—The issue or issues raised come before this court on the following set of facts: plaintiff filed a complaint in divorce against defendant in August of 1980. The grounds on which plaintiff relied for a divorce as pled were that the marriage between the parties has been and is irretrievably broken. Defendant filed a petition “Raising Additional Claims Provided for Under the Divorce Code.” The form of the petition may take on some importance and, therefore, the following observations are made as to said petition: in paragraph 2 of said petition, it is set forth, “That the Petitioner respectfully requests that the following matters be added to said Complaint:”
B. Division of property rights between the parties “including marital property”;
C. Request for alimony pendente lite and counsel fees and expenses;
D. Permanent alimony;
E. Custody of the two children bom to the marriage;
F. A claim for child support;
G. A request under section 202(b) for a maximum of three counseling sessions “prior to the expiration of the ninety (90) days following the filing of the Complaint.”
The prayer for relief in the petition asks that the matters set forth in paragraph 2 “be made a part of the above captioned matter” and, further, that a rule be granted on plaintiff to show cause why an order should not be made to pay alimony pendente lite and reasonable counsel fees.
By order of court dated February 23, 1981, pursuant, to hearing, the court made an “interim order” directing defendant to pay $50 per week for the support of the two children born to the marriage and another $50 per week for the support of his wife on condition that defendant receive an additional $125 per month from trailer rental and, further, that plaintiff pay $250 to apply to defendant’s counsel fees. On March 3, 1981, this court filed an amended order directing that defendant shall pay $50 per week for each of the two children born to the marriage to commence on the same date as set forth in the initial order. The amended order was in all other respects the same as the original order.
By a document entitled “Praecipe to Discontinue” which was directed to the prothonotary and signed by John B. Leete, attorney for plaintiff, the prothonotary was directed to “Kindly discontinue
On May 26 and 28, 1981, respectively, cross petitions were presented to the court resulting in the court’s signing orders setting hearings thereon the same day and subject to certain continuances, the cross hearings were scheduled and held on June 23, 1981. Plaintiff had filed a petition for clarification of order and defendant filed a petition alleging that no payments had been made under the amended court order as above described since May 4, 1981, and requesting the court order payment of the arrearages accumulated since May 4 to date and, further, reaffirm the support payment should continue, that counsel fees should be paid, and any further relief necessary.
A singular hearing was held on the cross petitions which raised the following issues:
(1) By virtue of the praecipe filed by plaintiff as of April 24, 1981, was the divorce action discontinued?
(2) If plaintiff’s divorce action was, indeed, discontinued by the praecipe above mentioned, would defendant’s causes of action as set forth in her petition of August 28, 1980, raising additional claims nonetheless serve as separate and distinct causes?
(3) Even if the first two issues are resolved in favor of plaintiff, does this mean that the amended court order of March 3, 1981, directing payment of support for children, alimony pendente lite, and
To answer the first issue raised, one would think all that need be done would be to refer to the Pennsylvania Rule of Civil Procedure covering a discontinuance. We, therefore, go to Rule 229. We note that section (a) says that discontinuances shall be the exclusive method of terminating a civil action by plaintiff before commencement of trial. Section (b) states a discontinuance may not be entered as to less than all defendants without leave of court, and section (c), the court may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harrassment, expense, or prejudice. Although this court has for years observed the age-old and accepted method of discontinuing actions by praecipe to the prothonotary, we are rather surprised to learn that no method or procedure is set forth in the Pennsylvania Rules of Civil Procedure, or anywhere else to the knowledge of this court, in order to effectuate such a discontinuance. Nonetheless, this court is going to adopt the proposition that plaintiff is in control of his own action and, therefore, may unilaterally discontinue same at any time by the method he actually employed, viz., filing a praecipe with the prothonotary. It is noted that any party who may be aggrieved by such a discontinuance may file a petition with the court under Rule 229(c) to allege prejudice and, therefore, seek an order striking the discontinuance. It is noted that defendant failed to file such a motion. We, therefore, conclude that the method of discontinuance is proper and that plaintiff’s complaint in divorce is thereby discontinued as of the date the praecipe was filed with the prothonotary.
The next issue is then whether or not the causes
Plaintiff argues with great merit that if the initial complaint is discontinued, a mere petition must also fall. Although many times injustice is perpetrated by being hyper-technical as to procedure in equally as many cases, if not more, an injustice will be done if technicalities for procedure are not followed. We, therefore, hold that Rule 1920.15 necessarily mandates that a defendant who wishes to raise collateral divorce matters in the first instance must do so under the heading of a counterclaim and then thereafter as desired may supplement any additional collateral matters as under section (b).
To address now the third issue, this court is of the opinion that any court order which directs the performance of on-going acts by any litigant which is not only consistent with but mandated by public policy shall not be frustrated by pulling out the legal support from under such order. This court will not allow the court order to automatically fall as to the collateral issues which could be self-serving if they were properly presented. This court will not allow children and contesting spouses in divorce actions to starve and go without support because of a legal technicality. It is clear that the collateral issue of division of marital property must necessarily fall with the withdrawal of the divorce complaint as would also any future claim for counsel fees beyond this date. It is likewise clear that a claim for support of children would be self-sustaining though in another form as well as alimony pendente lite and counsel fees to this date. Furthermore, it should be made clear, however, that the court order of March 3, 1981, shall not be prospective or ongoing but shall terminate as to any future duty forthwith for
Thus, the following
ORDER
And now, July 23, 1981, plaintiff is directed to pay the arrearages calculated under the order of this court dated March 3, 1981, to the date hereof together with total counsel fees of $250.
