3 Pa. Commw. 429 | Pa. Commw. Ct. | 1971
Opinion by
The Commonwealth sued Leroy W. Whitebread in assumpsit. The case was tried by a judge sitting without a jury upon a stipulation of facts. The single issue is whether Section 4 of The Support Law, Act of 1937, June 24, P. L. 2045, 62 P.S. 1974, authorizes judgment against a property owner for the expense of support, maintenance and assistance furnished his wife and children by the State where the property owner has fully complied with an order for support imposed pursuant to Section 733 of The Penal Code, Act of 1939, June 24, P. L. 872, 18 P.S. 4733.
Leroy W. Whitebread, husband of Sandra White-bread and father of her three unemancipated minor children, left his family and failed to provide support. On October 24, 1965, shortly after Whitebread’s departure, the Department of Public Assistance of the Commonwealth commenced providing support for White-bread’s wife and children and continued to do so until June 4, 1969, expending in this cause a total of $2,-511.75. These outlays were for the support of the wife and children until the parties were divorced on Janu
Section 4 of The Support Law is pertinently, as follows: “. . . [T]he real and personal property of any person shall be liable for the expenses of his support, maintenance, assistance and burial, and for the expenses of the support, maintenance, assistance and burial of the spouse and unemancipated minor children of such property owner, incurred by any public body or public agency, if such property was owned during the time such expenses were incurred, or if a right or cause of action existed during the time such expenses were incurred from which the ownership of such property resulted. Any public body or public agency may sue the owner of such property for moneys so expended, and any judgment obtained shall be a lien upon the said real estate of such person, and be collected as other judgments, except as to the real and personal property comprising the home and furnishings of such person, which home shall be subject to the lien of such judgment and shall not be subject to execution on such judgment during the lifetime of the person, surviving spouse or dependent children.” Leroy W. Whitebread and his circumstances fit squarely within this section. He was the owner of property during the period the State incurred expense for the support of his wife and children. However, the court
Section 733 of The Penal Code empowers the court to order a husband or father, “being of sufficient ability”, to pay such sum as the court shall think reasonable and proper for the comfortable support and maintenance of his wife and children. “The purpose of Section 733 of the Act is to secure a reasonable allowance for support . . . but only to the extent that it is consistent with the husband’s property, income and earning capacity. . . . Accordingly, although legally liable for support ... , an order may be entered against a husband only if he has sufficient financial ability to meet it.” Commonwealth ex rel. Beckham v. Beckham, 186 Pa. Sup. 74, 76, 140 A. 2d 471, 472 (1958). As every practitioner in the field knows, the amounts awarded families are seldom adequate for their comfortable support and maintenance and just as seldom leave defendants with income sufficient for their reasonable needs. If the Legislature had intended that such support orders should be conclusive of the obligation of persons liable for support it could have so provided. To the contrary, by Section 4 of The Support Code, it has provided that public bodies may recover their expenses from property of persons liable for support, without exception of persons under support orders. That Section 4 was intended to apply where orders have been made under The Penal Code, (whether pursuant to Section 731
The appellee argues that it is unfair and therefore a denial of due process to subject him to liability for support furnished his family by the Commonwealth because he was not given the opportunity to be heard on the question of how much the Commonwealth should provide. Aside from solid authority to the contrary (see Stoner Estate and Albert Einstein Medical Center v. Forman, cited in footnote 2), logic and arithmetic demonstrate the fallacy of this contention. If the appellee had supported his family, public support would not have been required. The court’s order upon him was in the amount of $60 per month, or $720 per year for three children. During the approximately four years of appellee’s family’s need the State furnished $2,511.75.
The meager case law on the narrow question here involved supports the Commonwealth’s position. Commonwealth v. Allison, 19 Cambria 117 (1959); Department of Public Welfare v. Snyder, 45 D. & C. 2d 531 (Centre County 1968). In the Snyder case, where the facts were not materially different from those here, President Judge Campbell concludes an excellent opinion with the following statement, with which we fully agree: “We see no reason why a father, if he has other assets not included or consumed in meeting a current support order, should have such assets immune from his obligation to repay one who contributes additional sums for his children’s support.”
Because the court below and counsel for Leroy W. Whitebread seem to be under some misapprehension in the matter, we here note that so long as the appellee’s real estate is his home it is not subject to execution on the judgment hereinafter entered.
Judgment reversed and judgment is -here entered in favor of the plaintiff, Commonwealth of Pennsylvania, Department of Public Welfare and against the defendant, Leroy W. Whitebread, in the amount of Twenty-five hundred and eleven dollars and seventy-five cents ($2,511.75).
The difference in purpose between 731 and 733, the former to punish the deserting husband or father and the latter to secure support for dependents, alluded to by the court below as distinguishing Department of Public Welfare v. Snyder, 45 D. & C. 2d 531 (1968), is of no significance. Both sections provide for support orders which in practice are fixed in amount upon identical considerations.
It has been held that an order for support Is not a prerequisite to liability for reimbursement to a public agency. Stoner Estate, 358 Pa. 252, 56 A. 2d 250 (1948) ; Albert Einstein Medical Center v. Forman, 212 Pa. Sup. 450, 243 A. 2d 181 (1968).