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decided: December 1, 1971.


Appeal from the Order of the Court of Common Pleas of Columbia County in case of Commonwealth of Pennsylvania, Department of Public Welfare v. Leroy Whitebread.


Marx S. Leopold, General Counsel, with him Sidney V. Blecker, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellant.

Gailey C. Keller, with him Smith, Eves and Keller, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers.

Author: Rogers

[ 3 Pa. Commw. Page 430]

The Commonwealth sued Leroy W. Whitebread in assumpsit. The case was tried by a judge sitting without a jury upon a stipulation of facts. The single issue is whether Section 4 of The Support Law, Act of 1937, June 24, P.L. 2045, 62 P.S. 1974, authorizes judgment against a property owner for the expense of support, maintenance and assistance furnished his wife and children by the State where the property owner has fully complied with an order for support imposed pursuant to Section 733 of The Penal Code, Act of 1939, June 24, P.L. 872, 18 P.S. 4733.

Leroy W. Whitebread, husband of Sandra Whitebread and father of her three unemancipated minor children, left his family and failed to provide support. On October 24, 1965, shortly after Whitebread's departure, the Department of Public Assistance of the Commonwealth commenced providing support for Whitebread's wife and children and continued to do so until June 4, 1969, expending in this cause a total of $2,511.75. These outlays were for the support of the wife and children until the parties were divorced on January

[ 3 Pa. Commw. Page 43124]

, 1966 and for the children after that date. On November 15, 1965, the then Court of Quarter Sessions of the 26th Judicial District, Columbia County Branch, on complaint of Sandra Whitebread under Section 733 of The Penal Code ordered Leroy W. Whitebread to pay to Sandra for the support of the children the sum of $60.00 each month commencing on December 1, 1965. He complied with this order. On the date Whitebread left his family, he and his wife owned as tenants by the entireties a parcel of real estate situate in Columbia County. On November 24, 1965 they conveyed this property to Leroy W. Whitebread individually, and he remains the owner. It is worth in excess of $9,000.

Section 4 of The Support Law is pertinently, as follows: ". . . [T]he real and personal property of any person shall be liable for the expenses of his support, maintenance, assistance and burial, and for the expenses of the support, maintenance, assistance and burial of the spouse and unemancipated minor children of such property owner, incurred by any public body or public agency, if such property was owned during the time such expenses were incurred, or if a right or cause of action existed during the time such expenses were incurred from which the ownership of such property resulted. Any public body or public agency may sue the owner of such property for moneys so expended, and any judgment obtained shall be a lien upon the said real estate of such person, and be collected as other judgments, except as to the real and personal property comprising the home and furnishings of such person, which home shall be subject to the lien of such judgment and shall not be subject to execution on such judgment during the lifetime of the person, surviving spouse or dependent children." Leroy W. Whitebread and his circumstances fit squarely within this section. He was the owner of property during the period the State incurred expense for the support of his wife and children. However, the court

[ 3 Pa. Commw. Page 432]

    below entered judgment for the defendant, on the ground that the support order settled Whitebread's entire liability for support for his family. This was error.

Section 733 of The Penal Code empowers the court to order a husband or father, "being of sufficient ability", to pay such sum as the court shall think reasonable and proper for the comfortable support and maintenance of his wife and children. "The purpose of Section 733 of the Act is to secure a reasonable allowance for support . . . but only to the extent that it is consistent with the husband's property, income and earning capacity. . . . Accordingly, although legally liable for support . . . , an order may be entered against a husband only if he has sufficient financial ability to meet it." Commonwealth ex rel. Beckham v. Beckham, 186 Pa. Sup. 74, 76, 140 A.2d 471, 472 (1958). As every practitioner in the field knows, the amounts awarded families are seldom adequate for their comfortable support and maintenance and just as seldom leave defendants with income sufficient for their reasonable needs. If the Legislature had intended that such support orders should be conclusive of the obligation of persons liable for support it could have so provided. To the contrary, by Section 4 of The Support Code, it has provided that public bodies ...

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