Appeal, No. 142, Oct. T., 1959, from order of Municipal Court of Philadelphia, Dec. T., 1949, No. 2939; Sept. T., 1958, No. 4373, Domestic Relations No. 102427, in case of Commonwealth ex rel. Vera Scarpato v. Salvatore Scarpato. Order reversed.
John Justin McCarthy, for appellant.
No argument was made nor brief submitted for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 190 Pa. Super. Page 46]
The husband in this case has appealed from the order of the Municipal Court of Philadelphia County directing him to pay his wife the sum of $25.00 per week for her support.
The parties were married February 6, 1928, and eight children were born of this marriage. On August 26, 1949, when the parties were separated and two of
[ 190 Pa. Super. Page 47]
the children were living with the wife, a petition was filed seeking support for herself and the two children. A hearing was held on this petition and, since the wife had left the home of her husband and sought to obtain support for herself, in addition to the children, testimony was taken to determine the cause of her leaving and to determine whether her separation was for sufficient cause. That testimony disclosed that for some five years previous to the separation, the parties lived separate and apart from each other in the same house. She gave as her reason for leaving that the husband beat her with a strap the very morning she left. The husband testified that she left because she was pregnant and he had nothing to do with it. In corroboration of this, he produced a letter, admittedly written and signed by the wife and addressed to a person designated only as Tony, in which she made damaging admissions amounting to adultery and that the father of the youngest child was not her husband but her lover, Tony. In that letter, among other things, she characterized her husband as "just a has been" and Tony as a "little hot G.I." At the conclusion of this hearing, the Honorable Judge BELOFF entered an order for the support of the children only and excluded the wife.
The separation continued and the wife received no support from the husband. On September 16, 1958, the wife again filed a petition asking support for herself. A hearing on this petition was held on October 31, 1958, and the court below entered an order for her support without referring to the previous adjudication. Neither the husband or his counsel made reference to this previous adjudication because they were led to believe that the petition was for an increase in the support for the children, and, in fact the husband was not served with a copy of this petition. The court below
[ 190 Pa. Super. Page 48]
proceeded on the theory that the husband had the burden of proving a defense to the petition for support and then ...