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PAVLICIC v. VOGTSBERGER (11/18/57)

November 18, 1957

PAVLICIC
v.
VOGTSBERGER, APPELLANT.



Appeal, No. 238, March T., 1957, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1955, No. 1172, in Equity, in case of George J. Pavlicic v. Sara Jane Vogtsberger. Decree affirmed.

COUNSEL

A. S. Fingold, with him Reuben Fingold and Fingold & Fingold, for appellant.

Henry E. Rea, Jr., with him Marvin J. Apple and Brandt, Riester, Brandt & Malone, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 390 Pa. Page 503]

OPINION BY MR. JUSTICE MUSMANNO

George J. Pavlicic has sued Sara Jane Mills*fn* for the recovery of gifts which he presented to her in anticipation of a marriage which never saw the bridal veil. At the time of the engagement George Pavlicic was thrice the age of Sara Jane. In the controversy which has followed, Pavlicic says that it was Sara Jane who asked him for his hand, whereas Sara Jane maintains that, Pavlicic, following immemorial custom, offered marriage to her. We are satisfied from a study of the record that it was Sara Jane who took the initiative in proposing matrimony - and, as it will develop, the proposal was more consonant with an approach to the bargaining counter than to the wedding alter.

George Pavlicic testified that when Sara Jane broached the subject of holy wedlock, he demurred on the ground that he was too old for her. She replied that the difference in their ages was inconsequential so long as he was "good to her." Furthermore, she said that she no longer was interested in "young fellows" - she had already been married to a young man and their matrimonial bark had split on the rocks of divorce. Hence, she preferred an older man. George qualified. He was 75. Sara Jane was 26.

The May-December romance began on a very practical footing in April, 1949, when Sara Jane borrowed from George the sum of $5,000 with which to buy a house, giving him a mortgage on the premises. In three and one-half years she had paid back only $449 on the mortgage. On the night of November 21, 1952, she visited

[ 390 Pa. Page 504]

George at his home and advanced the not illogical proposition that since they were to be married, there was no point in their having debts one against the other and that, therefore, he should wipe out the mortgage he held on her home. George said to her: "If you marry me, I will take the mortgage off." She said: "Yes," and so he promised to satisfy the mortgage the next day. To make certain that there would be no slip between the promise and the deed, Sara Jane remained at George's home that night; and on the following morning drove him in her automobile to the office of the attorney who was to make, and did make, arrangements for the satisfaction of the mortgage.

Being enriched to the extent of $4,551 by this transaction, Sara Jane expatiated on another rational thesis, namely, that since they were going to be married and would be riding around together she should have a better car than the dilapidated Kaiser she was driving. She struck home with her argument by pointing out that in a new car he would not fall out, for it appears this was an actual possibility when he rode in her worn-out Kaiser. Thus, without any tarrying, she drove George from the Recorder of Deed's Office, where she and the mortgage had been satisfied, to several automobile marts and finally wound up at a Ford agency. Here she selected a 1953 Ford which she said would meet her needs and keep him inside the car. George made a down payment of $70 and on the following day he gave her $800 more, the latter taken from his safety deposit box. Still later he handed her a check for $1350, obtained from a building and loan association - and Sara Jane had her new car.

Less than a year later, Sara Jane complained that her feet got wet in the Ford and she proposed the purchase of an Oldsmobile. She explained that by trading in the ...


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