Appeal from judgment of Court of Common Pleas, Family Division, of Philadelphia, March T., 1970, No. 4649, in case of Commonwealth of Pennsylvania v. Alfonso Jacobs.
Mark P. Widoff, with him Donald R. Stemmer, for appellant.
Milton M. Stein, Assistant District Attorney, with him Peter S. Greenberg, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.
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This is an appeal from a support order entered against appellant Alfonso Jacobs, on June 4, 1970, by Judge Benjamin Schwartz of the Court of Common Pleas of Philadelphia, Family Division, Women's Branch.
In September 1969, prosecutrix Darlene Holland filed a complaint alleging that appellant was the father
[ 220 Pa. Super. Page 33]
of her child Bryant Holland, born out of wedlock June 5, 1968. Pursuant to the provisions of The Pennsylvania Civil Procedural Support Law, Act of July 13, 1953, P. L. 431, as amended, Act of August 14, 1963, P. L. 872, § 1, 62 P.S. § 2043.31 et seq., appellant was summoned to appear before the court. He denied paternity and requested that blood groupings be performed. Bills of indictment were drawn by the Commonwealth charging appellant with the crimes of fornication and bastardy, Act of June 24, 1939, P. L. 872, § 506, 18 P.S. § 4506, and neglect to support a bastard, Act of June 24, 1939, P. L. 872, § 732, 18 P.S. § 4732. Prior to the date set for trial, appellant's counsel and the District Attorney's office "agreed" that the Commonwealth would enter a nolle prosequi and that the paternity issue would be tried under The Pennsylvania Civil Procedural Support Law, supra, by a judge sitting alone. The Commonwealth's motion to nol pros. and appellant's motion to proceed civilly were denied by Judge Schwartz on the basis that Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), had established that a trial court did not have jurisdiction to try a contested paternity issue as a civil matter or to enter a support order without a prior determination in a criminal proceeding.
On April 27, 1970, appellant's renewed motion for a civil determination of paternity was denied.*fn1 At jury trial on the above indictments, a demurrer was sustained on the charge of fornication and bastardy and appellant was found guilty of neglect to support a bastard. Appellant's motions for a new trial and in
[ 220 Pa. Super. Page 34]
arrest of judgment were denied and an order of support for the child was entered in the sum of ten dollars per week. Appellant appeals that order.
The question before us is whether a putative father must have the issue of his alleged paternity determined through a criminal proceeding for fornication and bastardy and/or neglect to support a bastard, or whether he may choose to have that issue decided as a civil matter under the relevant provisions of The Pennsylvania Civil Procedural Support Act, supra.*fn2 We conclude that Dillworth, supra, does not require that all putative fathers be tried in criminal proceedings. Rather, we read ...