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CANDY KILIANEK (10/06/77)

decided: October 6, 1977.

IN THE INTEREST OF CANDY KILIANEK, APPELLANT


No. 23 April Term 1977, Appeals from the Orders of the Court of Common Pleas of Erie County, Pennsylvania (Juvenile Division) No. 436 of 1974.

COUNSEL

Robin Russel Vandercoy, Erie, for appellant.

Dana Sherwood Jones, Erie, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Cercone, J., files a concurring opinion in which Watkins, President Judge, joins. Van der Voort, J., dissents.

Author: Spaeth

[ 250 Pa. Super. Page 395]

On November 21, 1975, a Petition of Delinquency was filed charging that appellant, Candy Kilianek, had committed the offense of "incorrigibility." The petition listed seven instances between July 29, 1974, and October 24, 1975, when Candy ran away, and also enumerated as specific acts of disobedience the following: failure to attend school on a regular basis; being a disruptive force at Harmony House, at the Children's Service Shelter, and at home; and failure to abide by the reasonable and lawful commands of her parents and custodians.

On January 28, 1976, an evidentiary hearing was begun before a master; the hearing was completed on April 6, 1976. On April 28 Candy was adjudicated a delinquent child

[ 250 Pa. Super. Page 396]

    and ordered placed for an indefinite period in Gannondale School for Girls. On July 29 Candy was removed from Gannondale and placed in Edmund L. Thomas Hall Juvenile Detention Center. On August 23, after a replacement hearing, she was transferred to the Youth Development Center at Waynesburg.

This appeal challenges both the adjudication of delinquency (No. 792 April Term 1976) and the placement order (No. 23 April Term 1977). We reverse the adjudication of delinquency and therefore do not consider the placement order.*fn*

I

The Petition of Delinquency filed on November 21, 1975, was accompanied by allegations of "incorrigibility." We accept the Commonwealth's argument that these allegations gave sufficient notice that Candy was charged with being ungovernable. See In re Garner, 230 Pa. Super. 476, 326 A.2d 581 (1974). Therefore, to be adjudicated delinquent, Candy had to be shown to have committed a delinquent act under subsection (2)(ii) of section 50-102 of the Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333, § 2, 11 P.S. § 50-102 (Supp.1976), which reads in pertinent part:

(2) "Delinquent act" means: . . . (ii) a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian, or other custodian ...


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