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decided: October 3, 1968.


Appeals from orders of Superior Court, Oct. T., 1964, No. 270, affirming order of County Court of Philadelphia, Feb. T., 1964, No. 4021, and Oct. T., 1965, No. 42, affirming order of County Court of Philadelphia, July T., 1964, No. 4084, in cases of Commonwealth of Pennsylvania v. David J. Dillworth, and Commonwealth of Pennsylvania v. Emmett A. Murphy.


R. Alan Stotsenburg, with him William D. Miller, Frank M. Jakobowski and John A. Luchsinger, for appellant, Dillworth.

R. Alan Stotsenburg, with him Robert N. C. Nix, Jr., and Nix, Rhodes & Nix, for appellant, Murphy.

Gordon Gelfond, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

David Berger, for County Court of Philadelphia, intervenor.

John H. Lewis, Jr., for Legal Aid Society of Philadelphia, intervenor.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones dissents. Concurring Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Musmanno.

Author: O'brien

[ 431 Pa. Page 481]

These two actions now before this Court arose under the Civil Procedural Support Law, Act of July 13, 1953, P. L. 431, as amended, August 14, 1963, P. L. 872, 62 P.S. Sec. 2043.31 et seq., originating in the Women's Division of the County Court of Philadelphia on complaints filed by the respective mothers of two children born out of lawful wedlock. Our Court, by order dated August 3, 1965, consolidated them for argument as both cases present an identical question.

In Dillworth's case, the complaint was filed on November 26, 1963; in Murphy's case, on November 21, 1963. In the Murphy case, plaintiff swore out a criminal information against Murphy charging him with the crimes of fornication and bastardy resulting in the subsequent birth of a child. In the Dillworth case, plaintiff's petition did not indicate under what act of the assembly the petitioner was proceeding. Prior to the time of trial however, both complaints were in the form as set forth in the Civil Procedural Support Law, as amended. (62 P.S. Sec. 2043.31 et seq.)*fn1 Dillworth's

[ 431 Pa. Page 482]

    case was heard on February 3, 1964, at which time Dillworth appeared with counsel who demanded a jury trial. This was denied and the trial proceeded with the court making a finding of paternity and ordering weekly support payments of $10.00. In the Murphy case, the original complaint as filed charged the defendant with fornication and bastardy under Section 506 of The Penal Code (18 P.S. § 4506). However, following the effective date of the amendment to the Civil Procedural Support Law of August 14, 1963, the charge of fornication was dropped from the complaint and the case came to trial on February 3, 1964. The defendant was represented by counsel who by motion requested a jury trial. The motion was dismissed and the court, after making a finding of paternity, ordered the defendant to pay $7.00 a week until the child reached the age of eighteen.

Dillworth took an appeal to the Superior Court (October Term, 1964, No. 270), where the Order of the County Court of Philadelphia was affirmed. (204 Pa. Superior Ct. 420). We subsequently granted allocatur. In the Murphy case the appellant also appealed the order of the lower court to the Superior Court where, because it presented an identical question as had been presented in the Dillworth case, the Superior Court certified Murphy's appeal to this Court. On petition of both appellants, in which the Commonwealth joined, we consolidated both appeals. As these appeals question the validity of a statute, we also gave leave to the Attorney General of the Commonwealth to intervene; however, he has not seen fit to do so.

The same two questions are before us as were considered by the Superior Court in the Dillworth case

[ 431 Pa. Page 483]

(204 Pa. Superior Ct. 420), namely, (1) whether the legislature intended to authorize a determination of paternity of an illegitimate child by a judge alone and, if so, (2) whether such an authorization by the legislature violated the right of jury trial guaranteed by Section 6 and/or Section 9 of Article I of the Constitution of Pennsylvania.

Mindful of the judicial practice of not reaching constitutional issues if the case may properly be disposed of on other grounds, we find it unnecessary to resolve the second question. We are of the opinion that the legislature never intended to authorize a determination of paternity by a judge alone.

The Civil Procedural Support Law as originally enacted*fn2 did not provide for the support of illegitimate children. In 1963, however, the statute was amended to include an action for support of illegitimate children.*fn3 Prior to the adoption of this amendment, an order for support of an illegitimate child could only be entered after a determination of paternity had been established by criminal proceedings under The Penal Code of June 24, 1939. This determination could be made either in a prosecution for fornication and bastardy under § 506 of the Code, 18 P.S. § 4506, or in a prosecution for willful neglect to support a child born out of lawful wedlock under § 732 of the Code, 18 P.S. § 4732. The trial judge relied on the 1963 amendment to the Civil Procedural Support Act as enabling her to

[ 431 Pa. Page 484]

    make a finding of paternity without prior criminal proceedings as theretofore had been required.

Appellants contend, however, that the enactment of this 1963 amendment to the Civil Procedural Support Law was not intended by the legislature to discard the right to a jury trial in the determination of paternity, but, rather the act becomes operative only after a finding of paternity by prior criminal proceedings under The Penal Code.

The Superior Court, rejecting appellants' contention, held that unless the 1963 amendment to the Civil Procedure Support Law was interpreted as authorizing a finding of paternity without a prior criminal proceeding it is "totally without effect and leaves the situation exactly as it was before."*fn4 The court based its conclusion on the fact that under the existing sections of The Penal Code, § 506 and § 732, the trial court had authority to make a support order in favor of an illegitimate child and to increase or decrease that order whenever such action was justified. Accordingly, the Superior Court construed the amendment as manifesting a legislative intent to abrogate the putative father's right to have a jury decide the issue of paternity.

We cannot agree that appellants' view leaves the 1963 amendment totally without effect. The amendment serves a very worthwhile purpose if it is interpreted as creating a judicial short cut permitting the entry of a support order in the case of "a child born out of lawful wedlock" without a prior criminal proceeding when paternity is not disputed.*fn5 Thus, if the putative father is willing to support his child but

[ 431 Pa. Page 485]

    simply disputes the amount he is required to pay, the order can be entered without compelling him to suffer the stigma of pleading guilty to a criminal offense.

Surely the above interpretation of the legislative intent is the most consistent with prior treatment of the right to a jury trial. "The right to trial by jury has sometimes been figuratively referred to as 'the jewel of Anglo-Saxon jurisprudence.'" Com. v. Fugmann, 330 Pa. 4, 29, 198 Atl. 99, 111 (1938); accord, William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 93, 173 A.2d 59, 64, cert. denied, 368 U.S. 897, 82 S. Ct. 174 (1961). The Superior Court stressed § 3 of the Civil Procedural Support Act which provides that "the proceedings provided by this act are in addition to and not in substitution of proceedings provided by law where there is desertion or failure to support." Emphasizing the "in addition to" phrase but ignoring the "not in substitution of" phrase, the Superior Court held that criminal proceedings were not required as the basis for a support order where paternity was disputed. Yet under this construction, the decision to dispense with a jury trial is given exclusively to the prosecutrix, or more realistically, the Commonwealth; clearly this is not in accord with the usual practice, in both civil and criminal cases, where the consent of both parties is a prerequisite for dispensing with a jury trial.*fn6 The right to jury trial has been deemed so important that in Com. v. Hall, 291 Pa. 341, 140 Atl. 626 (1928), this Court, speaking through Chief Justice von Moschzisker, held that absent specific legislative authorization, when a defendant plead not guilty, the Court of Quarter Sessions had no power to try the

[ 431 Pa. Page 486]

    case without a jury even if the defendant waived his right to a jury trial. In neither the original Civil Procedural Support Law, enacted in 1953, nor in the 1963 amendment to that law involved in the present litigation did the Legislature refer to the manner in which the relevant facts were to be determined. As we said in Com. v. Turchetta, 404 Pa. 41, 47, 171 A.2d 54, 57 (1961): "We should not be ingenious to find reasons to deny a man his trial by jury when he presses for it at trial: . . .". Statutes which tend to infringe on the right to trial by jury ought to be strictly construed. Gordon v. Biesinger, 335 Pa. 1, 6 A.2d 425 (1939); Felt v. Cook, 95 Pa. 247 (1880); Rhines v. Clark, 51 Pa. 96 (1866).

We are unable to infer an intention to dispense with a jury determination of paternity from the language of the 1963 amendment.

The orders of the Superior Court and the County Court of Philadelphia are reversed, and the cases are remanded for proceedings consistent with this opinion.


Orders reversed.


Concurring Opinion by Mr. Chief Justice Bell:

I concur in the result, but I am compelled to make additional comments.

I strongly disagree with Justice Cohen's conclusion that a lower Court should never be permitted to have its practices and procedures supported by a counsel of its own choosing.

The questions and issues raised in this case were exceptional. They involved not only thousands of mothers, putative fathers and helpless dependent babies and little children, but likewise the powers and the practices and procedures which the County Court of Philadelphia had established and long followed. If these practices were held to be invalid or unconstitutional,

[ 431 Pa. Page 487]

    the result would seriously impede the prompt disposition by the Court of the multitude of cases of this nature which are brought before it. To invalidate the long-established practices and procedures in this field would tremendously increase the backlog of cases in that Court and postpone for many months, if not for many years, the necessary financial support by fathers of babies and little children. Under these exceptional circumstances, it was certainly wise to permit the County Court to intervene and to present its views by David Berger, an attorney of its choice. Mr. Berger, a former Chancellor of the Philadelphia Bar Association, a former City Solicitor, and a prominent member of the Bar, alleged in his petition that the case ". . . affects in the highest degree the procedures of the County Court, the substantial backlog of cases, and the support of a large number of illegitimate children.

"In addition, this case presents issues of paramount importance to the general public, to the Commonwealth as a whole, and to the courts in which the Civil Procedural Support Law and support matters generally are enforced."

Mr. Berger also alleged in his petition that the decision of the Supreme Court ". . . will have a serious effect on the current, great backlog of support cases as yet unheard. Further, your Petitioner believes that should the procedure which it [the Court] has followed in this case and in all such cases since the effective date of the amendatory Act be overturned, a new and even greater backlog of such cases will be created which will substantially delay justice to the point that in many instances, justice may be denied entirely to the unfortunate illegitimate children and their mothers for whose benefit the Legislature enacted the Support Law."

[ 431 Pa. Page 488]

Under such circumstances, it was eminently proper that the petition of the County Court to be represented by an attorney of its choice should be granted.*fn*


Concurring Opinion by Mr. Justice Cohen:

More than three years ago on April 19, 1965, we allowed appeals from the Superior Court's determination in the above matters. The appeals were argued November 16, 1965; reargued May 3, 1966 and reargued for the second time November 29, 1967.

Contributing to this long delay was the action taken by our Court on November 19, 1965, permitting the lower court (from which the appeals had been taken) to engage counsel to represent the lower court in the appeals to our Court, advocating that the lower court's determination be sustained. (See Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968)). I cannot refrain from commenting upon the impropriety of such practice. I see no place in our judicial system for the intrusion of lower tribunals in proceedings of our Court. They tend only to confuse and disrupt, but more important their presence indicates overtones of objectives not compatible with justice. This unusual display of personal interest by a lower court demonstrates that the court was incompetent to have heard the litigation in the first instance.

I do not mean to imply any criticism of counsel, since I recognize the difficult position in which counsel is placed when requested by the lower court to represent it in appellate litigation. I do, however, ...

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