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RANKIN v. RANKIN (07/17/56)

July 17, 1956

RANKIN
v.
RANKIN, APPELLANT.



Appeal, No. 43, April T., 1956, from decree of Court of Common Pleas of Indiana County, March T., 1953, No. 385, in case of Michael J. Rankin v. Edith L. Rankin. Decree reversed.

COUNSEL

Wray G. Zelt, Jr., with him George I. Bloom, Milton D. Rosenberg, and Bloom, Bloom & Yard, for appellant.

J. Lee Miller, with him Harvey A. Miller, James L. Jack, Jr., Miller & Miller, and Tomb & Tomb, for appellee.

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

Author: Wright

[ 181 Pa. Super. Page 416]

OPINION BY WRIGHT, J.

On February 3, 1953, Michael J. Rankin instituted an action in divorce against his wife, Edith L. Rankin. The parties were at that time aged 58 and 43 years, respectively. The complaint originally alleged cruel and barbarous treatment and indignities to the person, but was subsequently amended to include a charge of desertion. After rules for a bill of particulars, and for alimony pendente and counsel fee, were determined, the lower court, on April 5, 1954, appointed a master. On January 3, 1955, the master filed his report recommending a decree on all three grounds. Following the filing of exceptions and argument thereon, the lower court dismissed the exceptions and, on October 10, 1955, entered a final decree. This appeal followed.

Certain facts are not seriously in dispute, and are thus summarized by President Judge CREPS: "The parties were married in West Virginia on July 4, 1942. It appears that they knew each other for a period of about ten years prior thereto. Until about two months before the marriage, defendant, a registered nurse, had been employed as assistant superintendent of Ellwood City Hospital, Ellwood City, Pennsylvania, in which position she received a salary of $110.00 per month, plus room, board and laundry. Some two months prior to the marriage, defendant went, at plaintiff's request, to Clarksburg, West Virginia, where she enrolled in a business school, agreeably to plaintiff, to the end that she would be able to assist plaintiff, who could neither read nor write, in the operation of his coal stripping business which he had established in 1938.

[ 181 Pa. Super. Page 417]

Following defendant's attendance at business school for about two months, the parties were married. After the marriage, they lived for a time at the Gore Hotel, Clarksburg, West Virginia, and later they successively resided at Lost Creek, West Virginia, Johnstown, South Fork and Windber, all in Pennsylvania, and in the latter part of 1944 they moved to Washington County, Pennsylvania, to a farm of about one hundred acres with a large house containing ten or eleven rooms thereon which had been bought by plaintiff and title taken in his name; later, however, the title was vested in plaintiff and defendant as tenants by the entireties. In the meantime, plaintiff rather successfully conducted his coal stripping business, defendant acting as bookkeeper, and following their removal to the farm, plaintiff was necessarily away from home during the week, returning over weekends, and defendant performed her duties in an office located in the farm home. In the early part of 1947 a partnership consisting of plaintiff, defendant and defendant's father was formed for the conduct of the coal business. In 1948 a corporation was formed which took over the assets of the partnership, the stock in said corporation being held as follows: Plaintiff - 519 shares; defendant - 480 shares, accountant for the company - the remaining 1 share. That the marriage of the parties, particularly after they moved to Washington County, was not harmonious is clearly derived from the evidence in the case".

Before discussing the marital disputes and the causes alleged for the divorce, we deem it appropriate to make some observations concerning the master's report. While the recommendations of the master are entitled to careful consideration, they are advisory only and are not controlling either upon the lower court or

[ 181 Pa. Super. Page 418]

    upon this court: Philo v. Philo, 154 Pa. Superior Ct. 563, 36 A.2d 833. See also Friess v. Friess, 156 Pa. Superior Ct. 38, 39 A.2d 151. We are required to consider the evidence de novo, pass upon its weight and upon the credibility of witnesses, and reach an independent conclusion upon the merits: Huston v. Huston, 130 Pa. Superior Ct. 501, 197 A. 774. And see Rinoldo v. Rinoldo, 125 Pa. Superior Ct. 323, 189 A. 566. We must sedulously examine and weigh the record to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias and interest, opposition to incontrovertible physical facts, patent falsehood and other factors by which credibility may be ascertained: Silfies v. Silfies, 168 Pa. Superior Ct. 421, 79 A.2d 130. If the record discloses no sound basis for rejecting the master's conclusions as to credibility, founded upon his observation of the demeanor and appearance of the witnesses, we are warranted in accepting his ...


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