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COMMONWEALTH EX REL. PILLA v. PILLA. (04/16/59)

April 16, 1959

COMMONWEALTH EX REL. PILLA, APPELLANT,
v.
PILLA.



Appeal, No. 67, Oct. T., 1959, from order of Municipal Court of Philadelphia, No. 199958, in case of Commonwealth ex rel. Nora Pilla v. Carl Pilla. Order affirmed.

COUNSEL

Leo Francis Doyle, for appellant.

B. I. Shoolin, for appellee.

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

Author: Watkins

[ 189 Pa. Super. Page 303]

OPINION BY WATKINS, J.

This is an appeal from an order of the Municipal Court of Philadelphia denying the support petition of Nora Pilla, the appellant, on the ground that a valid common law marriage never existed between her and her alleged husband, Carl Pilla, the appellee.

Nora Pilla testified that she and the appellee were married on October 1, 1952 by common law in Philadelphia, Pennsylvania. The record discloses that a meretricious relationship between the parties began in 1949 or 1950, at which time the appellee was a married man with three children. The wife of the appellee divorced him on October 10, 1952.

As to the alleged common law ceremony, the appellant testified: "I knowed him (defendant) around 1949. Then in October, 1952, he got a divorce from his wife... So this minister came to the house and he said, You kids ought to go through a ceremony and then you can live together, and then he asked me if I would be Carl's wedded wife, and I said, Yes, and he asked Carl and he said, Yes, and he read the Bible in front of us. Q. Did you get a license? A. No, that was an Indian ceremony we went through." Questioned as to what response she gave when "the minister asked would you take him as your husband?", she testified: "A. I said, Yes, sir. Q. Yes, sir? A. Yes, sir, I will. Q. Yes, sir, I will? Did you say, Yes, I do at any time? A. Well, I was pretty nervous. Q. Did you say, Yes, I do?

[ 189 Pa. Super. Page 304]

A. That is probably what I did say. Q. I am not asking you what you probably said; I am asking what you said. A. Yes.... I do and I will. I said them all because I was happy... He (defendant) said I will.... He said, I do.... He (minister) went on and finished it and said, Will you stick through sickness and death? or something like that, and we said Yes and then he finished."

The appellee disputes this evidence and denied any such event ever took place and he is certainly supported by the admitted fact that in May, 1957, they both took blood tests, went to the City Hall and got a license, and even had a minister waiting, when, according to the appellant, he did not go through with it, and according to the appellee, his children did not want him to get married. If the appellant were telling the truth about the so-called "Indian ceremony", why did she make such a strenuous attempt to get married in 1957? It seems clear that the court below, having had the opportunity of seeing and hearing the witnesses, indicated that it was not impressed with the truthfulness of the appellant as regards the "Indian ceremony" but believed the appellee that it never took place. The court below found further that even if it did take place, the appellee was a married man at the time.

Whether a marriage contract has been established is always a mixed question of law and fact and we, as the reviewing court, are bound to scrutinize all the evidence but if there is sufficient evidence to support the factual findings of the court below, such findings should not be disturbed. Here this is not even a close question - there is evidence that is clear, sufficient ...


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