March 15, 1948.
April 13, 1948.
Appeals — Time — Acts of May 11, 1927, P.L. 972 and May 19, 1897, P.L. 67 — Mandatory provision — Petition for rehearing and review.
1. The Act of May 11, 1927, P.L. 972, amending § 4 of the Act of May 19, 1897, P.L. 67 (which provides no appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions, unless taken within forty-five days) is mandatory.
2. A petition for rehearing and review of an order of the court of quarter sessions directing defendant to pay specified sums for the support of his wife in a desertion and nonsupport case does not take the place of an appeal from the order.
Husband and wife — Support — Modification of order — Circumstances.
3. An order for support can be altered upon petition, if the circumstances, which existed when the application in the first instance was made, have materially and substantially changed.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and FINE, JJ.
Appeal, No. 118, April T., 1948, from decree of Q.S., Westmoreland Co., Nov. T., 1946, No. 76, in case of Commonwealth v. Richard Schneiderman. Appeal quashed.
Desertion and nonsupport proceeding. Before KEENAN, P.J.
Order entered directing defendant to pay stated monthly amount; order entered refusing defendant's petition for rehearing. Defendant appealed.
Joseph Blank, with him S. Frank Laveson, for appellant.
Robert M. Carson, with him John M. O'Connell, District Attorney, for appellee.
Argued March 15, 1948.
Appellant states that this is an appeal from an order of the Court of Quarter Sessions of Westmoreland County of October 25, 1946, directing him to pay the costs of prosecution and the sum of $50 a month for the support of his wife in a desertion and nonsupport case. The appeal was taken to this Court on November 12, 1947. Under the circumstances, the appeal must be quashed. The Act of May 11, 1927, P.L. 972, amending section 4 of the Act of May 19, 1897, P.L. 67, 12 Pa.C.S.A. § 1136, provides: "No appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions . . ., unless taken within forty-five days from the entry of the sentence or order." Such a statutory provision is mandatory. Pittsburgh v. Ruffner, 134 Pa. Super. 192, 197, 4 A.2d 224; Com. v. Montgomery, 152 Pa. Super. 342, 344, 31 A.2d 913.
In addition to the order of the court below, appellant has assigned as error the refusal by that court of his petition for a rehearing and review of the order of the court of October 25, 1946. Appellant's petition for rehearing and review was filed December 5, 1946. On the same day, the court below refused a rehearing. Appellant filed exceptions to the action of the court below in this respect on December 11, 1946. No disposition was made of the exceptions by the court until October 2, 1947. The petition for rehearing and review of the original order of the court did not take the place of an appeal from that order. Com. ex rel. Isaacs v. Isaacs, 124 Pa. Super. 450, 455, 188 A. 551; Rumsey's Case, 135 Pa. Super. 515, 517, 7 A.2d 43; Seem's Estate, 341 Pa. 198, 19 A.2d 60.
An order for support can be altered upon petition, if the circumstances, which existed when the application in the first instance was made, have materially and substantially changed; but such is not the situation presented or averred in appellant's petition. See Com. ex rel. Iacovella v. Iacovella, 121 Pa. Super. 139, 144, 182 A. 727; Act of June 19, 1939, P.L. 440, No. 250, 17 Pa.C.S.A. § 263.
Appeal is quashed.