No. 721 Pittsburgh, 1983, Appeal from the Order entered May 19, 1983, Court of Common Pleas, Mercer County, Civil Division at No. 479 C.D. 1981.
Herman M. Rodgers, Sharon, for appellant.
Peter C. Acker, Sharon, for appellee.
Rowley, Johnson and Popovich, JJ. Popovich, J., noted his dissent.
[ 330 Pa. Super. Page 97]
On December 7, 1981 Appellant, Pauline A. Skladanek, and Appellee, Stanley R. Skladanek, were granted a divorce in a bifurcated proceeding. Prior to the divorce both parties signed affidavits of consent which provided in paragraph 5 that "at anytime, prior to the expiration of one (1) year from and after the entry of a Final Decree in Divorce, either party to this action shall have the right to litigate a claim for alimony, equitable distribution of marital property and for any other right or claim cognizable under the
[ 330 Pa. Super. Page 98]
Divorce Code." (Appellant's Affidavit of Consent filed 12/7/81)
At the time the divorce was granted both parties had already responded to written interrogatories seeking personal financial information. Less than three months later on March 3, 1982 Appellant filed with the trial court a document entitled "Financial Statement of Assets and Debts of Pauline Skladanek." The obvious purpose of the filing of this document was to provide the court with information to assist it in the permanent alimony and equitable distribution phases of the case.
Thereafter on March 5, 1982 Appellant filed a Notice of Taking Deposition of Samuel Messina, the Personnel Practices Supervisor for Appellee's employer, Westinghouse Electric Corporation. The deposition, originally scheduled for April 8, 1982, was changed to April 6, 1982 for the convenience of counsel. Mr. Messina appeared for the deposition on April 6, 1982 but no testimony was taken. Apparently Appellee's counsel objected to the taking of the deposition because leave of court had not been obtained to take the deposition and because the deponent, Mr. Messina, did not have the express authorization of Appellee to testify as to matters at that deposition. (N.T. 1/31/83 at 4) A short time later the proper authorization form signed by Appellee was delivered to Appellant's counsel. (N.T., 1/31/83 at 5)
On January 5, 1983 Appellant filed a Motion for Hearing with the trial court asking the court to set a date "for a hearing on the question of permanent alimony and equitable distribution." A hearing on the motion was scheduled for January 31, 1983. At that hearing counsel for Appellee objected, arguing that further action in the case was barred by the Appellant's affidavit of consent. (N.T., 1/31/83 at 1-2)
The trial court on May 19, 1983 refused the motion for a hearing on the question of permanent alimony and equitable distribution based on its belief that Appellant took no action within one ...