Commonwealth ex rel. Horwitz v. Horwitz , 1922 Pa. Super. LEXIS 122 ( 1922 )

Opinion by

Trexler, J.,

An order was made against the defendant directing payment of twenty dollars per month for the support of his grandchild. Subsequently, upon petition, this amount was increased to ninety dollars.

The appellant contends that the court had no authority to make an order for more than twenty dollars. The Act of June 13, 1836, P. L. 547, section 28, provides that the grandfather, among others, of every poor person not able to work, shall, if of sufficient ability, relieve and maintain such poor person at such rate as the court of quarter sessions shall direct on pain of forfeiting a sum, not exceeding twenty dollars for every month they shall fail therein, which shall be levied by process of said court and applied to the relief and maintenance of such poor person. It is argued that although the sum of twenty dollars is fixed merely as a penalty, it inferentially limits the amount the court can order. The language of the section would strongly support that reasoning. In Wertz against Blair Co., 66 Pa. 18, it is stated that the jurisdiction of the court is limited to twenty dollars. The Act of the 6th of April, 1905, P. L. 112, reenacts the above section of the Act of 1836 but changes the subjects liable to support in that it adds husbands and wives, grandparents and grandchildren. The Act of June 15,1911, P. L. 973, provides “a method for enforcing the orders of maintenance and support, in all cases where an order has been made for husband, wife, parent, child, grandparent, or grandchild, defining what constitutes contempt in such cases, and punishment for contempt in such cases.” The language of this act is general, covering “all cases” and specifically repeals all inconsistent statutes. The Act of 1836 merely limits the penalty for noncompliance, the Act of 1911 supplies a more effectual remedy by attachment and imprisonment for contempt. The remedy seems to be exclusive and the forfeiture of money provided by the Act of 1836 is done away with. With it necessarily goes the inferential limitation upon the amount the court may order. The reason for the conclusion that under the Act of 1836 the order of court is limited to an amount not larger than the forfeiture, is obvious. It would be vain for the court to direct the payment of a larger sum than it could compel the defendant to pay. When, however, the court under subsequent legislation has means of enforcing its order other than the forfeiture clause, it would seem that the reason for applying the rule limiting the amount of the order, falls. Enforcement of the order by attachment being without limitation, the limitation put upon the court by the Act of 1836 must be regarded as inconsistent and no longer in force.

There was evidence that the grandfather was of sufficient ability to pay. Were it not for the peculiar circumstances of the case, we would probably be compelled to say that ninety dollars is too large an amount but the child is in a very delicate condition, having ataxia and being unable to walk or talk and treatment for a year or more in some institution, it was stated, will probably restore it to health. We think the lower court adopted the right course. No doubt if the child recovers its health, so as to no longer require constant care, the amount will be reduced.

All the assignments of error are overruled and judgment is affirmed.