary Jo Aloi at 1015 January, 1979.
[ 299 Pa. Super. Page 403]
It is now 10:05 a. m., and Mr. Urbanik, nor his clients, have showed for this hearing, appeared for this hearing. At 9:40 a. m. I called Mr. Urbanik's office, and a person purporting to be his secretary informed me that he would not be in today and that an attorney by the name of Richard Brandt would be taking his place, would be here in his stead. I asked her when we might expect Richard Brandt, and she said that his office had informed her that he had left for the Courthouse 10 minutes earlier.
Some 25 minutes having elapsed since that phone call, I don't think it's advisable to wait any longer to proceed with this hearing.
It should be noted that we attempted to schedule this prior date of June 19th, but Mr. Urbanik wanted it continued, and it was then, on July -- on June 12th, I'm sorry, I sent a letter to Mr. Urbanik and Mr. Raphael advising them that the hearing date would be July 3rd.
In reference to that, Mr. Urbanik filed a petition to have this matter continued, and a hearing was conducted before the Honorable John Brosky, Judge, Administrative Judge of the Family Division, and, on the 2nd of July, 1979, the application for continuance was refused.
Do you want to swear the witnesses?
MR. RAPHAEL: If the Master please, at the hearing yesterday, with reference to the continuance, in which Judge Brosky refused Mr. Urbanik's request for a continuance, the counsel who spoke on behalf of Mr. Urbanik requested that we furnish him with answers to the interrogatories which had been served to us on June 28th, 1979.
I think the record also ought to note that on several occasions I had to write to Mr. Urbanik asking him to please answer the interrogatories that I served on him, and I only received them, I think -- on June 28th did I receive the answers to the interrogatories, considerably late, and only after I told him that I would object to any witnesses testifying if he didn't tell me who his witnesses were going to be.
[ 299 Pa. Super. Page 404]
But yesterday I advised them that I would respond to their interrogatories, and I did so by having a messenger from our office personally deliver them to Mr. Urbanik's office, which was probably within six or seven days from the date that I received the request for interrogatories. So, ...