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COMMONWEALTH v. PEWATTS (12/12/62)

December 12, 1962

COMMONWEALTH
v.
PEWATTS, APPELLANT.



Appeal, No. 218 April T., 1962, from order of County Court of Allegheny County, No. 296 of 1962, in case of Commonwealth of Pennsylvania v. John Pewatts, also known as John Pewats. Order affirmed.

COUNSEL

Hymen Schlesinger, with him M. Y. Steinberg, for appellant.

George E. Loebig, for appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, And Flood, JJ. (woodside, J., absent).

Author: Montgomery

[ 200 Pa. Super. Page 24]

OPINION BY MONTGOMERY, J.

This is an appeal from an order of the County Court of Allegheny County directing the appellant to pay $10 per week for the support of his illegitimate child, then fourteen years of age. Jurisdiction of the matter was taken under the Allegheny County Court Act of 1911, P.L. 198, as amended, 17 P.S. 626(pp), providing for the County Court to take jurisdiction "(g) In all cases involving the support of a child born out of wedlock, where the father admits parentage, and where he is willing to support the child." We have no difficulty in arriving at the same conclusion arrived at by the lower court, that the Legislature intended to give jurisdiction whenever the putative father admitted parenthood or where the alleged putative father was willing to support a bastard child, on the analysis of the law made by the lower court. We do note, however, that in the amending Acts of 1945, P.L. 184, and 1951, P.L. 1066, as well as the record of same in Purdon's Digest of Statutes, 17 P.S. 626(pp), there is a comma after the word "parentage" and before the word "and" as shown above, which comma is omitted in appellant's recital of the act in his brief.

[ 200 Pa. Super. Page 25]

Admittedly, appellant did not express a willingness to support the child when he appeared before the County Court. However, he admitted parenthood, which gave the County Court jurisdiction of the matter. He defends the action by showing full compliance with an order of the Quarter Sessions Court in a fornication and bastardy proceeding involving the same child, which provided for its maintenance until it reached the age of fourteen. That order terminated on January 25, 1961, from which date he has made no contribution. What we are required to determine is the effect of that order.

Under section 506 of The Penal Code of 1939, June 24, P.L. 872, as amended, 18 P.S. 4506, as it existed at the time of appellant's prosecution in the Quarter Sessions Court, as well as thereafter, fornication is made a misdemeanor subject to a fine of one hundred dollars ( $100); and when a child is born a separate crime known as "fornication and bastardy" or simply "bastardy", is committed. Commonwealth ex rel. Roberts v. Keenan, 170 Pa. Superior Ct. 282, 85 A.2d 678; Commonwealth v. Rednock, 165 Pa. Superior Ct. 536, 69 A.2d 447; Commonwealth v. Bertram, 143 Pa. Superior Ct. 1, 16 A.2d 758. An additional sentence is provided for that crime, viz., the payment of the expenses of the birth and maintenance of the child, and its burial should it have died.

Section 732 of the 1939 Penal Code, 18 P.S. 4732, also imposes on the putative father the obligation to support his child born out of wedlock. We have interpreted a provision under the Act of 1917, P.L. 773, as amended, similar to section 732, as establishing a separate crime not barred by a previous conviction for the crime of fornication and bastardy involving the same child. Commonwealth v. Susanek, 88 Pa. Superior Ct. 428; Commonwealth v. Harry J. Morningstar, 82 Pa. Superior Ct. 425; Commonwealth v. Wibner, 73 Pa. Superior Ct. 349.

[ 200 Pa. Super. Page 26]

However, by the specific provision of section 732, proceedings under it are suspended "Whenever a parent is paying for the support of a child, under an order of court made in any other proceeding, civil, criminal, or quasi-criminal ... unless he has failed to obey such order of court." The offense under section 732 is committed at the time the putative parent ceases to support his child. The present appellant ceased to pay for the support of his child when it reached the age of fourteen. In Commonwealth v. Harry J. Morningstar, supra, a conviction under this statute was sustained although the ...


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