Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, Jan. T., 1969, Nos. 4115 and 4116, in case of Commonwealth ex rel. Hedwig Francine Kolodziejski v. Pasquale Aeriules Tancredi.
N. Atkinson, Jr., with him Jack M. Myers, and Zack and Myers, for appellant.
John Mattioni, with him Mattioni, Mattioni & Mattioni, for intervenors, appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Dissenting Opinion by Packel, J. Wright, P. J., and Cercone, J., join in this dissenting opinion.
[ 222 Pa. Super. Page 438]
This is an appeal from the lower court's rescission of its order dismissing criminal charges against appellant for fornication, bastardy, and neglect to support a child born out of wedlock. Appellant contends that the lower court improperly rescinded its order dismissing criminal charges against him, and that any further criminal proceedings in this case would be barred by the applicable statute of limitations. We agree with appellant that his prosecution on the above charges is barred by the statute of limitations.
It should be noted that the record in this case is very confused, and that the time that certain events occurred has been omitted where the dates have not been clearly established.
On October 10, 1967, complainant, Hedwig Kolodziejski, filed a complaint for support of her child,
[ 222 Pa. Super. Page 439]
Louis, under The Civil Procedural Support Law.*fn1 The complaint alleged that the complainant gave birth to Louis on October 26, 1966, and that appellant was the father of said child. A hearing on the complaint was held on November 20, 1967, with private counsel present for both parties. Appellant denied paternity, and at the conclusion of the hearing the Honorable Benjamin Schwartz, Judge of the then County Court, ordered that appellant be held for court on charges of fornication, bastardy, and neglect to support a child born out of wedlock. Appellant's bail was set at $300 by Judge Schwartz, and appellant signed his own recognizance bond.*fn2
At the time of the hearing before Judge Schwartz, the case of Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), was before the Supreme Court awaiting decision. The Supreme Court held in Dillworth
[ 222 Pa. Super. Page 440]
that a judge could not determine the paternity of an illegitimate child in a proceeding under The Civil Procedural Support Law because a putative father who denied paternity was entitled to a jury trial on that issue. Since The Civil Procedural Support Law contains no provision for trial by jury, Dillworth has been interpreted as requiring a criminal proceeding to determine paternity, with all the safeguards for the rights of the defendant that a criminal proceeding implies. See Commonwealth v. Jacobs, 220 Pa. Superior Ct. 31, 279 A.2d 251 (1971). If a defendant does not contest paternity, however, he may be ordered to pay support under The Civil Procedural Support Law without a prior criminal conviction on the charges of fornication and bastardy. Commonwealth v. Jacobs, supra.
Proceedings in the instant case were delayed until Dillworth was decided by the Supreme Court. After Dillworth, appellant, who denied paternity at the hearing on the civil complaint, had to be tried in the criminal courts for fornication and bastardy in order to establish his liability for support. A court representative, therefore, attempted to convert the civil complaint into a criminal complaint sometime after October, 1968, by assigning the complaint a ...