Appeal from order of Superior Court, Oct. T., 1966, No. 855, affirming order of County Court of Philadelphia, Jan. T., 1966, No. 53791, in case of Commonwealth ex rel. Elizabeth B. Morgan v. George Smith.
Samuel Kravitz, with him Melvin B. Goldstein, for appellant.
Joseph G. Feldman, with him Stephen M. Feldman, and Feldman & Feldman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Musmanno dissent.
The primary issue on this appeal is whether, in the absence of sufficient legal evidence upon which to base a finding of paternity, a person, who maintained a meretricious relationship with the child's mother, can be found liable for the support of the child because he stood "in loco parentis" to the child?
In August 1946, Elizabeth Brooks entered into a lawful marriage with Clarence Morgan, a marriage never legally dissolved. After living together for about
four months, Morgan left his wife and disappeared.*fn1 Of that marriage the record does not reveal affirmatively the birth of any children. In 1948, Mrs. Morgan entered into a meretricious relationship with one George Smith, a relationship which lasted until 1965. During the time in which they lived together at various addresses in Philadelphia, Smith, a merchant seaman, by reason of his duties, was required to be absent for considerable periods of time.
On March 1, 1956, a male child was born to Mrs. Morgan to whom was given the name "George Smith, Jr." On the line indicated in the child's birth certificate for the signature of the child's father, Smith had signed his name. When the child was two years old, Smith said to Mrs. Morgan "Let's get married and give Georgie a good name." On July 1, 1959, Smith and Mrs. Morgan went through a marriage ceremony at Elkton, Maryland,*fn2 and, thereafter, continued to live together.
During the period within which Mrs. Morgan and Smith lived together, Smith contributed to the support of Mrs. Morgan and the child and paid for food, rent, clothing, medical bills, etc. On January 15, 1965, Smith stopped paying any support.
Mrs. Morgan, obviously at the behest of the relief authorities, instituted an action in the County Court of Philadelphia against Smith seeking support for the minor child. An examination of the petition, upon which this action is based, reveals that support is claimed from Smith solely on ...