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PASTERNAK v. PASTERNAK (11/12/64)

decided: November 12, 1964.

PASTERNAK
v.
PASTERNAK, APPELLANT



Appeal from decree of Court of Common Pleas of Delaware County, March T., 1961, No. 901, in case of Stanley J. Pasternak v. Mary Adelaide Pasternak.

COUNSEL

Frank F. Truscott, with him Philip B. Driver, Jr., Otis W. Erisman, and Truscott, Kline, O'Neill & Howson, for appellant.

Charles E. Rankin, with him Rankin & Rankin, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J. Wright, J., would reverse and dismiss the complaint as recommended by the master.

Author: Watkins

[ 204 Pa. Super. Page 340]

In this action in divorce a.v.m., instituted by the husband-appellee, Stanley J. Pasternak, against the wife-appellant, Mary Adelaide Pasternak, on the ground of indignities to the person, the master recommended

[ 204 Pa. Super. Page 341]

    that the complaint in divorce be dismissed. The Court of Common Pleas of Delaware County sustained the husband's exceptions to the master's report and awarded a decree in divorce. This appeal followed.

The parties were married on October 21, 1944 in Beach Haven, Ocean County, New Jersey. They have resided together at various addresses in Pennsylvania and were residing on Mary Lane, Broomall, Delaware County, Pennsylvania, when they were separated on December 20, 1961. The husband was 45 years of age and is employed as an engineer at the Westinghouse Electric Company; the wife was 50 years of age and is employed as a secretary with the same company. There are no children.

It is true that the report of the master is entitled to great consideration in that he has heard and seen the witnesses and we have so held on numerous occasions, Fiorilli v. Fiorilli, 202 Pa. Superior Ct. 529, 198 A.2d 369 (1964); and that it should not be lightly disregarded, but however, it is advisory only and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome. The reviewing court must consider the evidence de novo, its weight and the credibility of the witnesses. The master's report is not controlling either on the lower court or upon the appellate Court. Rankin v. Rankin, 181 Pa. Superior Ct. 414, 124 A.2d 639 (1956).

We must, therefore, examine this record de novo, consider carefully the master's report and at the same time give great weight to the opinion of the court below wherein this evidence was already considered de novo and the credibility of the witnesses carefully examined in view of the master's report.

After a careful study of this record we are convinced that the court below ...


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