decided: June 29, 1979.
COMMONWEALTH OF PENNSYLVANIA, COUNTY OF LANCASTER, APPELLANT,
DENNIS ROBERT ROSSER, JR.
No. 2019 October Term 1978, Appeal from the Order of the Court of Common Pleas of Lancaster County, Criminal Section, No. 71 June Term 1968 and No. 1025 of 1970.
Stephen M. Kraybill, Lancaster, for appellant.
Thomas E. Harting, Lancaster, for appellee.
Price, Spaeth and Lipez, JJ.
[ 268 Pa. Super. Page 118]
This is an appeal from an order discharging a rule to show cause why appellee should not be held in contempt for failure to pay fines and costs.
The fines and costs were imposed because of two drug offenses.*fn1 On October 24, 1969, appellant was sentenced to 3 months to 2 years in prison, and ordered to pay a fine of $200 and costs of $145.20. On January 13, 1971, appellant was sentenced to 6 to 12 months in prison, and ordered to pay a fine of $25 and costs of $79.50. Appellee served time in prison on both sentences, and was paroled, and parole on both sentences has expired. He did not, however, pay any amount on the fines and costs.
On January 3, 1978, the county petitioned for a rule to show cause why appellee should not be held in contempt for failure to pay the fines and costs. Appellee's financial records were subpoenaed. At a hearing on January 30, 1978, before any evidence of the willfulness of the nonpayment was presented, appellee moved to quash the subpoena, objected to the demand that he testify as on cross-examination, and objected to the propriety of the contempt proceedings
[ 268 Pa. Super. Page 119]
in general. The hearing went no further. On June 15, 1978, the lower court discharged the rule. This appeal followed.
In its opinion, the lower court regarded the payment of the fines and costs as a condition of appellant's parole, and held that the county, in waiting until more than nine years after imposition of the first sentence, and more than six years after the second,*fn2 had violated the requirement that enforcement of parole violations occur with reasonable promptness.*fn3 See generally, Commonwealth v. Waters, 252 Pa. Super. 357, 381 A.2d 957 (1977); Pa.R.Crim.P. 1409. We note that at the hearing the director of the county bureau of collections testified that appellee had been sent a letter on June 7, 1977, and that telephone calls had been made, at unspecified times. N.T. 6-7. However, assuming, without deciding, that the county should have acted more promptly, we nevertheless find the lower court's analysis in error.
In Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942), the Supreme Court, in upholding the constitutionality of the newly passed Parole Act, Act of Aug. 6, 1941, P.L. 861, §§ 1-34, 61 P.S. §§ 331.1-331.34, took the occasion to examine the relationship between parole procedures and procedures to enforce the payment of fines:
Much attention was devoted by the court below to the possible effect of the act on cases where fines or costs of prosecution are imposed as part of the sentence. But the law in regard to fines and costs is not affected by the act . . . . The Board of Parole is given no authority concerning the payment of fines and costs, although, of course, it may, if it so desire, make such payment a condition precedent to the granting or the continuance of a parole . . . Paroles, as heretofore granted . . . have never been regarded as interfering with the enforcement
[ 268 Pa. Super. Page 120]
of the payment of fines, and the power to parole has uniformly been exercised without relation thereto. If the parolee does not liquidate the fine or costs which have been imposed upon him, he is still subject, just as before the passage of the present act, to all existing laws for the enforcement of that portion of his penalty . . . . Id., 345 Pa. at 598-90, 28 A.2d, at 901.
Thus it may be seen that the payment of the fines and costs might have been made a specific condition of appellee's parole, see also Commonwealth v. Walton, 483 Pa. 588, 397 A.2d 1179 (1979); that appellee's parole might have been revoked, after proper procedures, on the ground that he had not paid the fines and costs; and that upon such revocation, appellee might have been sent back to serve the rest of his prison term. Commonwealth v. Holm, 233 Pa. Super. 281, 335 A.2d 713 (1975). For this to occur, the Commonwealth would have been required to act with reasonable promptness, and would have had to prove that appellee's parole was no longer serving his rehabilitative needs and was insufficient to deter future antisocial conduct. Commonwealth v. Kates, 452 Pa. 102, 115, 305 A.2d 701, 708 (1973). Here, however, the county was seeking only to collect money. Its interest in appellee went to further; had he had been adjudged in contempt, appellee would have been released as soon as he paid the money.*fn4 The issues, therefore, were only nonpayment, the willfulness of the nonpayment, and the ability to pay. Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973). Since the county was not
[ 268 Pa. Super. Page 121]
seeking revocation of parole, the interest in speedy disposition manifested by Rule 1409 was not present. Indeed, on its face Rule 1409 does not apply ("the judge shall not revoke such probation or parole. . . unless there has been a hearing held as speedily as possible . . . ." (emphasis supplied)).
The question therefore becomes whether the county went about seeking to collect the fines and costs in the correct way. Appellee argues that the county could have filed suit in assumpsit, and obtained a judgment and executed it, and therefore that it should not have proceeded via rule to have him held in contempt.*fn5 However, Pa.R.Crim.P. 1407, which sets out the procedure by which a defendant may be sent to prison for failure to pay a fine or costs,*fn6 is followed by this Comment:
[ 268 Pa. Super. Page 122]
Nothing in this Rule is intended to abridge any rights the Commonwealth may have in a civil proceeding to collect a fine or costs.
From this we conclude*fn7 that as to the two possible remedies -- contempt and a civil proceeding -- there is no indication that the county was obliged to give preference to one or the other.*fn8 The method chosen by the county here to enforce appellee's sentence was civil contempt, for the dominant purpose was prospectively to coerce appellee as the contemnor to comply with an order of the court, not to punish him for disobedience of the order. In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975); In re B., 247 Pa. Super. 395, 372 A.2d 884 (1977).*fn9 This was a suitable procedure; the procedure for enforcing court-ordered payments for child or spouse support is the same. See Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Civil Procedural Support Law, Act of July 13, 1953, P.L. 431, § 1 et seq., 62 P.S. § 2043.31 et seq.*fn10
The order of the lower court discharging the rule to show cause is reversed, and the case is remanded for further proceedings consistent with this opinion.*fn11