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MOORE APPEAL (09/18/70)

decided: September 18, 1970.

MOORE APPEAL


Appeals from orders of Court of Common Pleas, Family Court Division, of Philadelphia, Nos. 39-69-33901, 19-69-80198, 23-69-58151, and 1-69-14563, in the matters of Matthew Jackson, a minor, Timothy Downs, a minor, Kenneth Moore, a minor, Maurice Murray, a minor, and Ellis Croft, a minor.

COUNSEL

Miriam L. Gafni, Assistant Defender, with her Paula S. Gold, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellants.

James D. Crawford, Deputy District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Watkins and Jacobs, JJ., dissent.

Author: Hoffman

[ 217 Pa. Super. Page 207]

Appellants were adjudged delinquent in the Juvenile Court of Philadelphia County, and subsequently placed on probation. In each of their cases, a timely petition for rehearing was filed alleging that errors of law and/or fact were committed and the order of the court was improvidently made. Each petition for a rehearing was denied. The question presented on appeal is whether, pursuant to the Juvenile Court Act, a rehearing is required after an order of probation.

Section 15 of the Juvenile Court Act is concerned with rehearings following adjudications of delinquency. The statute states in pertinent part: "Within twenty-one (21) days after the final order of any judge of the juvenile court, committing or placing any dependent, neglected or delinquent child, such child shall, as a matter of right, by his or her parent or parents or next friend, have the right to present to the court a petition to have his or her case or cases reviewed and reheard, if, in the opinion of such parent . . ., an error of fact or of law, or of both, has been made in such proceedings or final order, or if the said order has been improvidently or inadvertently made. Upon the presentation of such petition, the court shall grant such review and rehearing as a matter of right. . . ." Act of June 2, 1933, P. L. 1433, § 15, 11 P.S. § 257 (emphasis added.). That is, rehearing in a juvenile case is not discretionary following a final order of commitment or placement. In the interests of assuring the most appropriate

[ 217 Pa. Super. Page 208]

    disposition, an adjudicated juvenile is entitled as a matter of right to bring forth any further considerations he may have.

More narrowly expressed, the issue here is whether an order of probation is a final order of commitment or placement. The orders which a hearing judge may make are set out in section 8 of the Act, as amended, and comprehend a wide variety of custodial situations. He may allow the child to remain in the home, or place him under the guidance of a reputable citizen, subject to the supervision of a probation officer; or he may commit the juvenile to a suitable institution, industrial training school, or reformatory. The wording and structure of the Act indicate that the legislature intended no different procedure with regard to each of the listed dispositions. There is no reason why any of the choices of disposition available to the hearing judge is any less a "final order" than the others for the purposes of a section 15 rehearing. All the orders, including probation, constitute some interference with the adjudicated youth's civil liberty.

In addition, section 16 of the Act uses similar language with regard to rehearings. It provides in pertinent part: "If, at any time after the final order of any juvenile court placing or committing any dependent, neglected or delinquent child, a change of circumstances has taken place which, in the opinion of the parent . . ., warrants the revocation or modification of such final order, such child shall . . . have the right to file a petition in such court asking for a revocation or modification of such final order.

" It shall be the duty of such courts or judges to give a full and proper hearing on such petitions." (emphasis added.) An order "placing" a juvenile on probation would obviously be subject, in certain ...


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