Appeal, No. 206, Oct. T., 1961, from order of Court of Common Pleas of Montgomery County, No. 61-1283, in case of Commonwealth to use of Sylvia Messer v. Carl Mickelson. Order affirmed.
George Gershenfeld, for appellant.
Thomas M. Garrity, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 196 Pa. Super. Page 465]
Defendant failed to keep up payments on an order for the support of his children entered against him in the Quarter Sessions Court of Montgomery County. On February 10, 1961, judgment was entered in the Common Pleas Court of Montgomery County for arrearages in the sum of $6850. The judgment was transferred to Philadelphia County and an attachment execution was issued naming three Philadelphia savings and loan associations as garnishees. The attachment referred to the defendant as "Carl Mickelson, a/k/a John C. Perry". There were accounts in each of the three associations in the name of John C. Perry. However, since this name did not appear in the caption of the case and was not the name of the defendant in the judgment, and no proof of identity was submitted to him, the Sheriff of Philadelphia refused to serve the attachment.
On the next day, at a hearing in Montgomery County, the defendant was asked upon cross-examination whether he used the name John C. Perry as an alias. He admitted that he did, and that this name was used,
[ 196 Pa. Super. Page 466]
among other things, to establish the savings accounts mentioned above. Immediately after the hearing he went to Philadelphia and removed his accounts from the three savings and loan associations, only minutes before the Sheriff of Philadelphia served the writ of attachment execution upon them. He withdrew the entire balance from each account, sums totaling $6,811.93.
Four days later the use-plaintiff's attorney filed a rule under Pa. R.C.P. 3118 requesting that the defendant be directed to deliver the funds so withdrawn to the Sheriff of Montgomery County for execution. Upon a hearing on this rule the defendant admitted that the money had been deposited under an alias to avoid attachment by the plaintiff or others. He testified that he had disbursed the money to various creditors of his business corporation. When asked whether he could establish to whom it was disbursed and when, the defendant replied in the affirmative. However, he admitted that he had no evidence in court to corroborate his testimony that the most substantial payment, $6500, had been made to a certain advertising agency, $6500, had been made to a certain advertising agency. made to creditors prior to the service upon him of the petition and rule to turn over the funds. The court directed him to turn the withdrawn funds over to the sheriff within twenty days or suffer the penalties of contempt. He failed to comply with this order, was arrested and placed in custody, and is now at liberty pending the outcome of this appeal.
The turnover order was made under the provisions of Pa. R.C.P. 3118(a)(5) and (6) which read:
"(a) On petition of the plaintiff, after notice and hearing, the court in which a judgment has been entered may, before or after the issuance of a writ of execution, ...