Sprague v. Sprague

Decision Date16 November 1972
Citation223 Pa.Super. 44,297 A.2d 133
PartiesRichard A. SPRAGUE v. Jacqueline E. SPRAGUE, Appellant.
CourtPennsylvania Superior Court

Edwin P. Rome, Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.

PER CURIAM.

The disposition of divorce proceedings, referred to masters is at all times within the control of the courts of common pleas, which by proper order or rule should provide for a more expeditious determination than was made of the present case.

The procedural question was very ably covered by the opinion of the court below wherein its sets forth the following:

I.

THE PROCEDURAL QUESTION

'Unusual difficulties were encountered by the Master in scheduling hearings in the case. On a number of occasions, hearings which had been fixed had to be cancelled because of the busy schedule of counsel for the defendant. In any event, the litigation was protracted far beyond the normal period required for the disposition of contested divorce cases. It reached a point where we determined that we had a duty to exercise our power of supervision and to intervene in order to bring the litigation to a close. Geyer v. Geyer, 124 Pa.Super. 313 (, 188 A. 402). We were of the opinion that decisive action was required. Accordingly we forwarded the letter dated December 15, 1971 to the Master and to counsel for the parties.

'Counsel for the defendant contends that the letter by the Master, dated December 21st, fixing a hearing for December 28th, was in violation of the Philadelphia local rule requiring ten (10) days' notice of the scheduling of a Master's meeting. This rule applied only to the first meeting to be held by the Master in order to give the parties ample notice that hearings in the nature of a trial are to commence. It is not intended to apply to subsequent hearings because the rules contemplate an expeditious conclusion of the hearings once they commence, on a day-to-day basis, if possible. The Master, upon receipt of our letter, called the offices of both attorneys. He was advised by the office of the defendant's attorney that December 28th would be an acceptable date and notices were mailed.

'Counsel for defendant, exhibiting the remarkable indifference to both the Master and the Court which he exhibited during this entire phase of the proceedings, made arrangements to go out of the city without notifying the Master.

'At the request of defendant's counsel, we arranged a conference in chambers, which was held on January 4, 1972, attended by counsel for both sides, for the purpose of hearing an explanation by counsel for the defendant and also to fix hard and fast rules in the event that further hearings were to be ordered. To that end, we requested counsel for the defendant to state an offer of proof and the names of the witnesses whom he intended to call. Counsel for the defendant flarly refused to accede to either request, contending that the Court had no authority to request him to do so.

'After leaving the conference, counsel for defendant prepared an answer to the amended complaint and, on the same day, served a copy of this answer upon the Court. The amended complaint was filed on July 28, 1970 and, more than seventeen months later, the defendant filed the answer to the amended complaint, which contained new matter. Obviously, if a reply to the new matter was required, the already unconscionable delay would have been further protracted.

'On January 5, 1972 we issued an Order with a prefatory explanatory statement and directed the Master to close the hearings and to file a Report. At this point, the defendant had completed her testimony in her own defense and counsel for the plaintiff waived the right of further cross-examination, which had begun but which had not been completed.

'The defendant had admitted in her testimony that she had committed adultery with John Swartz on a number of occasions. The defense which she wishes to offer was the defense of recrimination. This is an affirmative defense and the defendant has the burden of proof. Rech v. Rech, 176 Pa.Super. 401, (107 A.2d 601); Isaacs v. Isaacs, 149 Pa.Super. 508 (, 27 A.2d 531). Modern discovery procedures, particularly when invoked by the Court, require the disclosure of names of witnesses and certainly it was within the power of this Court to request an offer of proof, so that proper instructions could be issued to the Master to assure expeditious termination of the litigation.

'Neverthe less, we gave counsel for the defendant another opportunity. On January 19, 1972, we allowed a rule to show cause on a petition presented by counsel for the defendant requesting that we vacate our Order closing the hearings, and requesting that we refer the case back to the Master. At argument on this rule, the attorney who appeared for counsel for the defendant was asked if an offer of proof and the names of witnesses would be submitted, and again this request by the Court was refused.

'During the course of the hearings and thereafter, there has been a consistent pattern of delay on the part of defendant's counsel. As stated by the Master in his Report: 'In light of the fact that this matter has been pending for approximately two years, the Master having been appointed April 23, 1970, the closing of the record after the non-appearance of Defendant or her Counsel at the hearing scheduled December 28, 1971 was fully justified. The repeated unavailability of Defendant and her Counsel for hearings scheduled by the Master is tantamount to a wilful attempt to delay the resolution of this matter indefinitely.'

'After the entry of our Order of February 1, 1972, discharging ...

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