Sprague v. Sprague
Decision Date | 16 November 1972 |
Citation | 223 Pa.Super. 44,297 A.2d 133 |
Parties | Richard A. SPRAGUE v. Jacqueline E. SPRAGUE, Appellant. |
Court | Pennsylvania Superior Court |
Edwin P. Rome, Philadelphia, for appellee.
Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.
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.
'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:
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