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COMMONWEALTH EX REL. MILLER v. MILLER (ET AL. (11/16/67)

decided: November 16, 1967.

COMMONWEALTH EX REL. MILLER
v.
MILLER (ET AL., APPELLANT)



Appeal from order of Court of Quarter Sessions of Montgomery County, Feb. T., 1966, No. 17, in case of Commonwealth ex rel. Janet Miller v. Morris Miller.

COUNSEL

Herbert K. Fisher, with him Bloom, Ocks and Fisher, for appellant.

E. William Heuser, with him Torak and DeYoung, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J. Wright, J., would affirm on the opinion of Judge Ditter.

Author: Hoffman

[ 211 Pa. Super. Page 200]

Appellee, Janet Miller, had filed a criminal complaint on February 4, 1966, which charged her husband, Morris Miller, appellant herein, with desertion and nonsupport. A hearing was held before a Justice of the Peace on February 5, 1966, and appellant was held in $1000.00 bail for Court. Appellant and his surety, the Allegheny Mutual Insurance Company, executed an appearance bond in the amount of $1000.00 which provided in part: ". . . Morris Jay Miller shall be and appear in Criminal Court for arraignment or trial or when wanted and there answer such charges as may be preferred against him, the said Morris Jay Miller and to abide and not depart said Court without leave, . . ." The bond was labeled "Recognizance for Appearance."

On March 8, 1966, a hearing was held in the office of the chief desertion officer. A temporary support order was entered by agreement of the parties, and appellant executed a $500.00 compliance bond. That bond was labeled "Recognizance to Comply with Order" and provided in part that ". . . Morris Miller shall, will and do comply with the order of court made in above case in all particulars. . . ."

Appellant thereafter appeared before the Honorable Frederick B. Smillie on March 25, 1966, to answer the charges against him. The Court imposed an order requiring that appellant pay support for appellee and their minor child. The Court further ordered appellant to execute a compliance bond in the amount of $500.00.*fn1 Lastly the Court stated that ". . . your bond

[ 211 Pa. Super. Page 201]

    of $1000.00 is continued in that amount for security on the support. . . ."

Appellant, subsequently, defaulted in his support payments. On November 2, 1966, appellee filed a petition requesting that the $1000.00 appearance bond be forfeited and paid to her on the grounds that her husband had made no support payments and had failed to appear for the resulting attachment proceedings. Service of the petition and rule was made upon the District Attorney of Montgomery County and the surety. No answer was filed by either and the rule was made absolute on November 29, 1966. The surety was ordered to pay $1000.00 to appellee.

On January 5, 1967, appellant's surety filed a "petition to reverse," alleging, inter alia, that the bond in question was intended to assure appellant's appearance at the hearings held on March 8 and March 25, 1966, and that it was not a guarantee for the support payments ordered at those hearings. Appellee moved to strike off this petition. On May 29, 1967, an order was entered by the Honorable J. William Ditter, Jr. granting appellee's motion to strike the petition to reverse.*fn2 This appeal followed.

Appellee contends preliminarily that our court lacks jurisdiction to pass on the propriety of the court's order because, ordinarily, in a suit upon a forfeited recognizance bond, ". . . it must be taken for verity that the defendant and his bail were duly called and did not appear or answer," by the court on appeal. Commonwealth v. ...


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