Appeal from the Order entered July 15, 1987 in the Court of Common Pleas of Montgomery County, Civil, No. 87-08840
Lynn Z. Gold-Bikin, Norristown, for appellant.
Neil Kitrosser, Philadelphia, for appellees.
Cirillo, President Judge, and McEwen and Montemuro, JJ.
[ 375 Pa. Super. Page 342]
This appeal has been taken from an order, entered by the distinguished Judge Marjorie C. Lawrence, which rescinded and revoked a divorce decree which had previously been entered upon appellant's complaint pursuant to 23 P.S. § 201(d)(1)(i).*fn1 Appellant claims that the hearing court
[ 375 Pa. Super. Page 343]
lacked the authority to rescind the decree. We disagree and affirm the order of the hearing court.
Appellant initiated this action by the filing of a complaint in divorce on June 18, 1987. The complaint, seeking dissolution of the parties' marriage, and the affidavit executed by appellant in accordance with Section 201(d) of the Divorce Code and Pa.R.C.P. 1920.42(a)(2), were personally served upon appellee Sharlot Lonon Anderson that same day. The complaint was endorsed with a notice to defend and claim rights in accordance with Pa.R.C.P. 1920.71, and the affidavit was prefaced with the notice required by Pa.R.C.P. 1920.72(c). Eleven days later, on June 29, 1987, no answer or counteraffidavit having been filed by appellee, appellant served upon appellee, by certified mail, notice in accordance with Montgomery County local rule 1920.42(c),*fn2 of his intent to file a Praecipe to Transmit the Record pursuant to Pa.R.C.P. 1920.42 and 1920.73. The praecipe was filed on July 9, 1987, and, on that same date, pursuant to an ex parte request by appellant's counsel, a decree divorcing the parties was entered by the hearing court.
Six days later, on July 15, 1987, counsel for appellee entered his appearance and apprised the hearing court that he was representing appellee on a voluntary basis as part of the Philadelphia Volunteers for the Indigent Program. Counsel also filed a motion to open or vacate the July 9
[ 375 Pa. Super. Page 344]
divorce decree, citing 23 P.S. § 602,*fn3 and alleging that, due to appellee's indigent status and the recent appointment of volunteer counsel, appellee had not had sufficient time to respond to the divorce proceedings or to raise economic claims. On that same date, the hearing court entered the following order:
AND NOW, this 15th day of July, 1987, upon motion and representation of defense counsel that outstanding economic issues exist and that [appellee], an indigent, had insufficient time to respond and to retain counsel between the filing of the Complaint in Divorce and the entry of the Divorce Decree, and pursuant to 42 Pa.C.S. § 5505, IT IS ORDERED and DECREED that the ...