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COMMONWEALTH EX REL. DULLES v. DULLES (07/17/56)

July 17, 1956

COMMONWEALTH EX REL. DULLES
v.
DULLES, APPELLANT.



Appeal, No. 127, Oct. T., 1956, from order of Municipal Court of Philadelphia County, Domestic Relations Division No. 192,540, in case of Commonwealth ex rel. Frank William Harrison Dulles, and Henry Jack Dulles, minors, by their mother, v. Leib Harrison Dulles. Order affirmed.

COUNSEL

Edwin P. Rome, with him Blank & Rudenko, for appellant.

Claude C. Smith, with him Henry T. Reath, and Duane, Morris & Heckscher, for appellees.

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

Author: Ervin

[ 181 Pa. Super. Page 500]

OPINION BY ERVIN, J.

In this nonsupport proceeding we have for consideration the single question of whether the defendant was immune from personal service.

In the complaint it was averred that the two minor sons, by their mother and natural guardian, bring this action for support against their father; that their parents were divorced on Paril 28, 1949; that from 1947 until the present, defendant has wilfully and maliciously failed to provide financial or other support for the minor complainants and such support has come solely from the mother; that defendant has no regular employment and lives from income and principal of accumulated inherited wealth, and his income is believed to approximate $100,000.00 per year.

[ 181 Pa. Super. Page 501]

A de bene esse appearance was entered in behalf of the defendant and preliminary objections were filed raising the question above mentioned.

Following two hearings for the taking of evidence and the dismissal of the preliminary objection by the lower court this appeal was taken.

The lower court found as a fact that the immunity from service of process had terminated prior to October 31, the date when defendant was served. In the absence of a clear abuse of discretion an appellate court will not nullify the fact finding function of the hearing judge. If the finding of fact in this type of case has competent evidence to sustain it, we will not reverse the finding and substitute our judgment for his. Com. ex rel. v. Betts, 76 Pa. Superior Ct. 96, 98; Com. ex rel. v. May, 77 Pa. Superior Ct. 40, 44; Com. v. Gensemer, 122 Pa. Superior Ct. 456, 457, 185 A. 867; Com. ex rel. Blumhardt v. Blumhardt, 129 Pa. Superior Ct. 443, 446, 195 A. 790; Com. ex rel. Knouse v. Knouse, 146 Pa. Superior Ct. 396, 398, 399, 22 A.2d 618; Com. ex rel. Thompson v. Thompson, 171 Pa. Superior Ct. 49, 54, 90 A.2d 360.

The credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence and knowledge of the subject can best be determined by the judge before whom they appear. Com. ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A.2d 350; ...


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