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

April 13, 1961

HERGER, APPELLANT,
v.
HERGER.



Appeal, No. 318, Oct. T., 1960, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1956, No. 7875, in case of Carl Paul Herger v. Anna Louis Herger, also known as Anna Herger. Order affirmed.

COUNSEL

Israel Stiefel, for appellant.

William F. Quinlan, for appellee.

Before Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., and Woodside, J., absent). 41

Author: Montgomery

[ 195 Pa. Super. Page 41]

OPINION BY MONTGOMERY, J.

This is an appeal from an order dismissing exceptions to a Master's report and the complaint in an action for divorce a.v.m. brought by the appellant. The appellant, Carl Paul Herger and the appellee, Anna Louis Herger, were married April 11, 1931, and cohabited as husband and wife until February, 1957. A son, now 25 years of age, was born of the marriage.

Appellant's complaint alleges indignities beginning with the year 1933 and continuing for 24 years until the time of separation. The case was referred to a master, who recommended that the complaint be dismissed because of insufficient evidence. Appellant filed exceptions challenging every finding of fact and the conclusions of law made be the Master. Upon these exceptions the case was heard by the lower court en banc, which accepted the recommendations of the master and, after permitting reargument, reaffirmed its order dismissing the complaint.

At the Master's hearing appellant's testimony cites instances wherein he accuses his wife of name calling,

[ 195 Pa. Super. Page 42]

    periods of silence, failure to prepare his meals, insults, slurs, an attempt to have their son lose respect for his father, a lack of respect for appellant's mother, and a feigned attempted suicide for the purpose of frightening him.

It is apparent from the record that these instances of which the appellant complains are isolated and sporadic and span practically the entire period of the marriage. The testimony shows that in 1933 appellee threw something at the appellant but that it had been ten years since appellee last threw anything at him; that the appellee failed to prepare meals for her husband on six occasions but this was over a period of 24 years; that the appellee threw out some food delicacies purchased by the appellant but this happened ten years prior to their separation; that once or twice appellee had thrown her wedding ring at appellant; that fifteen years prior to the separation she had tossed some clothing of appellant's out the window; that ten years prior to separation she had appropriated a $20.00 income tax refund check.

Appellant further testified that the appellee refused to attend social functions with him. This is admitted, but the appellee explains that she was unable to attend these ...


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