*1 the intruder were If not found on the defendant. he disposed of be them, question might asked why also conceal did not the leather he wore jacket rather than it on a in his chair place conspicuously home. it of the record of the court
Although part it is disclosed below, briefs defendant to a sodium subjected pentothal (lie-detector) test, techni- the results of ivhich were negative. Although no considera- should this Court’s cally play part as I tion do about this case, nevertheless, feeling compelled I feel make in justice mention matter, it, to the defendant. Appellant.
Decker v. Decker,
235' *2 Argued March 1960. Before P. 22, J., Gun- Rhodes, and Mont- ther, Woodside, Wright, Ervin, Watkins, JJ. gomery,
Michael E. him with Rainone, Libeiti, P. for Alfeo wife, appellant.
Edmund P. with him Hannum, Thomas Hynd- M. man, appellee. husband,
Opinion by April J., 1960: 13, Ervin, On August Antoinette 29, Decker a com- filed plaint in Common Pleas Court No. 7, Philadelphia, a divorce seeking a.m.e.t. from her Ralph husband, Decker. On October 1952 Ralph A. P. filed Decker complaint Common Pleas Court No. Philadel- Antoinette Ms wife, a.v.m. from a divorce seeking
phia, Common transferred latter case was Decker. The together. were heard 7 and the two cases Pleas No. fol- A. Gleeson, Judge heard by Gerald having 7 of Pleas No. a custom in Common lowing It case. divorce master in a contested sit as a judge hear time of the judge’s about one week consumed critical be While do not like to we waste terrible seem to us to be a this does practice, one calendars and court of time in this crowded day master of a could have been avoided use en- opinion an from the bar. Gleeson filed Judge Exceptions complaints. an order both tered dismissing each plaintiff filed case. Joseph Sloane, of President consisting banc, *3 X. Mc- and Gerald A. Gleeson and Francis Judges in exceptions the unanimously dismissed Clanaghan, Ralph a.m.e.t. the the action, finding husband, not commit cruel indignities person, did to the Decker, of and barbarous treatment or abandonment malicious Antoinette Decker. In action Presi- the a.v.m. wife, McClanaghan found and dent Judge Sloane Judge the husband had been driven from marital the home the and her mother and on 1946 May 15, the exclusion was without the hus- consent of the and was willful and malicious band within the mean- the Act of Divorce him a a.v.m. ing granted divorce dissented. appealed Antoinette Decker Judge Gleeson cases. both We have 711 read the carefully type-written pages of agree Avith the ma- testimony of the findings the of court below. jority
Much of the appellant’s is argument addressed fact that question de- should be credibility as it Avas decided cided by Judge judge Gleeson, yrho heard the
23?
repeat
said
We
what
so well
has been
Superior
Boyer Boyer,
260,
Ct.
Pa.
v.
183
Woodside
upon
us
incumbent
“The master’s only, tois given regards the fullest be consideration as credi bility of witnesses whom he has seen *4 and heard, respect report lightly in this his should not be disre garded. Superior Brown v. 163 Pa. Brown, 490, Ct. (1949) Megoulas ; A. 2d 130 Megoulas, 63 v. 166 493, Superior (1950) Pa. 72 Ct. A. 2d 510, 512, 598 Smith ; Superior Pa. Smith, 157 v. Ct. 43 A. 371 582, 2d 583, Superior (1945) v. Green 182 Pa. ; Green, Ct. 126 287, (1956).” Foley Foley, 477 See also A. 2d v. 188 Pa. Su perior 146 A. Ct. 2d 328. 292, 294,
238 charges
Little
in
need be said about
the wife’s
dignities
person,
to the
treatment
cruel and barbarous
judges
or
malicious abandonment because the three
agreed
they
our
below
did not exist and
review
entire
accord.
con
record is in
We are
by the
vinced,
the husband was
however,
record,
by
driven
force and violence
matrimonial
from the
pre
abode
the wife and her mother. He was also
returning
from
vented
to
course
that abode and this
persisted
period exceeding
of conduct was
in for a
two
years.
repeat
In this connection we
what
Wat
Foley
pages
Foley, supra,
so well said
v.
kins
only
and 297: “Desertion not
consists
a ‘willful
malicious abandonment of the
Deser
common home.
tion results also where one is
home
excluded from the
justifica
spouse, willfully
the other
and without
Superior
tion.’ Heimovitz v.
161 Pa.
Ct.
Heimovitz,
.
(1947)
A. 2d
522, 55
Reiter
;
v.
159 Pa. Su
Reiter,
perior
(1946).
spouse
Ct.
lived at the home of the mother until wife’s May According parties 1946. to the husband the got along very well until the last six months. junk his brother had a oc- business. On keep his work casion would him late for dinner and complained to him about this. On one or more get she refused to occasions dinner for him because his lateness. *5 at
On the occurred night quarrel May 15, the dinner hus- table in which the attacked the wife band with knife and in her the disarming was cut. He left the his wife house under the attack of neyer and her mother and Permission has returned. to return permission was refused he was and denied return his toor have his do so. relatives clothing Permission was to have a given officer enter police house and evicted secure After clothing. being from the house the husband met De- Officer Raymond who testified he Mr. Decker he was Haven, saw as from the Mr. coming away common abode and that Decker “had a cloth wrapped around his and it hand, all was This officer bloody.” also testified that on next he went down to day the common abode with the brother of Mr. Harry, Decker, and that not let would in the Harry house to get Mr. Decker’s I clothes “so went and up asked her for the clothes, I and carried them a number of suits over- out, coats topcoats and shoes and shirts.” He took clothes to brother William’s where Decker Mr. home, was then staying. Anna mother, testified that bit Carman, she
Mr. Decker on the wrist in order to from free herself hold. his She also testified that “He did run out of had a house, sure, hole in his hand I done to do me, free from myself From a grasp.” reading there can be little doubt an quite encounter occurred dinner on the table night May 15, 1946. Undoubted- the wife and her mother ly, attacked physically must have him gotten husband. They the better of he ran out because house. There no wit- to this encounter except nesses daughter mother, All parties her husband. agree that he was wound- that he was cut He says ed. when he attempted to take cutting a knife denies from Ms wife. The wife away *6 wrist. him in the but the mother admits that she bit him rea- All It is parties premises. that he left the agree getting sonable to conclude that the women were two prem- the better of him or not have left the he would Mr. The fact that police ises. officer confirms the shortly when he him Decker’s hand was saw bleeding they that premises. parties after left The agree his or him of the members permit would any to return for his clothing. family nu- also clear that Mr. Decker on The is testimony recon- a merous occasions after this occurrence sought Blooms- ciliation with his wife. He even took her to home 12 from to look at a nice Berwick, miles burg, wife would he offered to for the if the parties buy which this, to him. The wife refused to do come live with made No to her own is charge according fide. We of reconciliation not bona that the offers sis- sent that were. The husband even believe they recon- endeavor to accomplish ter to see the wife in an responsible mother ciliation. The wife’s was probably parties of the reconcile. She inability oc- prevent made her mind to this from evidently up curring. from the constructive desertion be taken
Whether months or date within a of six period any May the reconciliation was attempted, when thereafter, pe for a apart have remained from each other parties numerous After on of nearly years. seeking riod about a to bring reconciliation, occasions part that hope. We are accord with up gave finally Avhere the court below opinion majority of the “It that appears undisputed said: following in they reconciliation. would not consider separation, this her is to 365). Indeed, 408-416, (N.T. 103-112). This eAÚdenceis T. relevant (N. effect. imme- of and the time show the state mind at wife’s it, From departure. her husband’s diately following separation there implication comes the plain wanted, intended and the wife was what parties wilful was legal sequence follows, consent lack of element of part. malicious on her recon- of the husband toward shown the efforts ciliation. the evidence refusal of reconciliation,
“But on al- supports an established, the trial judge agreed disposes ternative of decision likewise ground 1946. of what regardless case occurred May 15, wife’s refusal of her husband’s earnest efforts *7 her constituted reconciliation in desertion on itself, and Divorce Penn- in part. Freedman, Marriage See 240. The offer of hus- sec. the sylvania (2nd ed.), unequivocal. bona and On this band was distinct fide, the was entitled husband to a divorce.” basis, also, the There was considerable testimony concerning the at the in mother- reception conduct of home and store after the on April in-law’s marriage that the husband became angry 1944. The wife testified left went reception upstairs at her and and wedding for and remained there several the guests hours, leaving fare themselves. The husband denied com- this sister, her produced The wife mother and pletely. her to corroborate her wife Virginia Vetrulli, story. the husband beat her tore dress testified and her occasion. produced the bathroom this She also old 69-year to corroborate Angelina Colone, woman, witness admitted that this she did Mr. her and not see upstairs. She also Penn- produced Decker Matilda go woman, to old her corroborate but ies, 75-year her accept could not as the story truth Glbeson counsel for “I said: think Rainone, Mr. wife, your On the right.” other Mr. hand, Honor Decker pro- Hagenbuch, relation who no Catherine was duced picture wed- gave entirely who an different his, ding ceremony. nothing of order She saw out reception wife and testified that both the husband present during John all there. the time she was Morrison, Decker, also to Mr. B. who related reception until testified that he remained at the wrong. groom nothing left that he bride and saw pres- He also that Mr. Decker stated and his wife were testimony ent. In addition disinter- of those produced Mr. brothers, Decker ested witnesses, Harry who corroborated his William, nothing reception. unusual occurred at We preponderance that the believe well as evidence, picture as the disinterested favor the witnesses, reception painted wedding as the husband. produced Harry Scally, also a Dr. wife P. who July 1944, at first testified that he saw January May 1945 and 1946. The ex direct doctor, multiple testified Mrs. Decker con had amination, body tusions of the and around the arms shoulders and and back and she also had a nervous condition. On cross-examination, admitted however, that he no records the visits and he mem admitted that his ory helped by had been Mrs. Decker and that no he had independent recollection as to these matters. also He *8 previously that he admitted written a letter that he showed could have treated her in unworthy or 1946. This Avitness’ is of belief. clearly We believe that evidence in this case upon out a ease makes of constructive desertion based (1) put he facts: that was out two abode common justifiable by fear (2) of immediate harm, against out locked his will. period
Since the desertion has continued for a years, than two more decree in the a.v.m. action in is the action the order affirmed; dismissing a.m.e.t. case is also affirmed.
Dissenting
Opinion
J.:
Wright,
I
in divorce
complaint
would dismiss the liusband’s
A.
a.v.m.
of Honorable
Gerald
upon
opinion
pro
heard the
who
As a matter
Gleeson,
de
I find no
for the reversal of the
cedure,
authority
On
cision of
en banc.
judge
hearing
as
Gleeson has
demon
merits,
convincingly
the husband
failed to
the deser
prove
strated,
entirely
tion
It
complaint.
that a wife
alleged
view
my
re
is not
of desertion when
whose
guilty
husband,
him
is to
provide
absents
sponsibility
habitation,
self therefrom and the wife remains therein.
See
dissent
v.
Superior
Pa.
Dukenfield,
Dukenfield
Ct.
Rhodes, Steinberg, Appellant. Rabben v.