Person v. Person

Adams County Court of Common Pleas

Person v. Person

53 Pa. D. & C.2d 385, 1971 Pa. Dist. & Cnty. Dec. LEXIS 382

CourtPennsylvania Court of Common Pleas, Adams County

DecidedNovember 19, 1971

Docketno. 224

StatusPublished

This text of 53 Pa. D. & C.2d 385 (Person v. Person) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Adams County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Person v. Person, 53 Pa. D. & C.2d 385, 1971 Pa. Dist. & Cnty. Dec. LEXIS 382 (Pa. Super. Ct. 1971).

Pincite

Opinion

MacPHAIL, P.J.,

In this action in divorce, the master has recommended that a divorce be granted. We agree with the master as to the merits of the action. However, there is a problem which requires that the matter be remanded for further hearing.

The master’s report indicates that a notice of the master’s hearing was mailed by certified mail, return receipt requested, with instructions to deliver to addressee only, to defendant at the address set forth in the complaint and that the envelope containing the notice was returned to the master with a notation from the postal authorities stating that the addressee was “temporarily away on military training.” Subsequently, the master fixed a new date for hearing and mailed a new notice thereof to defendant with similar instructions to the postal authorities. This was apparently received and the postal receipt bearing defendant’s signature was verified by plaintiff.

However, there is nothing in the testimony of this case about defendant’s military status. Defendant did not appear personally in the action nor was he represented by counsel. Section 200 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, 50 App. USC §520 provides that no default judgment shall be entered unless plaintiff first files an affidavit that [387]*387defendant is not in military service. Any judgment taken or entered without the filing of such an affidavit or special order of court subjects that judgment to risk of attack by defendant if, in fact, he was in the military service when the judgment was entered.

In the present case, we do not know defendant’s military status. His wife said only that her husband’s “usual occupation” was a foreman at R. H. Sheppard. To prevent a miscarriage of justice against defendant and to protect plaintiff in the event a decree is entered, we believe the matter must be remanded for the filing of an appropriate affidavit and the taking of testimony to verify the facts upon which the affidavit is based: Wiltse v. Wiltse, 159 Pa. Superior Ct. 131 (1946).

ORDER OF COURT

And now, November 19, 1971, the within matter is referred back to the master for further proceedings consistent with the above opinion of court.

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MacPHAIL, P.J.,

In this action in divorce, the master has recommended that a divorce be granted. We agree with the master as to the merits of the action. However, there is a problem which requires that the matter be remanded for further hearing.

The master’s report indicates that a notice of the master’s hearing was mailed by certified mail, return receipt requested, with instructions to deliver to addressee only, to defendant at the address set forth in the complaint and that the envelope containing the notice was returned to the master with a notation from the postal authorities stating that the addressee was “temporarily away on military training.” Subsequently, the master fixed a new date for hearing and mailed a new notice thereof to defendant with similar instructions to the postal authorities. This was apparently received and the postal receipt bearing defendant’s signature was verified by plaintiff.

However, there is nothing in the testimony of this case about defendant’s military status. Defendant did not appear personally in the action nor was he represented by counsel. Section 200 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, 50 App. USC §520 provides that no default judgment shall be entered unless plaintiff first files an affidavit that [387]*387defendant is not in military service. Any judgment taken or entered without the filing of such an affidavit or special order of court subjects that judgment to risk of attack by defendant if, in fact, he was in the military service when the judgment was entered.

In the present case, we do not know defendant’s military status. His wife said only that her husband’s “usual occupation” was a foreman at R. H. Sheppard. To prevent a miscarriage of justice against defendant and to protect plaintiff in the event a decree is entered, we believe the matter must be remanded for the filing of an appropriate affidavit and the taking of testimony to verify the facts upon which the affidavit is based: Wiltse v. Wiltse, 159 Pa. Superior Ct. 131 (1946).

ORDER OF COURT

And now, November 19, 1971, the within matter is referred back to the master for further proceedings consistent with the above opinion of court.

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Bluebook (online)

53 Pa. D. & C.2d 385, 1971 Pa. Dist. & Cnty. Dec. LEXIS 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/person-v-person-pactcompladams-1971.

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