Appeal from the Decree of the Court of Common Pleas, Civil Division, of Northampton County, at No. 1982-C-3091.
Richard J. Shiroff, Easton, for appellant.
Bernard V. O'Hare, Jr., Bethlehem, for appellee.
Montemuro, Popovich and Watkins, JJ. Montemuro, J., files a concurring opinion.
[ 346 Pa. Super. Page 316]
This is an appeal from the order dated March 20, 1984, of the Court of Common Pleas of Northampton County, granting a divorce to the plaintiff, Dorothy A. Crookes. We reverse.
[ 346 Pa. Super. Page 317]
On April 19, 1982, the plaintiff filed a complaint seeking a divorce from the defendant, James S. Crookes.
The complaint contained a standard notice to defend clause, with a caveat that if the defendant did not file a request for, inter alia, "marital property", he might "lose the right to claim" it.
The divorce complaint was divided into five counts. The first count alleged that the parties had lived separate and apart "since Monday, October 26, 1981, and the marriage [was] irretrievably broken." (Paragraph 5) The second averred that the defendant "offered such indignities to . . . the Plaintiff . . . to render her condition intolerable and her life burdensome." (Paragraph 9) Count three sought alimony pendente lite, counsel fees and costs incidental to the litigation. The fourth count requested an award of permanent alimony following the divorce. In the last count, the plaintiff requested that "the Court equitably divide, distribute, and assign the marital property between Plaintiff and Defendant in such proportions as the Court deem[ed] just upon considering all of the relevant factors." (Paragraph 20)
Service of the complaint was effectuated on the defendant by certified mail with return receipt dated April 26, 1982.
The next matter of interest we find relevant to the instant discussion concerns a copy of the plaintiff's affidavit submitted pursuant to the dictates of Section 201(d) of the Divorce Code.*fn1 The affidavit reads:
[ 346 Pa. Super. Page 318]
PLAINTIFF'S AFFIDAVIT UNDER SECTION 201 D OF THE DIVORCE CODE
1. The parties to this action have lived separate and apart under Section 201 D of the Divorce Code since on or about May 1, 1979 and have continued to live separate and apart since that time.
2. The marriage is irretrievably broken.
3. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted.
4. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities.
In accordance with the then applicable Pa.R.Civ.P. 1920.4(c), which is now found in substantially the same form at Pa.R.Civ.P. 1920.4(c)(1) (1985 version), proof of service of the Section 201(d) document was averred as having occurred by mail on the 5th of August, 1983 at the defendant's residence. His attorneys at the time were also duly notified, according to the certification of service by counsel for the plaintiff.
Interestingly, because of the continuation of the present divorce action in August of 1983, Pa.R.Civ.P. 1920.73, which became effective on July 1, 1983, was "appl[icable] to actions then pending." (See 1985 version of Rule under the "Effective Date and Application" legend) The awareness of the applicability of Rule 1920.73 by counsel for the plaintiff is evident from his completion of a "Praecipe To
[ 346 Pa. Super. Page 319]
Transmit Record" in the form identical to that set forth in the Rule;*fn2 viz.:
Transmit the record, together with the following information, to the Court for entry of a divorce decree:
[EDIT ] IS OVERSTRUCK IN THE SOURCE.]
1. Ground for divorce: irretrievable breakdown under Section ([O> 210(e)
2. Date and manner of service of the complaint: Service made by certified ...