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DIFABIO v. DIFABIO (03/20/63)

March 20, 1963

DIFABIO
v.
DIFABIO, APPELLANT.



Appeal, No. 326, Oct. T., 1962, from decree of Court of Common Pleas of Bedford County, Sept. T., 1961, No. 62, in case of Fulvio DiFabio v. Elaine DiFabio. Decree affirmed.

COUNSEL

Amos Davis, with him Gordon E. Stroup, for appellant.

Paul A. Koonta, for appellee.

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

Author: Watkins

[ 200 Pa. Super. Page 382]

OPINION BY WATKINS, J.

This is an appeal from the decree of the Court of Common Pleas of Bedford County, Pennsylvania, granting a divorce a.v.m., to the plaintiff-appellee, Fulvio DiFabio, from the defendant-appellant, Elaine DiFabio, on the grounds of adultery and indignities to the person.

We have carefully studied this record and have come to the conclusion that the decree should be affirmed and in doing so we are adopting much of the very able opinion of the court below. We agree that, "Although the testimony is most contradictory and the appearance, demeanor, temperament and personality of the witnesses as they appeared on the stand are of great importance in determining their credibility, we deem it the duty of the Court to make its own independent and careful investigation of the evidence, and its own findings and conclusions, keeping in mind the report of the Master as representing the view of an impartial representative of the Court who saw and heard the witnesses."

The master recommended a divorce on both grounds and an examination of his report discloses a careful and detailed study and discussion of the evidence. His disposal of credibility in favor of the plaintiff was made after a careful analysis based on his observation of their attitudes, wherein a high degree of bitterness and passion was displayed. What we said in Bailey v.

[ 200 Pa. Super. Page 383]

    as a waitress at the time of her marriage. She cooked most of the family meals. The plaintiff is a good cook and specialized in Italian dishes. He spent all of his time with his business affairs. He and his wife rarely went anywhere together and, in fact, had little in common except their children. He owned a car but could not operate it. His wife drove the car on frequent trips to Altoona and nearby communities and was accustomed to driving around the streets of Bedford late at night, usually accompanied by another woman. There were constant arguments and name calling by and between the parties, in the home and at the place of business, in front of their children, employees and others.

"On or about February 27, 1961, plaintiff went to the Johns Hopkins Hospital at Baltimore for the removal of a cataract from his eye and remained there until March 10, 1961, when he returned home. Prior to going to the hospital the plaintiff became suspicious of the conduct of his wife and hired one or more detectives to investigate her activities. He became dissatisfied with their services and discharged them not long thereafter. Sometime after his return from the hospital he heard rumors that his wife was running around with other men. On May 20, 1961, Dale Fickes admitted to the plaintiff that he committed adultery with the plaintiff's wife on March 6, 1961, and the plaintiff immediately instituted this action in divorce and moved from the common domicile. The plaintiff and defendant have not cohabited since that time, to wit, May 20, 1961.

"The Complaint and Bill of Particulars allege that the defendant committed adultery with an unknown person about 1:00 a. m. on March 2, 1961, in an alley at the rear of the apartment and near the business establishment of the plaintiff; that ...


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