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GREER v. GREER (07/21/55)

July 21, 1955

GREER
v.
GREER, APPELLANT.



Appeal, No. 32, April T., 1955, from decree of Court of Common Pleas of Allegheny County, April T., 1953, No. 2298, in case of Melvin L. Greer v. Gertrude O. Greer. Decree affirmed.

COUNSEL

Kenneth W. Behrend, for appellant.

Joseph P. Passafiume, for appellee.

Before Hirt, Ross, Wright, Woodside, and Ervin, JJ. (rhodes, P.j., and Gunther, J., absent).

Author: Ervin

[ 178 Pa. Super. Page 644]

OPINION BY ERVIN, J.

The husband brought an action in divorce against his wife alleging (1) indignities to the person and (2) desertion. The master recommended a decree of divorce on the desertion charge. The lower court dismissed exceptions and entered a decree of divorce a.v.m. The wife has appealed to this Court.

The parties were married February 14, 1942. Ten months later the plaintiff entered the Navy and was discharged therefrom in 1946. While in the Navy he made an allotment for his wife and sent her additional sums of money over and above the allotment. After discharge from the service the parties lived together in Mahoneytown, Pennsylvania, for approximately one month and then moved to New Castle, Pennsylvania, where they lived for several months and in May 1946 they purchased a home in Ellwood City, Pennsylvania, where they lived together until sometime in June of 1949. Plaintiff, after work on a Friday afternoon, left for a week-end visit at his mother's home in West Virginia. He had visited her frequently before and on this occasion the wife knew where he was going. The next day she caused a warrant to be issued

[ 178 Pa. Super. Page 645]

    for his arrest for desertion and nonsupport. The husband returned to work on Monday and was arrested while at work.

For approximately four months thereafter the parties did not live together. At first the husband moved to his brother's home in Ellwood City. Shortly thereafter, the plaintiff was furloughed, due to a lack of seniority, from his job at Union Drawn Steel Company in Beaver Falls, Pennsylvania. He was without funds and he went to his mother's home in West Virginia. In October, 1949, he was arrested for failure to pay the support order. While in jail he and his wife became reconciled and each agreed to "straighten out" and in October, 1949 the parties returned to their home in Ellwood City. They lived together until February 8, 1950. Plaintiff was unable to find regular employment in Ellwood City or vicinity and on December 16, 1949 found employment at the Monongahela Connecting Railroad in Pittsburgh, Pennsylvania. The plaintiff stayed with his sister, Mrs. Caskey, in Pittsburgh, going home to Ellwood City on the days that he was not working. Between December, 1949 and February 3, 1950 plaintiff tried to find housing in Pittsburgh for his family. Meanwhile, the home in Ellwood City had been sold and the purchasers moved in, causing a difficult situation for the defendant and her two children. Plaintiff found an apartment at 96 Dawn Avenue, Pittsburgh, Pennsylvania, and on or about February 6, 1950 requested the defendant to come and look at it. She refused to do so and told him to go ahead and rent it and that she would move to Pittsburgh. On February 8, 1950 the defendant moved her household furnishings to the Dawn Avenue apartment. The plaintiff arrived home from work on that date and found his household furnishings in the apartment. Shortly thereafter the defendant arrived and told the

[ 178 Pa. Super. Page 646]

    plaintiff that the apartment was not suitable. According to Mrs. Fabus, the owner of the property, and plaintiff's sister, Mrs. Caskey, the defendant said she would not live with the plaintiff at Dawn Avenue or any place else. Thereafter the defendant lived with her two children at her mother's residence at 1109 Wingate Street, Pittsburgh. The defendant, her mother and her sister testified as to the unfitness of the apartment. The plaintiff, Mrs. Fabus, the owner, Mrs. Angelina Batalo, who had been the tenant of the apartment for two years prior, and plaintiff's sister, Mrs. Caskey, all testified as to the fitness of the apartment. The plaintiff and his sister and her husband had painted the kitchen and were endeavoring to ...


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