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JOAN E. GORNIAK v. MICHAEL E. GORNIAK (01/10/86)

filed: January 10, 1986.

JOAN E. GORNIAK, APPELLEE,
v.
MICHAEL E. GORNIAK, APPELLANT



Appeal From Judgment Entered October 11, 1984 Court of Common Pleas, Civil Division, Erie County, No. C.D. No. 3857 - A - 1981.

COUNSEL

William R. Cunningham, North East, for appellant.

Charles D. Agresti, Erie, for appellee.

Cavanaugh, Johnson and Watkins, JJ.

Author: Cavanaugh

[ 350 Pa. Super. Page 503]

This case involves a petition for divorce filed by Joan E. Gorniak against her husband, Michael E. Gorniak. A master's hearing was held at which the testimony apparently was stenographically reported. The master's report on page 28 directed that "stenographic costs for the master's hearing" be shared equally between the parties. The master made findings of fact and recommended that a divorce

[ 350 Pa. Super. Page 504]

    be granted. He further made recommendations as to equitable distribution of marital property. The plaintiff and defendant filed exceptions to the master's report. The court below in an opinion by Fischer, J. denied all exceptions and adopted the master's recommendations as the order of the court. The defendant below, Michael E. Gorniak, appealed to this court.

The record as transmitted to this court does not contain a transcript of the proceedings before the master. In a divorce case it is the responsibility of this court to make a de novo evaluation of the record of the proceedings and to decide independently of the master and the court below whether there is a legal cause of action. Mott v. Mott, 308 Pa. Super. 1, 453 A.2d 1038 (1982); Keller v. Keller, 275 Pa. Super. 573, 419 A.2d 49 (1980). We are unable to properly review the record in a divorce case where there has been no transcript of the proceedings below. Moslen v. Moslen, 260 Pa. Super. 508, 394 A.2d 1042 (1978). In the case before us we have no transcript of the proceedings before the master and the docket entries indicate that none was filed in the court below. Pa.R.C.P. 1920.53 provides inter alia:

Rule 1920.53. Hearing by Master. Report

(a) In an action in which the action of divorce or for annulment and any claim which may be joined under the Divorce Code are heard by a master,

(1) the master shall file the record and a transcript of the testimony together with the report and recommendation within twenty days after the hearing in uncontested actions and, in contested actions, within thirty ...


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