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MILLICENT L. JAKSTYS v. JAMES W. JAKSTYS (03/30/84)

filed: March 30, 1984.

MILLICENT L. JAKSTYS, APPELLANT,
v.
JAMES W. JAKSTYS



No. 2512 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 81-8576.

COUNSEL

David Gutin, Philadelphia, for appellant.

James W. Jakstys, Philadelphia, appellee, in propria persona.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Hoffman

[ 326 Pa. Super. Page 368]

The sole issue on appeal is whether no-fault grounds for divorce survive the non pros of a divorce action for failure to file a bill of particulars. We hold that a bill of particulars is not required in a no-fault divorce action. Accordingly,

[ 326 Pa. Super. Page 369]

    we reverse the order of the court below and remand for a full hearing on appellant's petition for alimony pendente lite, counsel fees and costs.

The parties were married on September 28, 1963, and are currently separated. On May 8, 1981, appellant-wife, Millicent L. Jakstys, filed a Complaint in Divorce based on §§ 201(a)(6) (indignities), 201(c) (irretrievable breakdown and consent), and 201(d) (irretrievable breakdown and three years separation) of the Pennsylvania Divorce Code of 1980. On June 2, 1981, appellee-husband, James W. Jakstys, filed a Praecipe and Rule for a Bill of Particulars, and the Montgomery County Prothonotary ordered appellant to file a bill of particulars within 20 days after service of the rule or suffer a non pros. On July 9, 1981, subsequent to appellant's failure to file the bill of particulars, the divorce action was non prossed. Despite the non pros, on May 4, 1982, appellant petitioned the lower court for alimony pendente lite, counsel fees and costs. Following a hearing, the court denied appellant's petition on August 12, 1982, prompting this appeal.*fn1

The 1980 Divorce Code, 23 P.S. § 101 et seq., while retaining the previous fault grounds for divorce, also added the following "no-fault" grounds:

[1] [where] the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

[2] [where] the parties have lived separate and apart for a period of at least three years, and . . . the marriage is irretrievably broken.

Id. §§ 201(c) and (d)(1). Rule 1920.21 of the Pennsylvania Rules of Civil Procedure, in effect during the lower court proceedings ...


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