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COMMONWEALTH EX REL. NASELSKY v. NASELSKY (09/13/62)

September 13, 1962

COMMONWEALTH EX REL. NASELSKY
v.
NASELSKY, APPELLANT.



Appeal, No. 210, Oct. T., 1962, from order of County Court of Philadelphia, Sept. T., 1959, No. 4187, in case of Commonwealth ex rel. Shirley Naselsky v. Max Naselsky. Order affirmed.

COUNSEL

Max Palitz, for appellant.

Sidney Ginsberg and John R. Meade submitted a brief.

Before Rhodes, P.j., Ervin, Wright, Woodside, Montgomery, and Flood, JJ. (watkins, J., absent).

Author: Woodside

[ 199 Pa. Super. Page 272]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the County Court of Philadelphia dismissing a petition to reduce an order of $50 per week for the support of a wife.

The original order was entered April 7, 1961. The petition to reduce was filed November 21, 1962. No appeal having been taken from the original order, the wife's right to support has been established and that order became res adjudicata as of its date. It is, of course, subject to modification upon proof of subsequent material changes in conditions and circumstances affecting the relation of the parties. Commonwealth ex rel. D'Alfonso v. D'Alfonso, 181 Pa. Superior Ct. 71, 121 A.2d 900 (1956). This appeal cannot be used to have us review the merits of the original order. Commonwealth v. Knobloch, 89 Pa. Superior Ct. 216 (1926).

The defendant, approximately 58 years of age, and his wife, approximately 53 years of age, had been married over 30 years when they separated four years ago.

At the first hearing on the petition for support the defendant admitted that he was engaged in the pretzel business with an investment of approximately $8800 from which he was drawing $75 per week. He also admitted to having a small bank account, an automobile and transactions in buying and selling scrap or surplus materials. He subsequently sold his pretzel business at 12th & Market Streets in Philadelphia for $15,000.

Since the order was entered, he again went into the pretzel business, but contends he lost money on it. Judge MICHAEL J. O'DONNELL who heard the case concluded as follows:

"The fact that he contends he sustained some small loss in the new pretzel business in New Jersey, which he operated for a short period of time in 1960, does not mean ...


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