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BLAIR v. BLAIR (06/15/61)

June 15, 1961

BLAIR
v.
BLAIR, APPELLANT.



Appeal, No. 126, Oct. T., 1961, from order of Court of Common Pleas of Montgomery County, Feb. t., 1957, No. 238, in case of Ralph H. Blair, Sr. v. Mary M. Blair. Order affirmed.

COUNSEL

Tullio Gene Leomporra, with him James P. Geoghegan, for appellant.

H. Lyle Houpt, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 195 Pa. Super. Page 407]

OPINION BY WATKINS, J.

This is an appeal from an order of the Court of Common Pleas of Montgomery County refusing to open a decree a.v.m. entered by that court on July 31, 1958, on the grounds of desertion and indignities to the person, in favor of Ralph H. Blair, Sr., the husband-appellee, and against Mary M. Blair, the wife-appellant.

The divorce complaint was lodged by the husband on March 8, 1957. It was admitted that the husband was not a resident of Montgomery County. The divorce complaint alleged that the wife resided with her sister, Helen C. Sell, at 1097 Terrace Lane, Pottstown, Montgomery County, Pennsylvania. Attempts to make service at that address were unsuccessful and on April 26, 1957, the Sheriff made a return of "not found". Service was then made by publication and a master, D. Stewart McElhone, Esq., was appointed. After a number of hearings, the master filed his report recommending a divorce and the decree in divorce was entered by the court below on July 31, 1958. The two children of the marriage, after the couple's separation, remained with the husband and were with him at the time of the divorce hearings. The husband has since remarried.

On September 8, 1958, this petition to open the decree in divorce was filed, in which the wife a veered that she was never a bona fide resident of Montgomery County and that the instant decree was entered "without notice to her and without an opportunity to be heard and present her defense." Rule 1122 Pa. R.C.P. provides: "The action may be brought in and only in the county in which the plaintiff or the defendant resides." The question is one of venue and not jurisdiction

[ 195 Pa. Super. Page 408]

    and venue may always be waived. It is a matter of procedure and not substance. McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960). Where the applicable statute or rule, as in this Commonwealth, requires residence in the county where the suit is instituted, but is silent as to any requisite duration of such residence the courts seem agreed that any residence, for no matter how brief a period, is sufficient time. "Under venue statutes applicable to divorce suits but containing no specification of an amount of time as to the plaintiff's residence in a particular county which is requisite to the laying of venue therein, it is universally held that the residence need not have been continued for any particular length of time." 54 A.L.R. 899. Rosenberg v. Rosenberg, 163 Pa. Superior Ct. 138, 60 A.2d 350 (1948); Miln v. Miln, 175 Pa. Superior Ct. 613, 106 A.2d 862 (1954).

The master, after the first hearing, decided that he wanted corroborative evidence as to the residence of the wife. At a subsequent hearing, Helen Sell, a sister of the wife, and a registered nurse, testified that the wife lived with her at 1097 Terrace Lane, Pottstown, since January 24, 1957; and indicated to her that it was the wife's intention to remain with her indefinitely Helen Sell was 50 years of age, a registered nurse, employed as a nurse anesthetist at the Pottstown hospital. The husband testified that she resided with her sister at the above address and that it was the last residence of which he had knowledge.

We agree with the court below that: "In our view, the Master had a right to accept this sworn allegation and uncontested testimony as to the residence of defendant. The testimony showed that defendant moved into her sister's home with the intent to remain there indefinitely on January 24, 1957. The plaintiff testified that, so far as ...


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