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DONALD E. CREACH v. ELLEN CREACH (03/19/87)

filed: March 19, 1987.

DONALD E. CREACH, APPELLANT,
v.
ELLEN CREACH



Appeal from the Order of the Court of Common Pleas, Civil Division, of Beaver County, at No. 1860 of 1980.

COUNSEL

Nicholas H. Krayer, III, Beaver, for appellant.

Ahmed Aziz, Assistant District Attorney, Sewickley, for appellee.

Cirillo, President Judge, and Rowley and Popovich, JJ.

Author: Popovich

[ 361 Pa. Super. Page 483]

This is an appeal from an order of the Court of Common Pleas of Beaver County vacating a decree in divorce entered

[ 361 Pa. Super. Page 484]

    in favor of the plaintiff/appellant, Donald E. Creach. We affirm.

On October 6, 1980, the plaintiff filed a complaint in divorce alleging indignities and irretrievable breakdown of the marriage as the grounds for the divorce. See 23 P.S. § 201(a)(6) & (c). The complaint was served on the defendant by certified mail, return receipt requested. However, the defendant did not file an answer nor enter an appearance by way of counsel. In fact, except for two objections to terminate the case for inactivity in 1983 and 1985, the case lay dormant until 1986.

Present counsel for the plaintiff filed an appearance dated March 21, 1986, and at the same time an affidavit under 23 P.S. § 201(d), alleging the parties had lived separate and apart for a period of more than three years, was submitted to the prothonotary. At the end of the document, an affidavit of service by first class mail upon the defendant was executed by the plaintiff's attorney.

With the defendant's failure to file a counter-affidavit within twenty days after service of the affidavit (notice of which was included therein), the plaintiff filed and served on the defendant a Praecipe to Transmit the record to the court for entry of a divorce decree. No objections were filed, and the court entered a divorce decree on April 21, 1986.

On April 23, 1986, counsel for the defendant filed a counterclaim seeking (1) a divorce on grounds of indignities and that the marriage was irretrievably broken, (2) property (which included a pension to be equitably distributed), (3) alimony, (4) counsel fees and (5) costs. Further, the defendant's counsel filed a petition to vacate the divorce decree asserting that (1) the complaint, relying on 23 P.S. § 201(a)(6) & (c) as the basis for the divorce, was never amended (by the mere submission of the § 201(d) affidavit) to allege other grounds, and (2) the plaintiff's ...


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