Appeal from the Order of the Court of Common Pleas, Juvenile Division, of Blair County, No. 11580-355.
Joseph A. Grappone, Assistant Public Defender, Holidaysburg, for appellant.
James H. English, Assistant District Attorney, Holidaysburg, for appellee.
Wieand, Johnson and Montgomery, JJ.
[ 344 Pa. Super. Page 32]
Appellant Thomas G. Vaglica appeals his adjudication of delinquency on a charge of violating 18 Pa.C.S. § 2905. We reverse.
On August 5, 1981, appellant's mother Rosa Barr was arrested. Appellant was playing basketball nearby and the officer stopped and picked up appellant before proceeding to City Hall. Mrs. Barr also had her two infant children with her. An adult friend of the family met them at City Hall. At the time, appellant was 17 years 8 months of age. Children and Youth Services learned of the situation, telephoned a judge and obtained an oral order for custody of the two infants. When the caseworker attempted to take
[ 344 Pa. Super. Page 33]
physical custody of the children, appellant refused to relinquish them. Police officers were summoned for assistance and appellant was charged with interference with the custody of committed persons.
Appellant argues that the evidence does not support the adjudication of delinquency under these circumstances. We agree.
The offense of interfering with the custody of committed persons is committed if a person "knowingly or recklessly takes or entices any committed person away from lawful custody when he is not privileged to do so." 18 Pa.C.S. § 2905. In the instant case, appellant was told that someone had telephoned a judge who had verbally granted custody to Children and Youth Services. He was not shown any court order because no written order existed until the following day. In similar circumstances, this court has held that an attorney cannot be held in contempt for advising a client to disregard an oral order (made outside the presence of the client) since such an order "has no force or effect." In re Tumpson, 236 Pa. Super. 568, 345 A.2d 774 (1975). Therein we applied the principle stated in In re Garis, 185 Pa. 497, 39 A. 1110 (1898):
Appellant was adjudicated delinquent on essentially the same evidence as was held to be insufficient to support an adjudication of contempt in In re Tumpson, supra. If a duly recorded order is required to support an adjudication of contempt, we think nothing less ...