Commonwealth v. Feingold
360 A.2d 692
Pa. Super. Ct.
1976
Check Treatment

*1 against danger is known that guest or business visitor who enters and that a business visitor obvious and knowledge of the with upon another’s land full remains thereon, by activity assumes injury created risk may risk and not recover. years recent Appellate of this state have over courts concept compulsory non- narrowing the historic been concept today recognized I that the suits. Until had hopes its ultimate critical list but had held on the recovery. today’s hope, I With decision abandon lingers although procedural on in our rules the name reports, I it will soon fade to a dim in our feel days by. memory gone of better Quite obviously entry would affirm the compulsory non-suit the lower court.

JACOBS,J., dissenting joins opinion. in this Appellant. Feingold, v.

Commonwealth Feingold, Appellant, rel. ex Commonwealth Feingold. Watkins, 11, 1975. P. Before Argued September Voort, Cercone, Price, Jacobs, Hoffman, Van der Spaeth, JJ. Tredinnick, Nonsupport. Before J. $25.00, per week,

Order entered amount of $10.00, week, per relatrix wife and for one Defendant, husband, child. appealed.

Nonsupport. Tredinnick, Before J.

Order dismissing petition entered for of Relator, father, child. appealed. Feingold, appellant, propria persona,

Leonard Nos. 1092 and 1093. Farber,

Sheldon W. appellee for at Nos. 1092 and Opinion per curiam, April 1976: Orders affirmed.

Watkins, P.J., Voort, Cercone JJ., and Van der would affirm on Tredinnick, court below.

Concurring Dissenting Opinion by Spaeth, and J.: agree I the order of the lower court should be affirmed,1 but not on the lower opinion. Montg. court’s Co. L.R. 231 appellant support payments 1. Because has made no in com-

pliance I December, 1973, with the orders of the lower court since quash appeal. appropriate would have voted to That is the order appellant’s “flagrantly where an conduct defiant of the order of Goodwin, 551, 555, court.” Commonwealth ex rel. Goodwin v. Beemer, 198 A.2d Commonwealth ex rel. Beemer v. However, arguing 188 A.2d 475 since us, appellant 29, 1976, own case before has retained On counsel. March petition supersedeas. hearing petition, counsel filed a for At the on me, appellant, appellant himself, which was before counsel for represented willing post protect was bond appellee’s rights petition under the lower court’s order. The granted $7,500 posted. on condition that cash certified check was 9, 1976, April this, appropriate On this was done. Because of I think appeal to consider the on its merits. Appellant unconstitutional would have us declare non-support provision of the the desertion 872, §733, 24, 1939, Code, P.L. Penal Act of June former amended, §4733, provision in 18 P.S. its successor Code, P.L. No. the Crimes Act Dec. that to §1, It is contention 18 Pa.C.S. §4322.2 - - criminally only a his wife make husband also based responsible non-support is a discrimination on Rights Equality Amendment sex in violation Constitution,3 Pennsylvania Equal and the Protection Amendment. I do not think Clause of Fourteenth properly us. contention before appellee’s action is that premise The contention Penal Code. support was initiated under consistently position, However, taken the appellee has *3 petitions appellant’s numerous in to both her answers court, petition for that her to this below and her brief the Civil was filed under support and maintenance 1937, Law, 24, P.L. Support June Procedural Act May 10, amended, 2045, §3, §1973, Act of P.S. and as amended, §1973, Act 1951, 279, §3, and 62 P.S. P.L. as 279, Brief for May 10, 1951, §3, P.S. P.L. §2043.3. 2, support appellee’s to tends Appellee at 9. The record petitioned support, appellee was in the Penal Code 2. When husband, any separates provides: ... himself from It “If or father effect. children, children, his or from wife without his wife from and or children, (1) cause, neglects or to his wife or maintain reasonable may setting relating petition the to file a ... forth facts or children wife children, neglect separation or or to maintain his wife or from summary may court, hearing proceeding, order .... The said after in a filed, against complaint petition person whom has been made or ability, being pay shall think such sum said court sufficient proper and for the comfortable maintenance reasonable Code, children, supra, §733, wife or Penal the said both....” The P.S. §4733. I, Const., May 18, 1971). (adopted Art. §28 3. Pa. Moreover, plaintiff assertions. it is the who controls the brought. form of generally, 1019, the action See Pa.R.C.P. 1020, Appendix. 12 P.S. plaintiff specify Nor need a complaint particular statute under which recovery being sought. Oesterling Schwab v. P.J. & Son, Inc., Pa. 126 A.2d 418 Sheffit Koff, Superior Ct. 100 A.2d 393

In its the lower court does not refer appellee’s position petition that her is not under Penal Code but Support under Civil Procedural Law. Instead “totally the court states it is unclear whether support proceedings against [appellant] in- were itiated under the criminal act cited above Penal [the Code], Act or the Opinion June 1937 ....” at The court then states:

“The Court inclined to believe the latter Nevertheless, utilized. present will we assume purposes, that the criminal act is Id. involved ....” proceeds The court then to consider con- argument, stitutional concludes that “has been clearly definitely against appellant. Opinion decided” reaching conclusion, 5. In particularly the court upon Lukens, relies Commonwealth ex rel. Lukens v. 303 A.2d 522 my judgment, it was error for the lower court thus majority to reach to decide the constitutional The issue. compounds now the error. It is axiomatic that a court pass upon constitutionality should of a statute compelled unless so particular the facts do T.V.A., (1936) case. Ashwander v. 297 U.S. *4 concurring). us, On the record before the (Brandéis, proceeding; case should be treated as a civil the constitutionality support is the criminal law called question. into

Even if it be that the is assumed constitutional issue properly us, it, by before still we should not either decide opinion approving the In of the lower court or otherwise. place, presented appellant the first filed brief and 266 persona. argument propria we have been

oral Thus presentation the deprived of the benefit of reasoned always us; give presentation is could such a counsel critically of a important so the review but is ap- place, the in an issue. In second constitutional (which not), explicitly propriate this we should case view, decisions, my such In reassess Lukens. more recent Dana, Conway (1974) as A.2d 324 v. deprive Lukens of force.4 Stanton v. much its See also Stanton, Weinberger Weisenfeld, (1975); v. U.S. 7 Richardson, v. U.S. 636 Frontiero U.S. 677 Reed, (1973); Reed v. U.S.

II agree, however, support that the order formulated by parties be to and should the lower court fair the affirmed. The court found that circumstances changed parties had since the order of June specifically, appellee had been that since October March, 1975, gainfully earning employed, and as of justified $11,308. change a The court concluded that appellant’s obligations, and it substantial reduction appellant pay per to week ordered rather than $35 $120 support daughter ($25 the for the of his wife wife child). The court also reduced and $10 outstanding arrearages chargeable over $6,000, support of appellant’s petition for and dismissed carefully his minor In its has son. court explained its actions: Dana, Conway Supreme “We hold that 4. our Court said: father, solely suggest presumption as insofar these decisions regard circumstances of his and without actual because sex parties, accept principal burden of financial must every children, they may Support, longer followed .... minor no be duty responsibility encompassed parenthood, is the other in the role of discharge required Both of both mother and father. must be 539-540, ability.” obligation capacity and Id. at in accordance with their A.2d

267 [party] permanent custody “Each has of one child .... separate Court concludes that costs [T]he of maintaining separate the two children in households equal, either is in present purposes, fact or for should consider, then, be so considered. We party that each fulfilling is obligation one-half support the total the two children .... is clear that defendant [I]t [appellant] greater has a income than relatrix fact, [appellee]. In he earns 57% of the combined parties. income of postulated Since we have party bearing each one-half the total child support, adjustment a 7% factor favor of relatrix appears logical.” Opinion to be at 11.5 — I find no disposition abuse of discretion in this certainly there is no requires such abuse as us to reverse. See, e.g., Voltz, ex Commonwealth rel. Voltz v. 168 Pa. 51, Superior Ct. appears A.2d It gave appellant’s me that the lower court claims careful consideration, despite appellant’s confusing and dis- organized presentation. agree

I therefore that we should affirm the lower court’s order.

Hoffman, joins opinion. in this Dissenting Opinion by Price, J.: The record in this case shows that has made payments compliance no with orders December, Therefore, the lower court since 1973. “a since study of the record of the case at bar indicates that appellant’s,conduct flagrantly defiant of the order of court,” quash 'I appeal reaching would his without its merits. Goodwin, Commonwealth ex rel. Goodwin v. gross employ- income his from salaried $16,585.20. findings ment was The lower court did not make new Opinion fact establish current income. at 9. ex A.2d Commonwealth Beemer, Beemer v. 188 A.2d

rel. *6 Clouser, Shamokin Appellant,

Packing Company et al.