author: POPOVICH, Judge:

text:
    485 A.2d 24
    COMMONWEALTH of Pennsylvania v. Thomas J. HOBURN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed Nov. 9, 1984.

      Richard R. Victoria, Greensburg, for appellant.
    Terrance G. Faye, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which dismissed a pretrial motion to dismiss the charges against appellant, Thomas Hoburn. We affirm in part and reverse in part.

The facts which are undisputed are as follows:

On May 25, 1982, at approximately 1:07 a.m., appellant was operating a motor vehicle through the Borough of Mt. Pleasant and was pursued by a local police officer for summary violations of the Motor Vehicle Code. See the Act of June 17, 1976, P.L. 162, No. 81, § 1. During the pursuit, appellant was involved in an accident. However, because the accident occurred approximately a quarter of a mile from the township border, the local police officer contacted the state police who arrived on the scene fifteen minutes later.

On that same day, charges were filed against appellant by the local police. These seven charges were as follows: limitations on driving on the left side of the road , driving a prohibited unregistered vehicle, driving while operating privilege suspended or revoked, driving a vehicle at safe speed, fleeing or attempting to elude a police officer, driving under the influence of alcohol or controlled substance , and operating a vehicle without the official certificate of inspection. All of the charges are summary offenses with the exception of driving under the influence of alcohol or a controlled substance, which is a misdemeanor of the third degree. Appellant entered pleas of not guilty to these charges, and, after a preliminary hearing was held, appellant was bound over for trial.

Eight days later, on May 28, 1982, the state police officer also filed charges against appellant, all six of which were summary offenses arising from his operation of a motor vehicle on May 15, 1982, at 1:08 a.m. Some of these were the same as those charged in the other complaint, a few were added, and the driving under the influence charge was not included, as noted in the following chart:

Charges filed by Charges filed by the local police the state police
§ 1301 Driving a prohibited unregis- Driving a prohibited unregistered vehicle tered vehicle
§ 1543(a) Driving while operating privi- Driving while operating privilege is suspended or revoked lege is suspended or revoked
§ 1751 Not applicable Insurance identification required while driving
§ 3305 Not applicable Limitations on overtaking on the left
Charges filed by the local police Charges filed by the state police
§ 3306
(a)(2) Limitations on driving on the left side of the road Not applicable
§ 3361 Driving a vehicle at safe speed Not applicable
§ 3714 Not applicable Reckless driving
§ 3731
(a)(1) Driving under the influence of alcohol or a controlled substance Not applicable
§ 3733
(a), (b) Fleeing or attempting elude a police officer to Not applicable
§ 4703(a) Operating a vehicle without the official certificate of inspection Operating a vehicle without the official certificate of inspection

Appellant entered pleas of guilty to the summary charges which were filed by the state police and made payments on the fines and costs which totalled approximately seven hundred and twenty dollars ($720.00).

On October 28, 1982, appellant filed a pretrial motion to dismiss the charges which were pending against him in the Court of Common Pleas of Westmoreland County. A hearing was held. The trial court denied appellant relief, and this appeal followed.

On April 18, 1984, this Court remanded the matter in accordance with Pa.R.A.P. 1926 “for the certification and transmittal of a supplemental record which should include the citations to which appellant, Thomas Hoburn, entered pleas of guilty.” The supplemental record has been completed and forwarded to this Court for disposition. We must reverse in part and affirm in part for the reasons herein stated.

At the outset, we must decide whether applicable provisions of the Crimes Code preclude the prosecution of the charges pending in the Court of Common Pleas.

Section 109 of the Criminal Code provides for the following:

“§ 109. When prosecution barred by former prosecution for the same offense
When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosécution under the following circumstances:
(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
(2) The former prosecution was terminated, after the indictment had been found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.
(4) The former prosecution was improperly terminated after the first witness was sworn but before a verdict, or after a plea of guilty was accepted by the court.” (Emphasis added).
Section 110 also provides:
“§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(1) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
(3) The former prosecution was improperly terminated, as improper termination is defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.” (Emphasis added)

The trial court denied appellant relief because it concluded that under Section 110 “[t]he actions of the defendant in entering his plea to these later charges before the magistrate at a time when the earlier charges had already been forwarded to court may invalidate the later charges, but have no effect on the earlier charges.” Trial Court Opinion at 4. Thus, the controlling factor, according to the trial court, was the date that the charges were filed. As a result, because the filing of the charges by the local police preceded the filing of the charges by the state police, the local charges are valid.

However, our own Supreme Court has defined the term “former prosecution” which appears in Sections 109 and 110 and the term “subsequent prosecution” which appears in Section 110 differently when it said the following:

“The Erisman court erred in interpreting the terms ‘former prosecution’ and ‘subsequent prosecution’ under Section 110(l)(ii) as intending to limit the bar to offenses where the charge that is the subject of the former prosecution is filed prior to the charge sought to be barred. We find no justification for defining the terms ‘former prosecution’ and ‘subsequent prosecution’ as used in Section 110(l)(ii) in relationship with the time the particular offenses were filed. To the contrary, accepting our responsibility in the interpretation of legislative enactments to acknowledge the clear and obvious meaning of the language, Statutory Construction Act of 1972, Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1921(b)); In Re Estate of Fox, 494 Pa. 584, 431 A.2d 1008 (1981); In the Matter of Student Services, Inc., 495 Pa. 42, 432 A.2d 189 (1981), the terms former prosecution’ and ‘subsequent prosecution’ in the context used were obviously intended to refer to the completed prosecution and the pending prosecution respectively.
From the text of subsection 110(l)(ii) the operative fact is that the offenses stem from the same episode. There is nothing in the language to suggest that the time of filing of the various charges was germane to the legislative purpose and such an interpretation is obviously not in accordance with the theory of the rule as announced by this Court.” (Emphasis added)

Commonwealth v. Beatty, 500 Pa. 284, 289, 455 A.2d 1194, 1197 (1983).

Applying the above rationale to the facts of the instant case, we note that the completed “former” prosecution consisted of the six summary charges which were filed by the state police and to which appellant entered pleas of guilty. Because appellant entered pleas of guilty to these charges, a subsequent “pending” prosecution would be barred under Section 109 for a duplicative offense which occurred during the uninterrupted episode of May 15, 1982. Hence, the Motor Vehicle Code violations of driving a prohibited and unregistered vehicle (§ 1301), driving while operating privilege is suspended or revoked (§ 1543(a)), driving a vehicle at safe speed (§ 3361), and operating a vehicle without the official certificate of inspection (§ 4703) must be quashed because appellant had entered “plea[s] of guilty [which were] accepted by the court.” 18 Pa.C.S.A. § 109(3). Additionally, we reiterate that the record is undisputed that all of the crimes occurred during appellant’s uninterrupted criminal episode which began at 1:07 a.m. on May 15, 1982, in Mt. Pleasant and ended at approximately 1:08 a.m., one half mile from the jurisdiction of the Borough of Mt. Pleasant and into Mt. Pleasant Township. Accordingly, the requirements of Section 109 have been met.

A prosecution in the Court of Common Pleas of Westmoreland County for the different offenses, however, is not barred under Section 110(1)(ii). Although our rationale differs from that articulated by the trial court, we nonetheless conclude that a prosecution is not barred by Section 110 because our Supreme Court has said that the “compulsory joinder rule and Section 110 do not apply to prior summary convictions under the Motor Vehicle Code”. Commonwealth v. Breitegan, 500 Pa. 384, 385, 456 A.2d 1340, 1341 (1983). Thus, appellant can be brought to trial on the misdemeanor of driving under the influence of alcohol and also on the two summary offenses of driving on the left side of the roadway (75 Pa.C.S.A. § 3306(a)(2)) and fleeing or attempting to elude a police officer (75 Pa.C.S.A. § 3733(a)(b)) unless these charges are barred for reasons of double jeopardy. In this respect, we must remember the following guidelines:

“the disposition of the section 110 issue does not automatically determine appellant’s double jeopardy question. While in many respects section 110 and the double jeopardy clause serve the same ends, nevertheless, the two provisions are not one and the same. In the first instance, the double jeopardy clause is, of course, a constitutional right; by contrast, section 110 is merely statutory. This distinction is crucial when the question of waiver is an issue. A constitutional right will only be deemed waived where the decision to waive that right is both knowing and intelligent. See cases cited in text, infra, at 641. With regard to statutory provisions, the waiver need only be voluntary. Commonwealth v. Mallon, 279 Pa.Super. 350, 421 A.2d 234 (1980).
Secondly, while the double jeopardy clause and section 110 at times may, as in the instant matter, overlap in their application, this is not true in all situations. The double jeopardy clause prevents subsequent trials by the same sovereign for the same act whether the initial trial resulted in an acquittal or a conviction. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975). Section 110, on the other hand, requires that, when certain other requirements are met, all of the charged offenses 'based on the same conduct or arising from the same criminal episode’ be tried at the same time or be barred. Section 110, unlike the double jeopardy clause, is not limited to prosecutions for the same act. Indeed, as far as Pennsylvania statutory law is concerned, section 109 of Title 18 more properly governs prosecutions for the same act. In sum, appellant’s double jeopardy issue must still be decided.”

Commonwealth v. Johnson, 319 Pa.Super. 463, 469-470, 466 A.2d 636, 639-640 (1983).

Because “the record fails to show that appellant was otherwise advised of his double jeopardy rights, we decline in the instant case to find that appellant has waived this constitutional right by not raising it prior to trial.” Id., 319 Pa.Superior Ct. at 472, 466 A.2d at 644.

Turning to the merits, we note that the double jeopardy clause applies to summary traffic offenses. Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981). Accord Commonwealth v. Johnson, 319 Pa.Super. at 472, 466 A.2d at 641 (“the double jeopardy clause does apply to motor vehicle citations”.)

The traditional test for determining whether a double jeopardy violation has occurred was pronounced in Blockburger v. United States, 284 U.S. 299, 54 S.Ct. 180, 76 L.Ed. 306 (1932) and “focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” Illinois v. Vitale, 447 U.S. 410, 417, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228, 235 (1980). Accord Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984). Simply stated, there is no violation if “ ‘each statute requires proof of an additional fact which the other does not[.]’ ” Id.

Under the Blockburger test, there is no double jeopardy violation for prosecuting appellant under Sections 3306(a)(2), 3733(a), (b) and 3731 of the Motor Vehicle Code.

The crime of driving under the influence requires the additional element of driving “under the influence of alcohol to a degree which renders the person incapable of safe driving.” 75 Pa.C.S.A. § 3731(a)(1). The crime of limitations on driving on the left side of the roadway prohibits driving on the left side of the roadway “[w]hen approaching or upon the crest of a grade or a curve in the highway where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.” 75 Pa.C.S.A. § 3306(a)(1). Additionally, the crime of fleeing or attempting to elude a police officer prohibits a driver from “willfully failing] or refusing] to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop.” 75 Pa.C.S.A. § 3733(a). Because these three crimes require proof of elements not required under the summary citations to which appellant entered pleas of guilty, these prosecutions are not barred by the double jeopardy clause.

The charges of driving a prohibited unregistered vehicle, driving while operating privilege is suspended or revoked, driving a vehicle at safe speed, and operating a vehicle without the official certificate of inspection are dismissed.

The charges of driving under the influence of alcohol, limitations on driving on the left side of the roadway, and fleeing or attempting to elude a police officer are affirmed, and the matter is remanded for trial on these charges.

Jurisdiction is not retained.

LIPEZ, J., concurs in the result.

      . 75 Pa.C.S.A. § 3306(a)(2).

      . 75 Pa.C.S.A. § 1301.

      . 75 Pa.C.S.A. § 1543(a).

      . 75 Pa.C.S.A. § 3361.

      . 75 Pa.C.S.A. § 3733(a), (b).

      . 75 Pa.C.S.A. § 3731(a)(1).

      . 75 Pa.C.S.A. § 4703(a).

      . The pretrial order is appealable because the denial of a pretrial application seeking a discharge on double jeopardy grounds is considered a "final order”. Commonwealth v. Beckman, 304 Pa.Super. 239, 450 A.2d 660 (1982).

      . Our Supreme Court has commented on the relationship between the compulsory joinder rule and Rule 110 and has stated that:
      "This Court’s decisions in Campana /[*] and Campana //[**] ultimately designed a rule of compulsory joinder which required the criminal offenses arising from the same criminal episode to be disposed of in one prosecution. Commonwealth v. Beatty, [supra]. In the interim between Campana I and Cam-pana II, the legislature promulgated section 110 which set forth when prosecution would be barred by former prosecution for a different offense.[***]
      While this Court in its Campana decisions spoke in terms of the obligation to join offenses, and the legislature in section 110 provided a bar of prosecution where joinder had not occurred, it is evident that our Court rule was in harmony with section 110. See Commonwealth v. Beatty, supra; Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981); Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976). Any treatment of an alleged Campana rule violation as a separate and distinct claim from an asserted section 110 violation is misleading. In Campana the Court affirmatively articulated the obligation to join the charges; in contrast, the General Assembly in section 110 achieved the same result by providing a sanction where such a joinder does not occur.[****] Any attempt to persuade this Court to modify or restrict its view expressed in its Campana rule would be unavailing since those provisions are also required by statutory mandate.
      [*] Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) (Campana I).
      [**] Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (Campana II).
      [***] Section 109 of the Crimes Code, 18 Pa.C.S.A. § 109, addressed prosecutions barred by former prosecution for the same offense. Section 111, 18 Pa.C.S.A. § 111, set forth when prosecution would be barred by former prosecution in a foreign jurisdiction. Section 112, 18 Pa.C.S.A. § 112 provided a qualification to §§ 109, 110 and 111.
      [****] As previously noted, section 110 in its entirety and the related sections of the Crimes Code are broader than our Campana rule. See n. 11.

        Commonwealth v. Hude II, 500 Pa. 482, 486, 458 A.2d 177, 179-180 (1983).

      . This Court must reject the prosecution’s suggestion that appellant has waived the right to assert the applicability of the compulsory joinder rule because the pending charges had been transferred to the Court of Common Pleas of West-moreland County before the charges had been filed by the state police. Thus, we cannot say that appellant "was aware of all charges filed against him in separate townships” and sat by without moving for consolidation. Commonwealth v. Johnson, 319 Pa.Super. at 469, 466 A.2d at 639 (emphasis added). Moreover, we have stated, infra at note 9, that the compulsory joinder rule is inapplicable to summary traffic offenses.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    485 A.2d 30
    Jean RITTEL v. Frank RITTEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1983.
    Filed Nov. 23, 1984.

      Joseph J. Yeager, Wilkes-Barre, for appellant.
    Lawrence D. MacDonald, Wilkes-Barre, for appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   SPAETH, President Judge:

This appeal is from an order entered on a petition that appellant be held in contempt for failing to comply with a child support order. The trial court did not hold appellant in contempt but ordered that part of the proceeds due appellant from the sale of entireties property be used to satisfy appellant’s arrearages, and further, that the remainder of the proceeds be put into an escrow account to guarantee future payments on the support order. Appellant argues that in entering the order the trial court abused its discretion because, among other reasons, the court did not consider appellant’s ability to pay support and the change in appellant’s circumstances. We agree, and therefore remand for further proceedings consistent with this opinion.

The support order from which this appeal arises was issued on October 8, 1980, on the basis of an agreement by the parties. The order provided that appellant should pay $140 bi-weekly to appellee for the support of their two minor children, $10 bi-weekly on arrears due appellee, and $5 bi-weekly on arrears due the Department of Public Welfare. According to the testimony of a Miss lorio, given at the contempt hearing, the terms of the order were based on appellant’s sole source of income of $227 per week in workman’s compensation benefits. (Transcript at 1)

On December 30, 1980, appellant claims, his benefits were discontinued after an insurance company doctor found him to be physically capable of returning to his job as a truck driver. This claim was supported by Miss lorio, who testified that she had received an affidavit from the P.M.A. Insurance Company to the effect that appellant’s benefits had been discontinued on December 30, 1980. (Transcript at 1) Appellant asserted that he still was unable to work, and indicated that a report from a Doctor Groblewski would show this. (Transcript at 6) However, neither the insurance company affidavit nor the doctor’s report is part of the record.

Appellant did not file a petition to modify the support order after his benefits were discontinued. At no time during the course of the proceedings against him, in fact, has appellant challenged the amount of support he was required to pay under the October 8 support order. Instead, in January 1980, he simply stopped paying all child support. (Testimony of Miss lorio, Transcript at 1)

On May 7, 1981, appellee petitioned the trial court to hold appellant in contempt for non-payment of support. On October 1, 1981, the court scheduled a hearing on the petition and so notified appellant.

The contempt hearing was held on November 20, 1981. Appellee’s attorney was present, as was the Commonwealth’s attorney representing the Department of Public Welfare. Appellant was unrepresented. At several times during the course of the hearing, appellant referred to his absent attorney. Early in the hearing, when questioned by the trial court regarding the resources he had available to satisfy the substantial arrearages that had accumulated since January 1980, appellant noted that appellee had placed a $5,000 lien upon their jointly-owned home. The following colloquy ensued:

THE COURT: How do you know it’s [the lien is] there?
MR. RITTEL: It’s in the courthouse. My attorney knows about it.
THE COURT: Who is your lawyer?
MR. RITTEL: Joseph Yeager.
THE COURT: Where is he today?
MR. RITTEL: I don’t know sir.
(Transcript at 2)

Later in the hearing, when questioned further about his ability to pay the arrearages, appellant again referred to his attorney:

THE COURT: What do you want to do about the arrear-age, sir?
MR. RITTEL: I would pay it but my home is up for sale. THE COURT: Pardon.
MR. RITTEL: My attorney knows everything but my home is sold.
(Transcript at 3)

Appellant again mentioned information possessed by his attorney when the court continued to question him regarding the arrearages:

THE COURT: What are you able to pay on that arrear-age right now?
MR. RITTEL: I am disabled.
THE COURT: Can you pay half of it?
MR. RITTEL: I don’t have nothing. They took my workmen’s compensation off me December 31, 1980. The company doctor says I’m better, Mr. Yeager knows I’m disabled. There’s a record there from Doctor Groblewski. (Transcript at 5-6)

These several references to appellant’s attorney, and to what the attorney knew, were not pursued by the trial court. Instead the court apparently concluded, on the basis of its questioning of appellant, that the only resource available to appellant to satisfy the arrearages was the home he owned jointly with his wife as tenants by the entireties.

Appellee’s attorney then informed the court that “[w]e”— not identifying to whom he referred — had tentatively agreed that appellant should assign a sufficient share of the proceeds from the sale of the parties’ home to pay the arrearages in full. (Transcript at 6) Appellee’s attorney further informed the court that “[t]he prospects” of the home being sold were “relatively good”. (Transcript at 6) The attorney explained that the sale depended upon receipt of an “appraisal of the home at $40,000.00 to substantiate the mortgage.” Id. Further questioning of appellee’s attorney by the court revealed that the property was encumbered by a mortgage of $9,000, a Department of Public Welfare lien of $4,000, and a bank lien of $1,000 to secure a loan to appellee. (Transcript at 4-5) Thus the court was informed, in substance though not in so many words, that if the home were sold, the net proceeds would be about $25,000 so that appellant’s share would be about $12,500.

At this point in the hearing appellee’s attorney expressed his client’s concern “about future payments”. (Transcript at 6) The court then questioned appellant:

THE COURT: ... Are you willing to accept an order directing that the amount of any arrearage at the time of closing shall be paid directly to the mother of the children
MR. MacDONALD [appellee’s attorney]: Well, it would be paid to ...
THE COURT: ... and as far as guarantee any future payments. Are you willing to place your share of the ...
MR. RITTEL: My children, I’ll give anything to my children, anything.
THE COURT: Wonderful. Then I’m going to ask you to place your balance of the money from the sale of the home in escrow so you can pay from there the weekly support.
MR. RITTEL: I love you, I love everybody according to law. I’m a human being and I’m a good human being, I’ll pay it.
THE COURT: Are you agreeable to that order?
MR. RITTEL: Yes.
(Transcript at 7-8)

After some further colloquy the court issued the following order:

THE COURT: Upon the sale of the home there shall be deducted from the defendant’s [appellant’s] half share and made payable from the proceeds directly by bank check the amount thus due on arrearages for support of the two children.
Further, after that arrearage is paid in full the balance due the defendant from his share shall be placed in escrow with directions to the escrow agent to submit weekly checks — bi-weekly checks in the amount of $140.00, that would then be the net effective order because all arrearages would have been resolved.
(Transcript at 11)

It is this order from which appellant has appealed.

Appellant does not object to that part of the trial court’s order directing that appellant’s arrearages be paid from appellant’s share of the proceeds from the sale of the parties’ home; his objection is to that part of the order directing that the remaining part of his share of the proceeds be placed in escrow to guarantee future payments of child support. He argues that the issue of future support payments was not properly before the court. He further argues, apparently in the alternative, that if the issue was properly before the court, then in deciding it the court abused its discretion because it failed to take into consideration appellant’s circumstances and consequent ability to pay support as directed in the order.

In considering appellant’s arguments, we must bear in mind that the scope of our review of a support order is narrow: “absent a clear abuse of discretion, we will defer to the order ...” Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 38, 457 A.2d 98, 101 (1983). See also Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). However, before entering a child support order the trial court “should consider the parent’s income and the full nature and extent of the parent’s property interests and financial resources.” Pawol v. Pawol, 293 Pa.Super. 29, 34, 437 A.2d 974, 977 (1981) (quoting Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981)), and we will remand where the record demonstrates that the trial court did not consider these factors, or where the record fails to disclose that the court did consider them. Id.; Commonwealth ex rel. Rosenfeld v. Rosenfeld, 276 Pa.Super. 616, 419 A.2d 628 (1980) (remand where after reviewing record we were “unable to determine whether appellant was afforded a full and fair opportunity to air [his] claims....”). See also, Commonwealth v. Vogelsong, supra (on petition to modify support order, all relevant circumstances must be considered); Prescott v. Prescott, 284 Pa.Super. 430, 426 A.2d 123 (1981) (on petition to remit arrearages, all factors relevant to appellant’s financial condition must be considered); Commonwealth ex rel. Re David v. Re David, 251 Pa.Super. 103, 380 A.2d 398 (1977) (court should consider both spouses’ income, potential earning power, and extent of property and financial resources). Here, we have concluded, appellant was not “afforded a full and fair opportunity to air [his] claims.” Moreover, so far as we can determine from the record, the trial court did not consider all of the factors relevant to appellant’s financial condition. Accordingly, we shall remand for further proceedings.

We may begin our explanation of this conclusion by noting that important economic rights of appellant were determined in the absence of his attorney. As already remarked, the record does not reveal why at the hearing, see supra note 3, appellant was unrepresented, and it is certainly true that he had no right to have counsel present, see supra note 4. Furthermore, as appellee argues, appellant did agree to the escrow arrangement when it was proposed to him by the court. (Brief for Appellee at 5) However, we are not persuaded that without the opportunity to consult with his attorney, appellant understood what he was “agreeing” to. Moreover, the transcript shows that the court and appellee’s attorney knew that appellant was represented and that prior negotiations of some sort regarding the disposition of appellant’s property had taken place, and further, that appellant’s attorney may have possessed information regarding both the sale of the parties’ home and appellant’s medical- and employment history. Although it was therefore clear that the presence of appellant’s attorney would have been helpful to a full and fair adjudication of appellant’s ability to satisfy his future support obligations, no effort appears to have been made to call the attorney. (Transcript at 2, 3, 6)

The suggestion arising from these circumstances that an unfair advantage may have been taken of appellant is strengthened by the fact that appellant was given no notice that appellee would seek a guarantee of his future payments of support. The notice that was given appellant was that he might be held in contempt for his past non-payment of support. (Record at 12) The device of an escrow account to guarantee future payments was first suggested by the trial court, in the middle of the hearing, after the prompting of appellee’s attorney. (Transcript at 8, 6)

If we put aside these procedural concerns regarding the absence of appellant’s attorney and the failure to give full notice, still we are unable to approve the trial court’s order. At the hearing, appellant contended that he was physically unable to work; that he was unemployed; that he was without a current source of income; that he was living with his mother; and that he was borrowing money from her to live. (Transcript at 8-9) While appellant called no witness to support these contentions, neither did appellee’s attorney call any to rebut them, and to some extent they were corroborated by Miss lorio. It is of course true that all of a parent’s resources are available to satisfy the parent’s child support obligations. See Dugery v. Dugery, 276 Pa.Super. 51, 54, 419 A.2d 90, 91 (1980), citing Commonwealth ex rel. DiVirgilio v. DiVirgilio, 182 Pa.Super. 475, 480, 127 A.2d 774, 776-777 (1956). Nevertheless, “[i]t is well established in Pennsylvania that any order for support must be fair and not confiscatory. The purpose of such an order is the maintenance and welfare of the children, not the punishment of the parent, and the amount of the order must be justified by the parent’s present earning ability, making due allowance for his own reasonable living expenses.” Commonwealth ex rel. Goodman v. Delara, 219 Pa.Super. 449, 453, 281 A.2d 751, 753 (1971). See also Costello v. LeNoir, 462 Pa. 36, 40, 337 A.2d 866, 868 (1975); Commonwealth ex rel. Malizia v. Malizia, 229 Pa.Super. 108, 324 A.2d 386 (1974). Thus in Commonwealth v. Vogelsong, supra, we held that the trial court had abused its discretion when it refused to modify a support order after the parent had presented evidence that the amount of the order exceeded his only source of income, his Social Security disability benefits. The trial court had based its refusal to modify on the fact that the parent owned entireties property to which he could look to satisfy his obligations. We ruled, however, that because, among other reasons, the property was the parent’s only major asset and because the support order exceeded his current level of income, “to require that it be encumbered further or liquidated for arrearages ... appears unreasonable, if not confiscatory.” 457 A.2d at 1301. The same may be said here, if appellant’s contentions regarding his ability to work and his financial circumstances are true. Of course, appellant’s contentions may not be true. We have no way of knowing. And since no testimony was presented either in support of or against the contentions, neither did the trial court have any way of knowing.

The trial court’s order is affirmed in part, regarding the arrearages, and reversed in part, regarding the future payments, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Miss lorio is not identified in the transcript. From the context of her remarks, however, she appears to be an officer of the court.

      . The notice informed appellant of his right to defend against the claim that he had willfully disobeyed the support order, but it did not suggest that he seek legal advice. Compare Pa.R.C.P. No. 1910.21, which states that a petition for civil contempt in a support matter "shall begin with a notice in substantially the following form,” and prescribes a form that ends:
      YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

      . The attorney thus identified has filed a brief in support of appellant’s appeal. While arguing that appellant had “an absolute right to have legal counsel present", Brief for Appellant at 6, the brief does not offer an explanation of the attorney’s absence.

      . We say "apparently" because the court has not written an opinion explaining its order. We believe, however, that the court’s conclusion is implicit in its order.

      . Appellant makes two other arguments, which may be disposed of summarily.
      First, appellant argues that because the trial court was authorized to impose a sentence of up to six months imprisonment for contempt of the support order, see 42 Pa.Cons.Stat.Ann. § 6708(b), he had “an absolute right to have legal counsel present at [the contempt] proceeding.” Brief for Appellant at 6. Appellant had no such right. The rule articulated in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), to which appellant refers, is that no indigent criminal defendant may be imprisoned without having been offered court-appointed counsel. In Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1161, 59 L.Ed.2d 383 (1979), however, the Court specifically limited Argersinger to those cases in which imprisonment is actually imposed, not merely authorized. In the present case, the court did not hold appellant in contempt, and did not order him imprisoned. Even had the court ordered imprisonment, however, the rule of Argersinger would not be applicable, for the contempt proceeding against appellant was civil, not criminal. See Barrett v. Barrett, 470 Pa. 253, 386 A.2d 616 (1977) (contempt proceedings for non-payment of support are civil, not criminal, because purpose of sanctions imposed is to coerce defendant into paying, not to punish him for non-payment.) Finally, the record does not show that appellant was indigent and therefore unable to secure his own attorney, but only that he had an attorney who did not, for an unexplained reason, appear at the hearing.
      Second, appellant argues that the trial court abused its discretion by failing to write an opinion stating its reasons for its decision. Brief for Appellant at 10. Because of our disposition below, we do not reach this argument.