Weaver v. Weaver

58 Pa. D. & C.2d 797, 1972 Pa. Dist. & Cnty. Dec. LEXIS 237

• Court: Pennsylvania Court of Common Pleas, Adams County
• Decided: March 6, 1972
• Docket: no. 108
• Status: Published

Opinion

MacPHAIL, P. J.,

In this action of divorce, the master has recommended that a divorce be granted and the evidence supports the recommendation.

At the hearing, defendant was represented by counsel but did not appear personally. The master’s report indicates that notice of the hearing was given to the attorney for plaintiff and the attorney for defendant. In addition, a copy of the notice of hearing was posted in the prothonotary’s office. It does not appear from the record that a copy of the notice was sent to defendant as required by Local Rule of Court 128.

In Strausbaugh v. Strausbaugh, 2 Adams Leg. J. 168 (1961), the late Judge Sheely, in an opinion concerning an analogous, but not identical, situation, said, at page 169:

“Adams County Rule of Court No. 128 requires that the Master shall give at least ten days’ written notice of the time and place of taking testimony to the counsel for the plaintiff ‘and to the defendant and his counsel, if any.’ This notice is essential so that the defendant may have an opportunity to cross-examine plaintiff’s witnesses and to present her own defense. See: Goodrich-Amran, 1133(a) 14; Hawn v. Hawn, Common Pleas Adams County, 75 August Term, 1957. Failure to give proper notice of the hearing precludes the entry of a decree: Wiltse vs. Wiltse, 159 Superior Ct. 131, 133 (1946).”

It is true that the Pennsylvania Rules of Civil Procedure, Rules 233 and 1027, would seem to be satisfied without notice to defendant, but we are of the opinion that the precedent in our jurisdiction is a wise one and should be followed, and that the reason for the rule of court is also wise and should be followed.

ORDER OF COURT

And now, March 6, 1972, the within matter is referred back to the master for a further hearing after proper notice to the parties as required by Local Rule of Court 128. If defendant does not appear, the testimony given at the hearing on Friday, January 21, 1972, may be incorporated by reference in the master’s supplemental report, whereupon an appropriate decree will be entered.