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COMMONWEALTH EX REL. MILLER v. EBBERT. (11/12/57)

November 12, 1957

COMMONWEALTH EX REL. MILLER, APPELLANT,
v.
EBBERT.



Appeals, Nos. 224 and 225, Oct. T., 1955, from orders of Court of Quarter Sessions of Carbon County, Oct. T., 1954, Nos. 11 and 12, in case of Commonwealth of Pennsylvania ex rel. Grace E. Miller v. Jack Ebbert. Orders reversed.

COUNSEL

Joseph H. Foster, with him Martin H. Philip, for appellant.

William H. Bayer, for appellee.

Leon Ehrlich, Deputy Attorney General, with him Joseph Cohen, Deputy Attorney General, and Thomas D. McBride, Attorney General, for Commonwealth of Pennsylvania, amicus curiae.

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

Author: Hirt

[ 184 Pa. Super. Page 580]

OPINION BY HIRT, J.

On July 8, 1954, the defendant entered a plea of guilty to the charges of fornication and bastardy. The child, a boy, had been born to Grace Miller, the prosecutrix, on July 7, 1952. On October 22, 1954, he pleaded guilty to a second charge of fornication and bastardy on the complaint of the same Grace Miller, following the birth to her of another male child on August 23, 1954. In each instance the court sentenced the defendant (under the Act of June 24, 1939, P.L. 872, as last amended by the Act of September 28, 1951, P.L. 1543, 18 PS ยง 4506) to pay a fine of $5, and $50 for lying-in expense incident to the birth of the child. In addition the court, at the same time and on each conviction, ordered the defendant to pay $2 per week

[ 184 Pa. Super. Page 581]

    for the future support of the child until it attains the age of sixteen years. The sentences and both support orders have been literally complied with by the defendant according to their terms.

The 1951 amendment, supra, contains this provision: "After a hearing on the petition of any interested party, such order for the maintenance of such child may be increased or decreased from time to time by said court before or after the expiration of the term at which such man was sentenced." On the authority of that section of the amendment Grace Miller on February 14, 1955 petitioned the court to increase each of the orders to an amount sufficient to provide for the support of the child. After hearing, the rules granted on both petitions were discharged by the lower court on March 17, 1955. These appeals are from that order.

The support order in the one case was entered on July 8, 1954. In the second case the order was made on October 22, 1954. The fact however that the prosecutrix did not appeal from either of the orders is no bar to the present proceeding, questioning their amount. In only a rare instance would the mother in a bastardy proceeding be in position to appeal from the order for the support of her child. And one of the purposes of the 1951 amendment was to obviate the necessity for appeal, under circumstances such as are here present. Counsel have admitted that the orders for support in each of these cases was made in the trivial and manifestly inadequate amount of $2 per week as a matter of routine in accordance with the fixed practice in Carbon County in such proceedings. ...


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