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ANNETTE MURACO v. ROBERT PITULSKI (01/28/77)

decided: January 28, 1977.

ANNETTE MURACO, APPELLEE,
v.
ROBERT PITULSKI, APPELLANT



COUNSEL

Daniel P. McDyer, Pittsburgh, for appellant.

J. Kerrington Lewis, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Manderino, J., joins in this opinion and filed a concurring opinion.

Author: Eagen

[ 470 Pa. Page 270]

OPINION OF THE COURT

This appeal raises essentially the same issues raised in Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977), also decided today. Our decision in Barrett is controlling here.

On April 20, 1975, the Family Division of the Court of Common Pleas of Allegheny County, on the petition of Annette Muraco, issued a Rule to Show Cause why Robert Pitulski, her former husband, should not be held in contempt for willfully violating an order of January 28, 1965, providing for the support of the couple's two minor children at the rate of $25 per week. After an evidentiary hearing on May 13, 1975, the court found Pitulski to be $7,184.00 in arrears on the support order and made

[ 470 Pa. Page 271]

    the Rule to Show Cause absolute. It ordered Pitulski to pay this entire amount on or before July 11, 1975, or serve a period of 120 days in the Allegheny County jail. Pitulski appealed from this order to the Superior Court, but he did not then request a supersedeas. On July 11, another hearing was held after which the court determined that Pitulski had not paid the amount due, found him in contempt of its May 13 order, and ordered him imprisoned for 120 days unless he sooner purged himself by paying the sum of $7,184.00. Petitioner also appealed from this order to the Superior Court. On July 18, the trial court granted his petition for supersedeas and ordered him released from prison on July 21 pending the final determination of his appeal. After granting Pitulski leave to appeal in forma pauperis, the Superior Court, on March 23, 1976, affirmed both orders of the trial court in a per curiam order without opinion. Muraco v. Pitulski, 239 Pa. Super. 705, 356 A.2d 816 (1976). We granted allocatur and continued the writ of supersedeas.

Appellant contends that it was error in a civil contempt proceeding to sentence him to prison for failure to comply with a committing order the conditions of which were beyond his ability to satisfy, and that this commitment in civil contempt was in violation of the Equal Protection Clause of the United States Constitution. We agree with his first contention, and therefore deem it unnecessary to reach his equal protection argument.

As in Barrett v. Barrett, supra, the instant proceedings were clearly civil. They were conducted pursuant to section 9 of the Civil Procedural Support Law, Act of July 13, 1953, P.L. 431, as amended, 62 P.S. § 2043.39, and their dominant purpose was to aid a private litigant rather than to vindicate the authority of the court or to protect the public interest. In recognition of this, the court imposed a conditional sentence of imprisonment to coerce Pitulski into fulfilling his duty of supporting his

[ 470 Pa. Page 272]

    children rather than a strictly punitive sentence which he would be powerless to ...


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