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SCHWINGER APPEAL. (07/17/56)

July 17, 1956

SCHWINGER APPEAL.


Appeals, Nos. 78 and 79, Oct. T., 1956, from judgments of Municipal Court of Philadelphia County, June T., 1951, No. 165810 and Sept. T., 1955, No. 1487, Habeas Corpus No. 8733 and Juvenile Division No. 133180, in case of Commonwealth ex rel. Dorothy Esterline v. William Esterline. Judgments reversed.

COUNSEL

Charles M. Solomon, with him Fox, Rothschild, O'Brien & Frankel, for appellants.

Francis A. Biunno, Assistant District Attorney, with him Christopher F. Edley and Lisa Aversa, Assistant District Attorneys, James N. Lafferty, Deputy District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Gunther

[ 181 Pa. Super. Page 534]

OPINION BY GUNTHER, J.

Appellants, Herbert S. Schwinger and Rose Schwinger appeal from a judgment for contempt of court for refusing to answer certain questions propounded to them in the court below.

The matter in controversy arose in custody proceedings involving the custody of three children belonging to Dorothy Edwards, William Esterline and Francis Hartnett. Dorothy Edwards married William Esterline in 1948 but in 1953 he divorced her. Subsequently, in 1954, Dorothy Edwards married Francis Hartnett. Two children, James and Edna, were born of the first marriage, and the third child, Mary, although born during the Esterline marriage, was actually the child of Francis Hartnett.

On April 3, 1955, Albert D. Gershenson and wife obtained custody of Edna. Thereafter, with permission of the mother, Herbert S. Schwinger and his wife, Rose, obtained custody of Mary. The third child, James, was placed in custody of his maternal grandparents, Mr. and Mrs. James Edwards. Thereafter, the mother requested the return of Edna and Mary; the appellants

[ 181 Pa. Super. Page 535]

    returned Mary, but the Gershensons filed a petition for a writ of habeas corpus to retain custody of Edna. A similar petition was filed by William Esterline against the mother for custody of James. The Municipal Court Supervisor of the Juvenile Division, apparently at the behest of the appellants, then filed a dependency petition against the mother to test the fitness of the mother to retain custody of Mary. Appellants were named as witnesses in this petition.

The hearing of the two habeas corpus petitions and the dependency petition were directed by the court to be heard together. On October 7, 1955, at the close of the first day of testimony, the court entered temporary orders placing James Esterline with his father, Edna with the Gershensons and Mary was committed to the Catholic Children's Bureau. After the second day's hearing, the court entered another order stating that "Mary to remain committed to Catholic Children's Bureau and transferred to Private Placement." For this hearing, appellants retained counsel and participated in the proceedings only as witnesses. However, the case in which appellants were interested having terminated, they were no longer concerned with the other phases of the case. On October 19, 1955, before the third hearing commenced, counsel for appellants asked for permission to withdraw from the proceedings stating: "Whatever their (appellants) status is ..., I should like leave of your Honor to have them withdraw from these proceedings." The trial judge replied: "I will grant you that motion, with the understanding that they testify here before they leave."

At the previous hearing there was some testimony of money being offered by someone for the custody of the children or approval of adoption. A deputy sheriff assigned to the Municipal Court allegedly participated in ...


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