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COMMONWEALTH EX REL. RANJO v. RANJO (03/24/55)

March 24, 1955

COMMONWEALTH EX REL. RANJO
v.
RANJO, APPELLANT.



Appeals, Nos. 228 and 227, Oct. T., 1954, from orders of Municipal Court of Philadelphia County, June T., 1953, No. 2311, in case of Commonwealth of Pennsylvania ex rel. Catherine Ranjo v. Leo J. Ranjo. Orders affirmed.

COUNSEL

Edwin Fischer, for appellant.

Victor H. Wright, Assistant District Attorney, with him Samuel Dash, Armand Della Porta, Assistant District Attorneys, Michael von Moschzisker, First Assistant District Attorney, and Richardson Dilworth, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Woodside

[ 178 Pa. Super. Page 7]

OPINION BY WOODSIDE, J.

There are two appeals involved in this case. One from the refusal of the Municipal Court of Philadelphia to revoke a support order which had been entered in favor of the wife and against the husband and the other an appeal from the order of the same court made against the appellant for the support of a child.

It is the contention of the defendant that the child is not his, and therefore his wife committed adultery and that he should thus be relieved of supporting his wife and the child.

It appears from the evidence produced by the husband that he last had sexual relations with his wife on October 28, 1952. The following day she disappeared from their home in Philadelphia, leaving a note saying she was leaving. November 7, and again November 29, she wrote to him from St. Louis. She returned to Pennsylvania and a child was born to her in Philadelphia on August 30, 1953, which according to her husband's testimony was 306 days after the last sexual intercourse with him.

There was evidence of conduct on the part of the wife, such as giving a fictitious name at the hospital

[ 178 Pa. Super. Page 8]

    where her child was born and misrepresenting the date of birth to her husband when he first learned about the child, which might lead to the inference that the child did not belong to her husband. However, the basis of the defendant's contention is non-access to his wife. In this case there is no evidence upon which non-access could be established except the testimony of the husband.

It is well settled that both the wife and husband are incompetent to testify as to non-access. Com. v. DiMatteo, 124 Pa. Superior Ct. 277, 188 A. 425 (1936); Com. v. Atherton, 129 Pa. Superior Ct. 64, 194 A. 779 (1937); Com. v. Barone, 164 Pa. Superior Ct. 73, 63 A.2d 132 (1949); Cairgle v. American ...


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