Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, July T., 1970, No. 1816, in case of Commonwealth ex rel. Benjamin Brown v. Edward J. Hendrick.
Dennis T. Kelly, Assistant Defender, and Vincent J. Ziccardi, Defender, for relator, appellant.
Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for respondent, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.
[ 220 Pa. Super. Page 226]
This is an appeal from the order of the Court of Common Pleas, Family Division, of Philadelphia County denying Benjamin Brown, the appellant-relator, a hearing on a Petition for a Habeas Corpus.
The appellant was married to the relatrix on April 3, 1967, and they are the parents of two minor children born on April 26, 1968, and June 30, 1969, respectively.
The initial Petition for Support was brought under The Civil Procedural Support Law, 1953, July 13, P. L. 431, 62 P.S. § 2043.31, on June 5, 1970. After hearing, an order of Forty-Two Dollars ($42.00) per month for the support of his wife and two minor children was entered on July 5, 1970.
The first attachment hearing was held on January 18, 1971, and because of his failure to comply with the order, he was committed to the House of Correction for sixty (60) days. The condition of release being the payment of Five Hundred Dollars ($500.00).
At the second attachment hearing on March 15, 1971, the defendant was ordered released and the matter listed for review in sixty (60) days. The third attachment hearing was held on May 4, 1971, at which hearing it was shown that the relatrix and her two children had been receiving Public Assistance of One Hundred and Twenty-Four ($124.00) semi-monthly. The court said: "The record clearly indicates that the defendant has not attempted to make any payments whatsoever, no matter how minimal or how sporadic, to comply with the original order of support entered on July 6, 1970, and such failure on his part appears to be so wilful (sic), deliberate and chronic as to make the conclusion
[ 220 Pa. Super. Page 227]
inescapable that he is in contempt of this court. Furthermore, the record shows no physical infirmity of disability on the part of the defendant which might preclude gainful employment. He appeared to be a young, able-bodied person." He was then ordered to pay Five Hundred Dollars ($500.00) on the support order or serve three (3) months in the House of Correction.
A Petition for a Writ of Habeas Corpus was filed on his behalf which set forth that his detention for nonsupport was a violation of equal protection and due process. The complaint set forth that: he was not represented by counsel at the attachment hearing; that he is not presently employed and at the time of the hearing was employed at a minimal wage; that the failure to pay was not willful but due to indigence and, therefore, not contemptuous; ...