Summary
In Commonwealth v. Peters, 178 Pa. Super. 82, 113 A.2d 327, we held that the statutory provision is mandatory and there is no room for the exercise of discretion on the part of the Court.
Summary of this case from Commonwealth v. WrightOpinion
March 14, 1955.
April 12, 1955.
Appeals — Time — Nonsupport proceeding — Review of prior orders not appealed from — Act of May 19, 1897, P. L. 67.
1. An appeal by defendant from an order in a nonsupport case which is not taken within 45 days must be dismissed: § 4 of the Act of May 19, 1897, P. L. 67, as amended.
2. A timely appeal by defendant from an order in a nonsupport case does not entitle him to review preceding orders from which no appeal was taken.
Husband and wife — Nonsupport — Illegal arrest — Prosecution under applicable legislation — Detention prior to hearing — Two-term rule — Failure to provide counsel — Jurisdiction of court below — Notice to appear — Resentence to workhouse — Basis for imprisonment — Release — Insolvency Act — Acts of June 24, 1939, P. L. 872, May 24, 1917, P. L. 268, March 31, 1860, P. L. 427, and June 4, 1901, P. L. 404.
3. An illegal arrest does not affect the validity of the subsequent proceedings.
4. In a nonsupport case, a contention by defendant that an order of the court below was based on § 731 of the Act of June 24, 1939, P. L. 872, whereas he was prosecuted under § 733 of this statute, was Held to be without merit, where it appeared, that defendant was committed to the county workhouse under authority of the Act of May 24, 1917, P. L. 268.
5. A contention by defendant that the period of his detention prior to the original court hearing was excessive and unreasonable was Held to be without merit, where it appeared that the hearing was held during the sessions to which the case had been returned and that there was no denial of the right to enter bail pending the hearing.
6. In such case, it was Held that the so-called two-term rule provided for by § 54 of the Act of March 31, 1860, P. L. 427, was inapplicable.
7. A contention by defendant that he was denied due process of law because he was brought to trial without the benefit of counsel and without notice of right to counsel, without allegation that an ingredient of unfairness operated to his detriment, was Held to be without merit.
8. Trial courts are not required to assign counsel in non-capital cases.
9. A husband may be prosecuted for nonsupport under either § 731 or § 733 of the Act of 1939, although there is no proof of desertion, provided there is neglect to maintain.
10. Where it appeared that defendant's wife was granted a divorce in Allegheny County; that defendant averred that she presently resided with the child in West Virginia; and that defendant contended that the support order in Westmoreland County should have been vacated and a new order entered for the support of the child alone either in Allegheny County or in West Virginia; it was Held that defendant's contention was without merit.
11. In a nonsupport proceeding, the only jurisdictional requirement is that the husband or father be "within the limits of this Commonwealth"; and an action is properly brought in the county where the father resided originally.
12. A change in the residence of either party does not oust the court of jurisdiction once obtained.
13. A contention by defendant that a bench warrant was improperly issued because of his failure to appear on the date of hearing, since he had received no notice to appear on this date, was Held to be without merit, where it appeared that a prior order had been entered on a temporary basis, and that it was defendant's duty without notice to appear on the date fixed for the continued hearing.
14. A contention by defendant that there was no justification for resentence to the workhouse was Held to be without merit, where the record did not indicate that defendant had acted in good faith or that he had shown any intention of complying with the orders of the court.
15. The fundamental basis for imprisonment in nonsupport cases is punishment for contemptuous disregard of the court's authority.
16. Section 6 of the Insolvency Act of June 4, 1901, P. L. 404 does not apply to imprisonment in nonsupport cases.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Appeal, No. 22, April T., 1955, from decisions of Court of Oyer Terminer and Court of Quarter Sessions of Westmoreland County, Feb. T., 1950, No. 247, in case of Commonwealth of Pennsylvania v. Robert M. Peters. Appeal dismissed.
Nonsupport proceeding. Before LAIRD, P.J.
Order of support entered; defendant committed to county workhouse for failure to comply with order. Defendant appealed.
Robert M. Peters, appellant, in propria persona.
L. Alexander Sculco, District Attorney and John K. Best, Assistant District Attorney, for appellee.
Submitted March 14, 1955.
We are concerned with a nonsupport case which originated on October 10, 1949, when the wife made information before a Justice of Peace in Westmoreland County asking support for herself and a child two years of age. The husband-appellant is presently confined in the Allegheny County Workhouse. His history of the case contains the following statement: "On October 19, 1954, the Defendant filed a petition for his release. On October 27, 1954, this petition also was denied, which caused the Defendant to appeal his case to this Honorable Court". The docket entries fail to disclose the filing of such a petition and it does not appear in the record. What appellant is actually attempting is to attack purported errors in the proceeding extending back to its inception. The last order of the court below which appears in the docket entries was made on January 12, 1954. This appeal was not filed until November 10, 1954, and must therefore be dismissed because it was not taken within forty-five days. Section 4 of the Act of May 19, 1897, P. L. 67, as amended, 12 Pa.C.S.A. § 1136. This statutory provision is mandatory: Commonwealth v. Schneiderman, 162 Pa. Super. 461, 58 A.2d 196, and there is no room for the exercise of discretion on our part: Commonwealth v. Mackley, 175 Pa. Super. 304, 104 A.2d 169, affirmed 380 Pa. 70, 110 A.2d 172.
Even though appellant had filed a petition in the court below on October 19, 1954, a timely appeal from an order made in connection with that petition would not entitle him to review preceding orders from which no appeal was taken. See Commonwealth ex rel. Arbitman v. Arbitman, 161 Pa. Super. 529, 55 A.2d 586. We have nevertheless concluded that we should briefly consider the eight questions which appellant has attempted to raise.
Appellant's first contention is "that he has been denied the equal protection of law". He alleges that one of his arrests occurred on January 22, 1950, a Sunday. The transcript of the Justice of Peace discloses that the arrest in question occurred on January 21, 1950, a Saturday. In any event, an illegal arrest does not affect the validity of the subsequent proceedings: Commonwealth ex rel. DiDio v. Baldi, 176 Pa. Super. 119, 106 A.2d 910. Appellant next alleges that one of the orders of the lower court dated May 29, 1953, was based on section 731 of the Act of June 24, 1939, P. L. 872, 18 Pa.C.S.A. § 4731, whereas he was prosecuted under section 733 of said statute (18 Pa.C.S.A. § 4733). The docket entries show that, on May 29, 1953, appellant was committed to the Allegheny County Workhouse under authority of the Act of May 24, 1917, P. L. 268, 19 P. S. § 1151.
Appellant's second contention is that the period of his detention prior to the original court hearing, on March 13, 1950, was excessive and unreasonable. The hearing occurred during the February Sessions to which the case had been returned. There was no denial of the right to enter bail pending the hearing. The so-called two term rule provided for by section 54 of the Act of March 31, 1860, P. L. 427, 19 P. S. § 781 is clearly inapplicable. See Commonwealth v. Halderman, 299 Pa. 198, 149 A. 476.
Appellant's third contention is that he was denied due process of law because he was brought to trial (March 13, 1950) without the benefit of counsel and without notice of right to counsel. There is no allegation that an ingredient of unfairness operated to appellant's detriment. See Commonwealth ex rel. Perino v. Burke, 175 Pa. Super. 291, 104 A.2d 163. Trial courts are not required to assign counsel in non-capital cases: Commonwealth ex rel. Townsend v. Burke, 361 Pa. 35, 63 A.2d 77.
Appellant's fourth contention is that, because he was actually living with his wife at the time the original proceeding was commenced, he should have been prosecuted under section 731 of the Act of 1939, supra, instead of section 733 of said statute. A husband may be prosecuted under either section although there is no proof of desertion, provided there is neglect to maintain. See Commonwealth v. George, 358 Pa. 118, 56 A.2d 228, in which the two sections are distinguished on other grounds.
Appellant's fifth contention is that "jurisdiction should have been relinquished by Westmoreland County". It appears that appellant's wife was granted a divorce in Allegheny County on November 4, 1953. Appellant alleges that his former wife presently resides with the child in West Virginia. He therefore contends that the support order in Westmoreland County should have been vacated and a new order entered for the support of the child alone, either in Allegheny County, Pennsylvania, or in West Virginia. The action was properly brought in the county where the parties resided originally. The only jurisdictional requirement is that the husband or father be "within the limits of this Commonwealth": Commonwealth ex rel. Jamison v. Jamison, 149 Pa. Super. 504, 27 A.2d 535. And see Commonwealth v. Husinka, 127 Pa. Super. 360, 193 A. 380. A change in the residence of either party does not oust the court of jurisdiction once obtained: Commonwealth ex rel. Milne v. Milne, 149 Pa. Super. 100, 26 A.2d 207.
Appellant's sixth contention is that a bench warrant was improperly issued because of his failure to appear on March 26, 1953, whereas he had received no notice to appear on said date. It is sufficient to point out that a prior order (December 26, 1952) had been entered on a temporary basis, and it was appellant's duty without notice to present himself before the court on the date fixed for the continued hearing.
Appellant's seventh contention is that "there was not any justification for the resentence to the workhouse" on January 12, 1954. Appellant is presently confined because of his failure to comply with the support order. See the Act of May 24, 1917, P. L. 268, supra, 19 P. S. § 1151. The fundamental basis for imprisonment in nonsupport cases is punishment for contemptuous disregard of the court's authority: Commonwealth ex rel. Taylor v. Keenan, 173 Pa. Super. 418, 98 A.2d 460. The record in this case does not indicate that appellant has acted in good faith or that he has shown any intention of complying with the law or the orders of the court.
Appellant's eighth and final contention, as we understand it, is that he is entitled to release under section 6 of the Insolvency Act of June 4, 1901, P. L. 404, 39 P. S. § 13. We have previously held that this statute does not apply to imprisonment in nonsupport cases: Commonwealth ex rel. Taylor v. Keenan, supra, 173 Pa. Super. 418, 98 A.2d 460.
Appeal dismissed.