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ZIRPOLI v. ZIRPOLI (01/21/58)

January 21, 1958

ZIRPOLI
v.
ZIRPOLI, APPELLANT.



Appeal, No. 336, Oct. T., 1957, from decree of Court of Common Pleas of Delaware County, Dec. T., 1955, No. 366, in case of John Zirpoli v. Margaret A. Zirpoli. Decree affirmed.

COUNSEL

Herman Steerman, with him Howard Richard, Jack Brian, William T. Steerman, and Richard L. Hahn, for appellant.

Charles F. Mayer, for appellee.

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

Author: Gunther

[ 185 Pa. Super. Page 379]

OPINION BY GUNTHER, J.

This is an appeal by defendant, Margaret A. Zirpoli, from the entry of a decree in divorce on the ground of desertion.

John Zirpoli and Margaret A. Zirpoli were married on June 3, 1926, and they lived together in various places in Philadelphia and in Delaware County. In January, 1944, they purchased a home at 913 Mason Avenue, Drexel Hill, Pennsylvania, where they resided until March 15, 1954, the date of their separation. Plaintiff is 55 years old and defendant is 54 years old. One child, Adelyn, was born of this marriage, who, during the separation of the parents, was married on July 17, 1954.

On March 15, 1954, plaintiff, at the request of defendant, drove her to her sister's house on 2016 Spruce Street where she was working for her sister. On the way down, plaintiff had to stop his car suddenly at 22nd and Chestnut Streets and defendant was thrown

[ 185 Pa. Super. Page 380]

    against the windshield, receiving injuries about her head. Defendant was taken to the Graduate Hospital where she received first aid and was discharged. Later she was driven to the home of her sister by plaintiff where she has resided ever since. Plaintiff continued to reside at the common domicile during the entire period of the desertion.

On December 12, 1955, plaintiff filed an action in divorce on the ground of indignities. On September 25, 1956, a stipulation was filed amending the ground for divorce and including the ground of desertion. The master filed his report on April 12, 1957 denying plaintiff's right to divorce on the grounds of indignities, but recommending a divorce on grounds of desertion. Exception to the master's report were dismissed and a decree was entered.

From a review of the testimony and the arguments presented we must determine whether the desertion alleged was willful and malicious and persisted in for a period of over two years or whether the wife left by consent or for reasonable cause. The evidence disclosed that after the accident plaintiff continued calling his wife for a period of approximately two weeks at the home of defendant's sister but that he was unable to talk to his wife. The sister always answered the telephone and gave evasive reasons for not calling her. Thereafter he made no further efforts to call her, although he did contribute toward her support for approximately three months. Plaintiff further testified that he was waiting for defendant's return and that the doors were open for her return.

Plaintiff testified that the daughter of plaintiff and defendant took certain clothing belonging to the defendant from 913 Mason Avenue, their common domicile, to the sister's home. This ...


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