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COMMONWEALTH v. LEVITZ (04/16/59)

April 16, 1959

COMMONWEALTH
v.
LEVITZ, APPELLANT.



Appeal, No. 83, Oct. T., 1959, from order of Court of Quarter Sessions of the Peace of Montgomery County, June T., 1957, No. 187, in case of Commonwealth v. Leon Levitz. Order reversed in part.

COUNSEL

Robert D. Abrahams, with him Harry M. Sablosky, and Abrahams & Loewenstein, for appellant.

H.A. Dower. with him Robert W. Tredinnick, James D. Christie, and Perkin, Twining & Dower, and Smillie, Bean, Davis & Tredinnick, for appellee.

Before Rhodes, P.j., Hirt, Wright, Woodside, Ervin, and Watkins, JJ. (gunther, J., absent).

Author: Ervin

[ 189 Pa. Super. Page 439]

OPINION BY ERVIN, J.

This is an appeal by a husband from the order of the court below refusing to revoke a support order theretofore made for his wife.

On December 28, 1956 President Judge KNIGHT refused an order for the support of the wife because she had taken $10,000.00 from a joint account of herself and husband. In the hearings preceding that order the husband presented proofs in an endeavor to prove that the wife had committed adultery with one Nathan Katz but the court found that the evidence was not sufficient to prove adultery although it did find that the wife was indiscreet. On October 18, 1957 President

[ 189 Pa. Super. Page 440]

Judge KNIGHT ordered the husband to pay $140.00 a week toward the maintenance and support of the wife and $25.00 a week for the maintenance and support of a daughter. Again Judge KNIGHT found that the evidence was insufficient to prove the adultery but he said she had been "at least very indiscreet in her conduct with another man" and that "her own testimony gives rise to grave suspicion as to her faithfulness as a wife." The wife testified in the hearing of November 7, 1956 as follows: "Q. Have you had any other kind of an association or connection with Mr. Katz? A. Any other kind? Q. Yes. A. No, I haven't. Business and an occasional dinner date." On February 6, 1958 the husband filed a petition to revoke the order and averred in the petition that his wife had committed adultery with one Saul Kalishman. Hearings were held on March 11 and April 2, 1958 before Judge MORRIS GERBER, President Judge KNIGHT'S term of office having ended on the first Monday of January 1958. Testimony was given at these hearings to show that the wife had met Mr. Kalishman at the Cherry Hill Inn in New Jersey following an arrangement to meet him there. The evidence showed and, in fact, the wife admitted that she had gone to the room of Mr. Kalishman and that after she had been therein for some period of time her husband and three detectives entered the room. The husband testified that Kalishman was "standing there in a white shirt, the collar was open, and he had no necktie on.... He had no shoes on. He was in his stocking feet, and his belt buckle was partially opened. He had a drink in his right hand. He seemed rather flustered and asked me what I wanted, and I brushed past him and walked into the room." He further testified that his wife was in a slip and that "No, she didn't have on a dress. She seemed to have a drink in her hand, as I recall. Her

[ 189 Pa. Super. Page 441]

    hair was sort of mussed up, and her lipstick was definitely mussed, and I asked her what she was doing there, and she was very incoherent and flustered and couldn't seem to answer." The husband's testimony was corroborated by the detectives and some of them testified that they saw a woman's dress hanging in the closet. Thereafter Nathan Katz, having heard of the Cherry Hill Inn affair, turned over to the husband a bundle of letters written to him by the wife. The letters were written prior to the hearings of October 31 and November 7, 1956. Many quotations could be taken from these letters to show that the wife's association with Nathan Katz went far beyond activities normally associated with business. We do not intend to burden this opinion by quoting extensively from the letters and we will confine our reference to the following: "Tell the truth now, didn't you think of me a little less often this week? Don't be afraid to admit it. It's bound to happen. After all, you made the conquests of conquests! There isn't any more you would want from me or to look forward to. And I know I will be telling myself real soon, 'Serves you right.' Oh, Nat, you're such a sweet guy that I have the intense desire to make you happy and to please you, and yet now I feel that I gave myself my own walking papers. I should never have given in to your request. I haven't felt very good or happy about it at all. But what's done is done, so I can't cry over spilled milk.

"Tell me, do you think you would recognize me yet if I passed you by on the street? I bet not. Each time ...


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