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COMMONWEALTH EX REL. MILLER v. DILLWORTH (12/08/64)

decided: December 8, 1964.

COMMONWEALTH EX REL. MILLER
v.
DILLWORTH, APPELLANT



Appeal from order of County Court of Philadelphia, Feb. T., 1964, No. 4021, in case of Commonwealth ex rel. Marilee Branaman Miller v. David J. Dillworth.

COUNSEL

William D. Miller, for defendant, appellant.

No argument was made nor brief submitted for appellee.

R. Alan Stotsenburg, and Nix, Rhodes & Nix, for amicus curiae.

Gordon Gelfond, Assistant District Attorney, Thomas M. Reed, Chief Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, amicus curiae.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.

Author: Flood

[ 204 Pa. Super. Page 422]

Two questions are before us. 1. Does the Civil Procedural Support Law, Act of July 13, 1953, P. L. 431, as amended, August 14, 1963, P. L. 872, 62 PS § 2043.31 et seq., authorize the determination of the paternity of an illegitimate child by a judge without a jury? 2. If so, does it violate the jury trial guaranties of § 6, or § 9 of art. I of the Constitution of Pennsylvania?

1. The Civil Procedural Support Law, originally passed to authorize civil proceedings for the support of legitimate children, was extended to cover support for illegitimate children by the 1963 amendment. The defendant contends that the amendment, by its terms, is operative only when paternity has been previously established by criminal proceedings either under § 506 of The Penal Code of June 24, 1939, 18 PS § 4506, making fornication a crime, or § 732 of The Penal Code, 18 PS § 4732, making it a misdemeanor to neglect to support a child born out of lawful wedlock.

The Civil Procedural Support Law of 1953, in its original form, provided that anyone "to whom a duty of support is owing" may file a complaint thereunder (62 PS § 2043.35(b)) and, after notice to the defendant, "an order of support may be made, effective from the date of the filing of the complaint" (62 PS § 2043.37(a)) and enforceable by attachment for contempt (62 PS § 2043.39(a)). Under the original act "Duty of Support" includes any duty of support imposed or imposable by law or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance or otherwise." (62 PS § 2043.32(2)). The amendment of August 14, 1963, expanded the definition of "duty of support" to include a duty imposed by "prosecution for failure to support a child born out of lawful wedlock".

[ 204 Pa. Super. Page 423]

The defendant argues that, since paternity of an illegitimate child has always been determinable only in criminal proceedings in Pennsylvania, we cannot presume a legislative intent to change this procedure from the equivocal language of the 1963 amendment. Moreover, the language of § 2 of the amendment in redefining "duty of support" speaks against such an intent.

However, if we adopt this construction, it leaves the amendment totally without effect. Under both §§ 506 and 732 of The Penal Code, denouncing fornication and neglect to support respectively, conviction of the defendant gives the court authority to make an order for the support of the child and to increase or decrease that order as circumstances may require, and enforce it by attachment of the person of the defendant. No other or greater authority is given to the court under the 1963 amendment. Unless, therefore, the amendment authorizes a finding of paternity without a prior criminal proceeding it is totally without effect and leaves the situation exactly as it was before. Such a construction of the amendatory act is to be avoided, if possible. Every law shall be construed, if possible, to give effect to all its provisions. Act of May 28, 1937, P. L. 1019, art. IV, § 51, 46 PS § 551. Here other provisions of the Civil Procedural Support Law, as amended, require a different construction.

Section 3 of the Civil Procedural Support Law provides that proceedings thereunder "are in addition to and not in substitution of proceedings provided by law where there is a desertion or a failure of duty to support". It is obvious from this that the legislature did not intend that criminal ...


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