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WILLIAM BANKO v. WILLIAM MALANECKI AND GAIL MALANECKI (09/18/81)

filed: September 18, 1981.

WILLIAM BANKO, APPELLANT,
v.
WILLIAM MALANECKI AND GAIL MALANECKI, A/K/A GAIL WOODARD, A/K/A GAIL BANKO



No. 313 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division - Equity, of Erie County, No. 54-E-1975.

COUNSEL

Gary V. Skiba, Erie, for appellant.

Eugene J. Brew, Jr., Erie, for appellees.

Hester, Brosky and Van der Voort, JJ. Brosky, J., filed a concurring and dissenting opinion.

Author: Hester

[ 291 Pa. Super. Page 13]

Presently before the court is appellant's appeal from the order of the lower court dated March 31, 1980, wherein the court en banc dismissed all exceptions*fn1 to the Decree Nisi previously filed and entered the same as a final decree.

During a non-jury trial, only the appellant testified. The salient facts may briefly be summarized as follows: In 1969, appellant's first wife of over twenty (20) years died. Thereafter appellant developed a serious drinking problem. In 1972, appellant met appellee and they dated until the later part of 1973 when it was agreed that appellant would move in with the appellee. They held a "wedding reception" in January of 1974 to convince people they had married (although in actuality they had not). Appellant listed his house for sale in November, 1973 and closed on it on April 23, 1974.

Trusting her "all the way," following the closing on his house (on the same day), appellant out of the proceeds of the closing (a) paid off appellee's mortgage in the exact amount of $2,195.18 and (b) paid off appellee's auto loan in the exact amount of $3,782.86. With respect to the mortgage:

[ 291 Pa. Super. Page 14]

Q Why did you pay that off for Gail?

A Because I loved Gail and like I said, I thought that we were going to live together and things were eventually going to work out and we were getting married.

Q Did she actually ask you however to pay that bill?

A No, she didn't.

(R 47a)

And in regard to the satisfaction of the auto loan:

Q And again why did you make that payment?

A Same as with the other payment. I wanted to pay off because I felt that someday we would get married.

(R 47a)

In addition to (a) and (b) above, appellant also purchased new furnishings and furniture from Grant's in the approximate amount of $2,500.00 and contributed additional miscellaneous personalty from his recently sold home of a minimum value of $1,500.00 (total $4,000.00).

Within a week following the closing, the parties opened a joint savings account in the names " William Banko and Gail Banko " -- husband and wife, as tenants by the entireties (Trial Exhibit # 3, both parties being signatories thereto. The original deposit was $3,300.00 (from the proceeds of the sale of the house), which subsequently grew by $300.00 (appellant's IRS refund check) and by $1,600.00 (appellant's six week vacation check), to a total of $5,200.00 by June 21, 1974.

During the period of time the parties lived together (January to July, 1974), both were gainfully employed; when appellant received his pay check he would turn it over to the appellee, retaining only $10.00 per week as spending money. Appellee in turn paid all normal monthly bills and expenses.

In July, things started to change, "pressure" started to build, and appellant started to drink. Three or four days later, following an argument, appellee told appellant to leave -- to get out -- and he did. Subsequently, appellant was hospitalized, and then spent 28 days at Serenity West. Following discharge, ...


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