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LITZELMAN APPEAL (03/24/66)

decided: March 24, 1966.

LITZELMAN APPEAL


Appeals from orders of Court of Common Pleas of Lycoming County, May T., 1965, Nos. 786 and 1082, in re petitions for discharge of Darcy D. Litzelman and Howard E. Litzelman.

COUNSEL

Anthony D. Miele, with him Patrick H. Fierro, and Fierro & Miele, for appellants.

Henry G. Hager, 3rd, District Attorney, for Commonwealth, appellant.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J. Concurring Opinion by Ervin, P. J.

Author: Jacobs

[ 207 Pa. Super. Page 376]

The principal question raised in these appeals is whether or not the insolvency law of 1901 applies to violators of The Game Law who are imprisoned for failure to pay fines and costs.

On December 21, 1964, Darcy D. Litzelman was found guilty of violating The Game Law of the Commonwealth, Act of June 3, 1937, P. L. 1225, as amended, 34 P.S. § 1311.1 et seq., by Lycoming County Justice of the Peace Dean E. Dawes. He was sentenced to pay a fine and costs totaling $309. On January 5, 1965, he was found guilty of another violation of The Game Law by the same justice of the peace and was sentenced to pay a fine and costs of $527 and to forfeit an automobile and certain hunting equipment to the Pennsylvania Game Commission. On March 20, 1965, being unable to pay the two fines and costs, Darcy was sentenced by Squire Dawes and committed to Lycoming County Prison to serve one day in jail for each dollar of the fine and costs, pursuant to Section 731 of The Game Law, 34 P.S. § 1311.731, 836 days.

On May 6, 1965, while incarcerated in the Lycoming County Prison, Darcy plead guilty to another violation of The Game Law before the same justice of the peace and was sentenced to pay a fine and costs of $906. Unable to pay this fine and costs, Darcy was sentenced by Squire Dawes to serve one day in the same jail for each dollar of the fine and costs, 906 days.

[ 207 Pa. Super. Page 377]

On April 21, 1965, Howard E. Litzelman plead guilty before Lycoming County Justice of the Peace Howard Campbell to a violation of The Game Law and was sentenced to pay a fine and costs of $827. Unable to pay the fine and costs, he was sentenced by Squire Campbell to the Lycoming County Prison for 827 days. On the same date, Howard plead guilty before Squire Dawes to certain other violations of The Game Law and was sentenced to pay a fine and costs of $4,663. Since he was unable to pay this fine and costs, Howard was on the same date sentenced and committed by this justice of the peace to the Lycoming County Prison for 4,663 days.

All of the offenses of which the Litzelmans were convicted are designated as summary offenses by The Game Law and jurisdiction is given to the nearest available justice of the peace. 34 P.S. §§ 1311.1201-1311.1202.

After serving three months in jail, each Litzelman filed a petition with the Common Pleas Court of Lycoming County, asking to be discharged from prison under Section 6 of the Act of June 4, 1901, P. L. 404, 39 P.S. § 13, providing for the release of insolvents, hereinafter called the Insolvency Act. The Common Pleas Court in each case directed that the petitioner be discharged from imprisonment under his first commitment and made the discharge effective as of June 16, 1965 for Darcy and as of July 19, 1965 for Howard. The court also held that neither petitioner could be discharged from his second commitment until three months from discharge on his first commitment (September 16, 1965 for Darcy and October 19, 1965 for Howard) on the ground that the sentences imposed were ...


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