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COMMONWEALTH PENNSYLVANIA v. JOHN P. JOYCE (08/18/89)

decided: August 18, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, PLAINTIFF,
v.
JOHN P. JOYCE, IN HIS OFFICIAL CAPACITY AS PROTHONOTARY OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA, DEFENDANT



ACTION FOR DECLARATORY JUDGMENT (WITH NOTICE TO PLEAD).

COUNSEL

Jason W. Manne, Assistant Counsel Pittsburgh, for plaintiff.

James R. Fitzgerald, Pittsburgh, for defendant.

Barry, McGinley, JJ., and Narick, Senior Judge. McGinley, Judge, dissenting.

Author: Narick

[ 128 Pa. Commw. Page 343]

John P. Joyce, Prothonotary of Allegheny County (Prothonotary), has filed preliminary objections to the petition for review seeking a declaratory judgment filed in our original jurisdiction by the Department of Public Welfare (DPW).

DPW filed its petition for declaratory judgment, asking this Court to decide whether the Prothonotary can demand payment of fees in advance of support actions. The Prothonotary's preliminary objections are in the nature of a demurrer.

A preliminary objection in the nature of a demurrer admits as true every fact which is well pled and all inferences reasonably deducible therefrom. Monti v. City of Pittsburgh, 26 Pa. Commonwealth Ct. 490, 364 A.2d 764 (1976). In ruling upon a preliminary objection in the nature of a demurrer, our role is to determine whether the facts pled are legally sufficient to permit the action to continue. Curtis v. Cleland, 122 Pa. Commonwealth Ct. 328, 552 A.2d 316 (1988); Cooley v. East Norriton Township, 78 Pa. Commonwealth Ct. 11, 466 A.2d 765 (1983). In order to sustain such a preliminary objection, it must appear with certainty upon the facts pled that the law will not permit recovery. Monti. Where any doubt exists as to whether the preliminary objection should be sustained, that doubt should be resolved by a refusal to sustain it. Id.

With the foregoing in mind, the facts as stated by DPW in its petition for review may be summarized as follows. DPW is the assignee of numerous child and spousal support orders in cases filed in the Allegheny County Court of

[ 128 Pa. Commw. Page 344]

Common Pleas. That court has, on numerous occasions, directed that judgment be entered in favor of DPW for support arrearages which had been assigned to DPW. In such cases, the Prothonotary's practice is to index the judgment on the docket and send a $15.00 bill to DPW. On numerous other occasions, DPW has sought to have judgment entered on praecipe for support arrearages, in which cases the Prothonotary has required the advance payment of $15.00 prior to entering the judgment. In those cases in which DPW has sought to obtain a writ of execution, the Prothonotary has required advance payment of the sum of $21.50 before issuing the writ. DPW has not paid the bills sent to it by the Prothonotary and disputes that it is required to pay any fees in support cases, or, alternatively, that such fees are not due until the judgment is satisfied.

In its brief in support of preliminary objections, the Prothonotary argues that there is no support for DPW's contention that the Prothonotary's office may not assess fees in advance. The Prothonotary relies primarily upon both Section 2 of the Second Class County Prothonotary Fee Act (Act), Act of April 8, 1982, P.L. 303, 42 P.S. § 21042 (which lists the schedule of fees prothonotaries in counties of the second class are entitled to collect) and Pa.R.C.P. No. (Rule) 1910.4 (which provides that for the commencement of support actions, "no filing fee shall be required in advance.") The Prothonotary argues that, while it may not require advance payment of fees to commence such an action, Section 2 of the Act, 42 P.S. § 21042, governs for later filings as the action proceeds.

DPW counters that this action is governed by 23 Pa.C.S. §§ 4515 and 4351. 23 Pa.C.S. § 4515 governs the payment of fees and costs in actions brought under the Revised Uniform Reciprocal Enforcement of Support Act (1968) ...


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