Commonwealth v. Papariella ( 1982 )

PER CURIAM:

On December 10, 1970, a jury found appellant, James Papariella, guilty of adultery and bastardy. On March 31, 1971, he was sentenced to pay the costs of prosecution, the lying-in-expenses, and child support in the sum of $10.00 per week; said payments to be made through the adult probation office.¹ In a modification agreement entered into by appellant on October 31, 1973, and adopted by the court below on December 19, 1973, appellant agreed to an increase of child support in the sum of $80.00 per month; said payments to be made through the Collections Department, Domestic Relations Division of Butler County.

In early March of 1980, appellant filed a Petition for Relief under the Post Conviction Hearing Act² (P.C.H.A.), alleging that he received ineffective assistance of counsel at his 1970 trial. The lower court denied the petition on the sole ground that appellant was not eligible for relief under the P.C.H.A. because the petition did not aver that appellant was under a sentence of imprisonment, on parole, or on probation. The court noted that it would serve no purpose to permit appellant to amend his petition because, according to the court, the record clearly established that appellant was not on probation or parole when the petition was filed. The P.C.H.A. provides in pertinent part:

§ 1180-3 Eligibility for relief To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under Section 5 and must prove the following:

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(b) That he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or parole or probation.

The lower court’s order must be reversed. Contrary to the lower court’s finding, at the time the Petition was filed appellant was on probation. Although not stated in so many words, clearly the import of the original sentence was to place appellant under the continuing jurisdiction of the court (in effect, on “probation”) so long as support payments remained due and owing. See 42 Pa.C.S.A. §§ 6708, 6710³. Com. ex rel. Wheeler v. Wheeler, 274 Pa.Super. 478, 418 A.2d 506 (1980). In fact, the court’s order of December 19, 1973, continued his bond. The 1973 modification agreement only altered the amount and method of appellant’s payment of child support; his probation was not affected by the agreement. Under the circumstances, then, we are of the opinion that appellant has satisfied the requirements of the Post Conviction Hearing Act and is therefore entitled to a hearing on his petition.

Order reversed and matter remanded.

MONTEMURO, J., files a dissenting opinion. Decision was rendered prior to DiSALLE, J., leaving the bench of the Superior Court.

1 . Appellant’s sentence reads as follows: “AND NOW, March 31, .1971 defendant is sentenced to pay costs of prosecution, pay MAXINE ANDERSON the sum of $136.37 lying-in-expenses and hospital and doctor bills to date and pay mother of child $520 for maintenance and the sum of $10.00 per week hereafter and enter own bond in the sum of $1.00 to comply as the law directs and stands committed until sentence is complied with. Payments to be made through Probation Office. If the child should die, deft, to pay reasonable funeral expenses.”

2 . The Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., as amended by the Act of June 26, 1980, P.L. 265, No. 77, § 2, 19 P.S. § 1180-1 et seq. (Supp. 1981-82).

3 . Section 6710 provides, inter alia:

The court making the order shall at all times maintain jurisdiction of the cause for the purpose of enforcement of the order and for the purpose of increasing, decreasing, modifying or rescinding such order, without limiting the right of a complainant to commence additional proceedings for support in any county wherein the defendant residés or where his property is situated.