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MASCIULLI v. MASCIULLI. (04/13/61)

April 13, 1961

MASCIULLI, APPELLANT,
v.
MASCIULLI.



Appeal, No. 16, March T., 1961, from order of Court of Common Pleas of Dauphin County, Sept. T., 1957, No. 1386, in case of Sydney E. Masciulli v. Giocondino J. Masciulli, Jr. Order affirmed.

COUNSEL

John J. Krafsig, for appellant.

Bruce E. Cooper, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 194 Pa. Super. Page 647]

OPINION BY WRIGHT, J.

On May 16, 1958, in an action for divorce a.v.m. on the ground of indignities to the person instituted by Giocondino J. Masciulli, Jr. against Sydney E. Masciulli, the Court of Common Pleas of Dauphin County granted the plaintiff-husband a final decree. On September 5, 1958, the wife petitioned for a rule to show cause why the decree should not be vacated. This petition alleged that the husband had intentionally withheld from his wife notice of the pendency of the divorce action and of the Master's hearing, wherefore the decree in divorce was fraudulently obtained. A rule was granted, to which the husband filed an answer. After taking testimony, the court below, on August 2, 1960, entered an order opening the decree in divorce, and remanding the case to the Master "for the purpose of taking the testimony de novo after giving due and lawful notice of the time and place of the

[ 194 Pa. Super. Page 648]

Master's hearing". This appeal by the husband followed.

The parties were married on September 5, 1953, and thereafter lived at 305 South 17th Street in the City of Harrisburg. No children were born of their union. The wife left the common habitation on December 6, 1957. She returned on December 21, 1957. She left again on February 2, 1958, and did not return. The complaint in divorce was filed on December 17, 1957. It was returned by the Sheriff "not found". Service by publication was directed, and notices were published in the Middletown Journal and the Dauphin County Reporter. Notice of the Master's hearing was sent by registered mail to the wife at 305 South 17th Street and was returned "moved - address unknown". The wife did not appear at the hearing, nor was she represented by counsel. The husband testified before the Master, April 7, 1958, as follows: "Q. Do you know where she is now? A. I think she is in Harrisburg, either at her mother's or her girl friend's. Q. But you don't know how to locate her? A. No, I don't".

At the hearing on the rule, November 5, 1959, the wife testified that she was living with her husband from the latter part of December, 1957, to the early part of February, 1958; that on February 12, 1958, and several times during the following week, her husband called her on the telephone at the home of Mr. and Mrs. Clarence Taylor, 8151 Chamber Hill, Harrisburg, where she was temporarily residing; that she then moved to the residence of her mother, Mrs. Catherine Fox, 3906 Jonestown Road, Harrisburg; that her husband "came over to see me" at that address; that they thereafter went driving on several occasions and conversed over the telephone "just about every evening" until the end of May, 1958; that she was employed at the Harrisburg East Diner during March,

[ 194 Pa. Super. Page 6491958]

, and her husband took her to work "quite a few times"; that she saw him in April "on an average of twice a week" and talked with him by telephone "definitely once a night, sometimes twice a night"; that their meetings and telephone conversations continued, somewhat less frequently, throughout the month of May, 1958; that at no time during this whole period was there any mention ...


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