Com. ex rel. Wright v. Hendrick
| Decision Date | 04 December 1973 |
| Citation | 312 A.2d 402,455 Pa. 36 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. Fred WRIGHT, a/k/a Fred Gordy, Appellant, v. Edward J. HENDRICK, Superintendent of Philadelphia Prisons. |
| Court | Pennsylvania Supreme Court |
Vincent J. Ziccardi, Defender, Dennis T. Kelly Acting First Asst. Defender, Jonathan Miller, Chief, Appeals Div., Defender Ass'n of Philadelphia, Dennis Kelly Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., B. H. Levintow, Philadelphia, for appellee.
Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
By his own admission Fred Wright, the appellant, is the father of three children born out-of-wedlock to one Beverly Thomas, a resident of Philadelphia. On February 5, 1964, in proceedings instituted under the provisions of the Pennsylvania Civil Procedural Support Law, [1] in the County Court of Philadelphia (now the Family Court Division of the Court of Common Pleas), Wright was ordered to pay $5 weekly towards the support of one of these children. On September 20, 1965, in a separate proceeding under the same statute, he was ordered to pay $5 weekly towards the support of the second of these children. On April 15, 1968, in a third and separate proceeding under the same statute, he was ordered to pay $5 weekly towards the support of the third such child. [2]
On May 28, 1971, Wright was brought before the Family Court Division of the Court of Common Pleas of Philadelphia via a writ of attachment for failure to comply with the aforesaid support orders. After a hearing during which Wright was without counsel, the court found that the total amount accrued under said orders was $4195; that Wright was credited with payments of only $213 since entry of the first order, and, hence, was in arrears in the amount of $3982. The court then entered the following order: '$1000 or six months in the House of Correction.' The one thousand dollars was not paid and Wright was committed.
On July 13, 1971, habeas corpus proceedings were instituted on Wright's behalf contesting the validity of the commitment order. After a counseled evidentiary hearing on August 4th, habeas corpus was denied. An appeal was filed in the Superior Court, and that court on August 12th issued a writ of supersedeas staying the order of commitment pending appeal. [3] Subsequently, the Superior Court unanimously affirmed the trial court's order denying habeas corpus by a 'Per Curiam' order, without an opinion. See 221 Pa.Super. 756, 289 A.2d 176 (1972). We granted allocatur.
Inter alia, it is argued Wright's failure to comply with the support orders was due to indigency, and that imprisoning an indigent for failure to pay a support order violates the Equal Protection Clause of the United States Constitution. In view of the conclusions that follow, it in unnecessary to reach this constitutional issue in this case.
As noted before, the support proceedings, here involved, were instituted and prosecuted under the Act of 1953, supra, 62 P.S. § 2043.39(b), which provides as follows:
(Emphasis added.)
Thus, the act explicitly states that in counties of the first class (Philadelphia is a county of the first class), a Wilful noncompliance of a support order, entered pursuant to the provisions of the Act of 1953, is necessary before there may be a finding of contempt and imposition of a jail sentence.
In the habeas corpus hearing in the trial court, Wright testified: that he was without funds and unable to pay any sum towards the arrearage due on the support orders; that he was in prison from June, 1968 to June 11, 1970, under a sentence imposed following his conviction for an unrelated criminal offense; that he was able and willing to work, but had been continuously unemployed since November, 1970, despite efforts to gain employment; and, that he was currently being supported by his mother. There was no testimony from any source to discredit or disprove this testimony.
Wright's request that he be released from imprisonment to further his attempt to find employment was denied by the court.
While the term 'wilful' is a word of many meanings, depending on the context in which it is used, it seems clear to us that, as used in the statute instantly involved, 'wilful' means an intentional, designed act and one without justifiable excuse. As noted before, the only testimony in the trial court was that Wright was then penniless and unable, through no fault of his own, to pay any sum on the delinquencies. Such a record does not support a finding of wilful noncompliance, required by the Act of 1953. Compare, Commonwealth v. Pewatts, 200 Pa.Super. 22, 186 A.2d 408 (1962).
The trial court reasoned that since Wright was young and in good health, his continued unemployment, coupled with his chronic failure to make contributions towards the support of the children, constituted a wilful disregard of the court's orders. To this, we cannot subscribe. If the record warranted the conclusion that Wright refused to work, and, thus through his own fault was rendered incapable of making payments on the outstanding support orders, this might well constitute a wilful noncompliance under the Act of 1953. However, this is not such a case, and whether criminal sanctions may constitutionally be imposed, under the circumstances, need not be resolved here. The determination of that complex issue must await a proper case.
In view of the foregoing, the remaining assignments of error need not now concern us.
The orders of the Superior Court and the trial court are reversed.
JONES, C.J., did not participate in the consideration or decision of this case.
In a well-reasoned opinion written by Mr. Justice EAGEN, the majority properly concludes that the instant appellant was unjustly confined for contumacious conduct upon a record barren of evidence of willful misbehavior. I am in complete accord with the reasoning and result of the majority opinion but I strongly believe that some comment must be made as to the underlying factor that produced this result.
Mr. Wright appeared before the court below on May 28, 1971, under a writ of attachment pursuant to the Act of July 13, 1953, P.L. 431 § 9; 1957, July 3, P.L. 452, § 1, 62 P.S. § 2043.39. An adjudication of contempt was found under subsection (b) after the following colloquy which represents the Entire record of the proceeding resulting in the questioned confinement:
'BY THE COURT:
Q. You are Fred Wright?
A. Yes, sir.
Q. Also known as Fred Gordy? A. Yes.
Q. Do you live at 1433 North 10 Street?
A. Yes.
Q. You have three children with Beverly Thomas; is that right?
A. Yes, sir.
Q. There's an order of $5.00 for each one of them. The total amount to be paid in is $4,195.00, and you paid in a grand total of $213.00. Your last payment was $20.00 in October 1965. You owe $3,982.33 and you...
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