Opinion
October 7, 1954.
November 8, 1954.
Parent and child — Support — Agreement to support minor child — Assumpsit — Judgment — Attachment of parent's wages — Act of April 15, 1845, P. L. 459.
1. The Act of April 15, 1845, P. L. 459 (which provides that "the wages of any laborer or the salary of any person in public or private employment shall not be liable to attachment in the hands of the employer"), prohibits attachment execution of a father's salary on a judgment in assumpsit for arrearages in payments of support for a minor child provided for in a separation agreement between the parents. [239-42]
2. Commonwealth ex rel. Deutsch v. Deutsch, 347 Pa. 66, distinguished. [241-2]
Argued October 7, 1954. Before STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 261, March T., 1954, from order of Court of Common Pleas of Allegheny County, July T., 1954, No. 1097, in case of Minnie A. Marble v. Walter N. Marble. Order affirmed.
Plaintiff, the divorced wife of defendant, sued him in assumpsit on a written separation agreement and obtained judgment for the amount of arrearages in payments provided for the support of their minor daughter. An attachment execution was served on defendant's employer who admitted that it was indebted to defendant for salary. Defendant filed a petition to quash the attachment, which was granted. Plaintiff appealed.
A portion of the opinion of SOFFEL, J., is as follows:
"The Act of April 15, 1845, P. L. 459, § 5, 42 Pa.C.S.A. § 886, provides 'That the wages of any laborers, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer.'
"Unless there is some specific statute which eliminates this exemption from attachment of salary and wages as provided in the Act of 1845, plaintiff cannot maintain this attachment. Catlin v. Ensign, 29 Pa. 264; Firmstone v. Mack, 49 Pa. 387; Integrity Trust Co. v. Taylor, 312 Pa. 3.
"Plaintiff has suggested three statutes.
"The first of these is the Act of 1913, P. L. 72 (18 Pa.C.S.A. § 1252) which was repealed and re-enacted by The Penal Code of 1939, P. L. 872, Section 733, 18 Pa.C.S.A. § 4733, providing that if any husband or father separates himself from his wife or from his children or from wife and children without reasonable cause, or neglects to maintain his wife or children, any magistrate upon proper information made before him may issue his warrant for the arrest of said person and bind him over to appear at the Court of Quarter Sessions or other court having jurisdiction, to answer the charge of desertion and empowering said court making an order for support to enforce it by the issuance of 'the appropriate writ of execution against any property, real or personal belonging to the defendant, and its writ of attachment execution against any money or property to which he may be in any way entitled, whether under what is known as a spendthrift trust or otherwise.'
"The second act relied upon by plaintiff is that of 1921, P. L. 434, Section 1, ( 48 P. S. § 136) extending this same authorization to 'any court of competent jurisdiction' which 'has made an order or entered a decree or judgment against any husband requiring him to pay any sum or sums for the support of his wife or children or both.'
"The third statute mentioned by plaintiff is The Pennsylvania Civil Procedural Support Law of 1953, P. L. — ( 62 P. S. § 2043.31 et seq.) providing that the Quarter Sessions Court of any county, the Municipal Court of Philadelphia and the County Court of Allegheny County in desertion and non-support cases may through proper proceedings attach the wages, salaries or commissions of any person owing a duty of support as defined in that statute.
"None of these statutes cited by the plaintiff and no other statute on the books authorizes the attachment of defendant's wages or salary on this judgment.
"The Act of 1913 applies only to criminal or quasi criminal proceedings in the Quarter Sessions or other court having jurisdiction of informations for desertion.
"The Act of 1921 applies only to the enforcement of a decree or judgment of any court of competent jurisdiction 'against any husband requiring him to pay any sum or sums for the support of his wife or children or both.'
"The Act of 1953 applies only to civil support proceedings in the Quarter Sessions, the County Court of Allegheny County or the Municipal Court of Philadelphia.
"Plaintiff cites also the case of Commonwealth ex rel. Deutsch v. Deutsch, 347 Pa. 66.
"In that case, the Court held that a wife who has obtained a support order in the Court of Quarter Sessions against her husband may attach his wages notwithstanding the exemption provided by the Act of 1845 because her case comes within the statutory exceptions provided by the Acts of 1913 and 1921 referred to supra.
"Mr. and Mrs. Deutsch were still married. They were still husband and wife. She had a support order made by the Quarter Sessions Court of Cambria County (such an order would be made in our county in the County Court) and her case clearly fell within the scope of the exceptions set out by the Acts of 1913 and 1921. Although the 1953 Civil Procedural Support Law was not yet enacted there is no doubt that on Mrs. Deutsch's support order in the Court of Quarter Sessions she could today attach her husband wages under that Act of 1953 also.
"The trouble with plaintiff's position is that she is no longer defendant's wife and she does not have a support order entered by a proper court (whether it be the Quarter Sessions, County Court of Allegheny County or the Municipal Court of Philadelphia) enforcing her husband's legal obligation to support her or their child.
"What she has, on the contrary, is a regular money judgment entered in the Court of Common Pleas in an action of assumpsit based on a written contract made more than ten years ago when she and defendant were still married.
"It is our conclusion that the rule to show cause why the attachment execution attaching salary of the defendant in the hands of his employer, Jones Laughlin Steel Corporation, should not be quashed should be made absolute. An order will be entered quashing the attachment."
Ralph H. Smith, Jr., with him Smith Weaver, for appellant.
John A. Metz, Jr., with him Jacob Shulgold, and Metz, McClure, Hanna MacAlister, for appellee.
The order of the court below is affirmed on the able opinion of Judge SOFFEL.