*1 into an directing sentence order to one payment who the victim the crime. Appellant has no standing question contractual subrogation rights govern disposition moneys via restitution to the victim. paid As of a Rose, sister state observed in v. State Or.App. (1980), P.2d owner of “[t]he the stolen vehicle is the ‘victim’ restitution will be paid him. the owner may contractually pass bound to to his payments insurer does not alter order; of the validity reparation statute is a ‘[t]he law; rehabilitative tool of criminal its applicability should not be affected happenstance of whether the owner carries insurance.’
The judgment of sentence is affirmed.
JOHNSON, J., concurs in the result.
444 A.2d F. Nicholas VALERIO Sylvia VALERIO, Appellant.
Superior Pennsylvania. Court of
Submitted Aug. 1981. Filed Feb. 1982. Reargument Denied 1982. *2 Reed, for Pittsburgh, appellant. W.
Douglas for Welsh, Pittsburgh, appellee. F. Richard WICKERSHAM, BECK, JJ. WIEAND and Before BECK, Judge: entered December from Decree appeal
This is an to the Master’s exceptions appellant-wife’s after hearing committed wilful and report, finding appellant-wife desertion, absent the habitation of malicious and was from cause, without reasonable injured and innocent spouse, space years.1 the term and of two during from the parties matrimony. decree divorced bonds that: appeal asserts on Appellant-wife from that he (1) precluded claiming residence since had sufficient cause to leave litigated this has and determined already against him; and
(2) The evidence is in- presented under sufficient the law establish either wilful and or that appellant-wife appellee-hus- malicious desertion by injured band is an innocent and We spouse. find that appellant-wife grounds. on both prevails *3 The in the instant action at complaint July No. filed herein recited that the by appellee-husband prior ac- tions in divorce filed were: by appellee-husband 3946, 1974,
“An filed at of in the July Court of Division, Common Pleas of Allegheny County, Family June Court 26, withdrawing 1974. Order of action in 1,1974, divorce December and an action filed at filed Term, the on October of wherein divorce the grounds of were denied.” indignities that fact, Term, In the record reveals No. October 1976 (hereinafter action) referred to as the 1976 asserted both and desertion as The indignities grounds. facts with to regard posture the the procedural grounds asserted were found in the 1976 action the honorable court en which exceptions banc heard to that Master’s report filed by herein:2 appellee-husband
“A bar was side conference held off the record after which the to amend complaint moved to plaintiff strike 2, 1929, brought P.L.1237, 1. was Act This action under 10(d) governed by interpreted P.S. and is that § act as the appellate courts of the Commonwealth. Judge Narick, Opinion by p. 2. March 3. on proceed indigni- to and elected of desertion
the grounds ties only.” that the then claimed
On exceptions, appellee-husband on either the proceed to elect to him required Master had or desertion. person to the grounds indignities record, but reviewed the the requirement found no such to grounds appellee- asserted due to both regard record with fact, not, in wish to abandon he did assertion that husband’s held: The court the of desertion. claim whole rec- review of the independent “After a careful had in ord, that, plaintiff if the court is convinced be harmless election, ruling such to an put error. the record the are therefore satisfied
“We in a course of conduct which indulged has not defendant grounds indignities a in divorce on warrants decree plaintiff the defendant desert the nor did person, granting entitled of a plaintiff thus matrimony.” from the bonds of divorce from appealed has not the order entered does claim error in that action, nor he any former asserts action related simply decree. He to the instant action. and is irrelevant indignities only action, adjudication We find that specifi- Judges Brosky March Narick entered had in a engaged course cally found *4 of have in justified appellant-wife conduct finding This was made after the marital abode. leaving assert claim of desertion in appellee-husband sought that after abandoned the claim before the having action if, procedural the confused of posture master. Even due to action, we do it the of desertion in not treat as a claim issue, final findings on the ultimate nonetheless the of ruling are unchallenged Those ignored. findings cannot appellee-husband. at case if this court looks the
However, in the instant even true, totally as what appel- testimony by has lee-husband testified to is his own of appel- desertion lant-wife.
While this court must full consideration to the give findings Master’s as to as well stated in specific credibility,3 Dukmen, Dukmen v. 420 A.2d Pa.Super. 670 (1980):
“In a divorce case it is the
of this
responsibility
make a
novo
de
evaluation of
record of the proceed-
ings and to decide
independently
the master and the
lower court whether a
cause of
in
legal
divorce
Steinke,
exists.
238 Pa.Super.
Steinke
“On Labor the defendant Day, [appellant-wife] had an to remove a operation brain tumor.”4 operation,
“After her testimony showed that the plain- tiff took [appellee-husband] no interest in his virtually wife’s Rather, mental physical well-being. he spent son, little time with his wife and eventually started to see woman, another left his finally eight wife months after brain tumor was removed.”5 her testified6 he and his wife and the argued, occurred: totally upon judge 3. This court is reliant lower court as to report report the content of the since Master’s the said is not included in the record to court and cannot be located after the Prothonotary efforts of the of this court. report report your 4. Master’s in 1976 action. That found that “it opinion testimony plaintiff Master’s was not credible while responsive that of the defendant was frank and for the most part. testimony Defendant’s was corroborated witnesses .... - report 5. Master’s in 1976 action. 6, 1979, 10-11, Hearing February
6. 13. *5 in the phone We had a the kitchen. I was in “I think she out. to bedroom and came went bedroom. She I ‘For said: you.’ wants to talk to She said: dad ‘My I T told him what happened.’ said: what reason.’ She ‘Well, said: he ‘Well,it of his business.’ is none She said: He to knock some sense going to talk is wants to you. ” your head.’ phone” he did “get testified that Appellee-husband has no idea whether her with father and appellant-wife’s to home because: father came I I left.” hung up, “[W]hen wife he did “visit” with his testified that abode, he that the reason
at had been their marital but what with was: did live her not return to back with “Well, get my first of all in to trying because of a any no that I would have kind wife, way there was know, to, life to make you try with her I would try unless her I to trying get her it for and was understand that was tried, keep together; just but time we every me; I I go with didn’t feel wanted to arguing just that at that time.” through Melli, in Melli v. 253 Pa.Su
As this court by stated Zorn, Zorn (1978),citing per. A.2d is made Pa. constructive desertion (1955) A.2d 907 out when: wilful-
“The that he or she was innocent spouse [shows] home force or out the common ly maliciously put . . . . bodily immediate harm justifiable fear of even described appellee-husband, While the conversation to if cause unjustified, might appellee-husband taken as simply hour while cooled tempers absent himself an or so an constituting it far from very avoid argument, Furthermore, the harm of kind. any immediate threat of found a fact Judges conduct as by appellee-husband in seek- clearly justify did appellant-wife Narick Brosky her ing asking family from her family comfort appellee-husband chang- intercede for her to talk into try ing It is clear that deserted his conduct. *6 further, and his own without
appellant-wife justification by admission, refused to back into the marital abode. In move this later at light, attempts reconciliation purported become if irrelevant. While they might, appellant-wife’s is rise to a testimony totally ignored, defense an divorce, the case not to us in appellant-wife does come this A posture. party required deserted is “not to seek a reconciliation.” 208 Yohey Yohey, Pa.Super. (1965) Chasman, A.2d and see Chasman v. (“Libellant (1947) Pa.Super. A.2d [deserted her party] had no to invite back or reconcili- duty attempt ation.”) record, review under our de novo of the
Finally, duty we note replete that is appellee-husband’s testimony with In inconsistencies and is credible its face. light this, and in based light prior findings upon witnesses, find independent we that the testi- testimony by did, does, and wish mony by appellant-wife resume life with if he appellee-husband will divest himself if of other women and he discontinue subjecting will with, her to conduct no need be spouse put up given should full credit.
In case, has failed to show that he was wilfully maliciously and deserted without reasonable cause. reversed,
The decree lower court is therefore appel- request lee-husband’s for divorce from the matri- bonds of is mony denied, and a decree is entered for appellant-wife in this action.
WIEAND, J., dissenting files a opinion. WIEAND, Judge, dissenting: I dissent. review of the My record discloses respectfully appellee did establish evidence competent appel- desertion; therefore, lant was I would affirm guilty the decree of divorce entered trial court. conflicting. par- in the instant case The evidence lived until together May ties were married on Master, before the hearing At time of 27,1964. for more than apart separate had been they living anby argu- separation precipitated Their years. fifteen father appellant-wife’s of which ment, at the conclusion and “knock some to come over threatened by telephone thereaft- head. Immediately into appellee-husband’s sense” follow- er, home. He testified that left the marital appellee reconcile, attempts to ing repeated he made departure to lease arrangements had made and on at least one occasion him and they wife could rejoin an so that his apartment wife. He testified to cohabit as husband and able *7 his were rejected by of for reconciliation requests that all by appel- was contradicted testimony wife. Although more credible. lant, testimony the Master found appellee’s found, recommended, the court therefore, and Master, of a on the grounds entitled to divorce appellee desertion. an court “to make
On of an duty appellate it is the appeal, a whether the record and determine study of independent Schrock, v. cause for divorce exists.” Schrock legal of action Al 53, 435, (1976). 437 57, 241 359 A.2d Ct. Pa.Superior is bound the Master’s by an court not though appellate Master’s credibility is one of the where the issue findings, consideration, as he or fullest given should be the findings the witnesses. to hear and observe had the opportunity testimony, rests on disputed Where the ultimate decision v. Gehris persuasive. is particularly Master’s determination 753, (1975). 144, 148,334 A.2d 755 233 Ct. Gehris, Pa.Superior the “willful and as statutorily defined Desertion has been habitation of from the desertion, and absence malicious cause, for without a reasonable injured spouse, and innocent . Act of two . . . years and during space the term Where one 10, 10(d).1 23 1929, P.L.1237, P.S. 2, § § proceed new application to under the parties 1. The did not make 1980, provisions law were Divorce Code of by the below. considered 270 force or leave marital
spouse
ejected by
compelled
home because of a threat of
a
appre
force and
reasonable
hension that
force
be
deser
such
will
constructive
employed,
tion has been established. The force
threat
may
or
thereof
be
a relative of the
imposed by
spouse
See
spouse.
Freedman,
Marriage
Law of
Divorce
Pennsylvania,
(2d
1957).
ed.
long
Constructive desertion has
§
a
recognized as
form of desertion and thus
grounds
Melli,
divorce in
Melli
Pennsylvania. See:
253 Pa.Superi
or Ct.
384 A.2d
(1978);
Heimovitz,
Heimovitz v.
161 Pa.Superior
(1947);
Reiter,
Ct.
I find it
to decide whether
unnecessary
appellant-wife was
guilty
by compelling
constructive desertion
appellee
leave the
home May
a
quarrel
and the
threat
father
to knock some sense
appellant’s
into
head.
It
well
appellee’s
may
this did not
constitute
force or the threat of
suffi-
ejectment by
force
*8
cient
to
to abandon the
require appellee
common home.
133,
Ct.
Scanga
Scanga,
Pa.Superior
See:
v.
167
271
I am unable
relationship
appellant.
with
resume the
that those
to reconcile
attempts
with the
agree
majority
refused to
appellant
when
contrary,
irrelevant. On the
are
to his
response
good
husband in
return
live with her
the deserter.
reconcile,
became
appellant
faith offers
293,
v.
Whelan,
(1897);
Pa.
The majority in was denied a appellee prior barred aby However, exami- indignities. my divorce on the grounds case record the instant discloses nation of the was and/or collateral not judicata estoppel defense of res not Master, before the was raised in the proceedings to the Master’s exceptions report, subject appellant’s below, not not in the the court has opinion considered involved” in the instant been as a preserved “question defenses, therefore, have been potential These appeal. which have been complex waived. raise issues They it I find unnecessary and which argued parties decide. years. for more than 17 separated have parties I broken. irretrievably
Their has been marriage have parties achieved what acknowledge legally *9 of divorce. and affirm the decree