No. 2211 October Term, 1977, Appeal from the Amended Final Decree Dated July 13, 1977 of the Court of Common Pleas of Delaware County, Civil Action - Law Division, at Nos. 4700 of 1975.
Thomas J. Stapleton, Jr., Drexel Hill, for appellant.
Read Rocap, Jr., Media, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort and Hester, JJ. Spaeth, J., did not participate in the consideration or decision of this case. Hester, J., dissents as to the real estate.
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Appellant contends that the lower court erred in granting partition of property which appellant and appellee held as tenants by the entireties because appellee did not prove that appellant wrongfully appropriated property to his own use
[ 256 Pa. Super. Page 93]
and excluded appellee therefrom. We disagree and, therefore, affirm the decree of the lower court.
At a pre-trial conference before the Delaware County Court of Common Pleas on April 8, 1976, the parties stipulated the following facts: On April 8, 1975, appellee, Elaine Sheppard Vento, filed a complaint in equity and partition against appellant, her husband, Frank J. Vento. Appellee alleged that she and appellant were married in Philadelphia, on November 16, 1957. On September 15, 1974, the parties separated; appellee left the family residence where appellant remained with their three teenage children. Prior to December 24, 1973, the parties opened a joint savings account*fn1 at a Philadelphia bank; either party had power to draw.*fn2 On October 22, 1974, appellant withdrew the sum of $9500.00 in cash from the account, leaving a balance of $32.78.
In her complaint, appellee alleged that appellant withdrew $9500.00 from the joint account without appellee's knowledge or consent and appropriated the money for his own use. Consequently, she requested the court to partition the $9500.00, the parties' real estate, and the household furnishings.
In his answer, appellant responded that he did not deny appellee access to the jointly owned savings account nor did he exclude her from the family residence and household furnishings. Following a non-jury trial on July 29, 1976, at which both parties testified, the lower court issued an adjudication in which it found that appellant wrongfully withdrew $9500.00 from the joint savings account without appellee's knowledge or consent and appropriated the money to his own use. Accordingly, the court entered judgment
[ 256 Pa. Super. Page 94]
against appellant for $4750.00 plus interest from October 22, 1974, and ordered partition of the real estate and its furnishings. After the court dismissed appellant's exceptions, it entered ...