Opinion
October 8, 1957.
November 12, 1957.
Appeals — Timeliness — Support proceeding — Order of Municipal Court of Philadelphia County — Provisions mandatory — Act of May 19, 1897, P.L. 67.
1. Section 4 of the Act of May 19, 1897, P.L. 67, as amended (which provides, in pertinent part, that no appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions or of oyer and terminer, unless taken within forty five days from the entry of the sentence or order) is applicable to a support proceeding instituted in the Municipal Court of Philadelphia County, inasmuch as that court is a substitute in support cases for the court of quarter sessions.
2. The provisions of § 4 of the Act of 1897, as amended, are mandatory and binding whether or not the opposite party moves to quash.
3. Where an appeal is not taken within the time prescribed by § 4 of the Act of 1897, as amended, the appellate court must notice the defect, and there is no room for the exercise of discretion on its part.
Husband and wife — Support — Discretion of court below — Appellate review.
4. In a support proceeding, the appellate court will not interfere with the determination of the court below unless there has been a clear abuse of discretion.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 335, Oct. T., 1957, from order of Municipal Court of Philadelphia County, May T., 1955, No. 1726, Domestic Relations Division No. 192469, in case of Commonwealth ex rel. Rose Nicosia v. Joseph Nicosia. Appeal quashed.
Proceeding upon petition of defendant to reduce order entered for support of wife and child. Before MILLEN, J.
Order entered reducing previous order for support. Relatrix appealed.
J.J. Kilimnik, for appellant.
William A. Robbins, for appellee.
Argued October 8, 1957.
On May 6, 1957, pursuant to a petition for reduction, the Municipal Court of Philadelphia County entered an order fixing the amount of support for a wife and one child at $25.00 per week. On August 6, 1957, the wife filed an appeal to this Court. Section 4 of the Act of May 19, 1897, P.L. 67, as amended, 12 P.S. 1136, provides in pertinent part: "No appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions or oyer and terminer, unless taken within forty-five days from the entry of the sentence or order". This statute is applicable to a support proceeding instituted in the Municipal Court of Philadelphia County, inasmuch as that court is a substitute in support cases for the court of quarter sessions: Commonwealth ex rel. Bundy v. Bundy, 159 Pa. Super. 153, 47 A.2d 537; Commonwealth ex rel. Arbitman v. Arbitman, 161 Pa. Super. 529, 55 A.2d 586; Commonwealth ex rel. DeShields v. DeShields, 173 Pa. Super. 233, 98 A.2d 390. Its provisions are mandatory and binding whether or not the opposite party moves to quash: City of Pittsburgh v. Ruffner, 134 Pa. Super. 192, 4 A.2d 224. We must notice the defect, Fenerty Disbarment Case, 356 Pa. 614, 52 A.2d 576, and there is no room for the exercise of discretion on our part: Commonwealth v. Mackley, 175 Pa. Super. 304, 104 A.2d 169. This appeal must therefore be quashed.
We are impelled to add that we have carefully read the voluminous original record in this case. Prior to the order of reduction, there were eight separate hearings during a period of over two years. Judge MILLEN was consistently patient and fair, indeed indulgent and long-suffering. We are entirely satisfied that the contentions which counsel for appellant endeavors to advance on this appeal were disposed of properly in the opinion of the lower court. In a support proceeding, the appellate court will not interfere with the determination of the court below unless there has been a clear abuse of discretion: Commonwealth ex rel. Spielvogel v. Spielvogel, 181 Pa. Super. 61, 121 A.2d 886.
The appeal is quashed.