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MCCONNELL v. SCHMIDT (04/22/75)

decided: April 22, 1975.

MCCONNELL
v.
SCHMIDT, APPELLANT



Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, No. 1607 of 1967, in case of Margaret A. McConnell v. E. Edward Schmidt.

COUNSEL

Gilbert E. Morcroft, for appellant.

Francis A. Muracca, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J., in Support of Per Curiam Order To Reverse. Spaeth, J., joins in this opinion. Concurring and Dissenting Opinion by Price, J. Van der Voort, J., joins in this concurring and dissenting opinion. Opinion by Jacobs, J., Dissenting In Part. Watkins, P.j., and Cercone, J., join in this opinion.

Author: Per Curiam

[ 234 Pa. Super. Page 401]

The order of the court below is reversed.

This court held two votes on this case. Initially, a vote was held on whether to hear this appeal on its merits, or to quash it as interlocutory. A majority of the Court, consisting of Hoffman, Price, Van der Voort, and Spaeth, JJ., voted to hear this appeal. Watkins, P.J., and Jacobs and Cercone, JJ., voted to quash this appeal as interlocutory. The full Court then voted on the merits of this appeal. A majority of the Court, consisting of Jacobs, Hoffman, Cercone and Spaeth, JJ., voted to reverse on the merits. Watkins, P.J., Price, and Van der Voort, JJ., voted to affirm.

Disposition

Order reversed.

Opinion by Hoffman, J., in Support of Per Curiam Order To Reverse:

Appellant, the putative father of three illegitimate children, contends that the lower court erred in ordering that the disputed question of paternity be tried by a civil jury where the statute of limitations on a criminal bastardy proceeding expired approximately nine years ago.

On June 27, 1967, appellee filed a complaint under the Civil Procedural Support Law*fn1 in the County Court of Allegheny County (now the Family Division of the Court of Common Pleas of Allegheny County). The complainant alleged that appellant was the father of her three children, and asked that appellant be ordered to make support

[ 234 Pa. Super. Page 402]

    payments for them. The three children were born on October 18, 1957; February 26, 1959; and May 5, 1963. Although the record indicates that an unsuccessful attempt was made to serve appellant with a warrant in December, 1967, or January, 1968, it appears that appellant was not actually served with process until approximately January 7, 1974. On January 10, 1974, a hearing was held to show cause why a support order should not be issued. Although appellant did not testify, his attorney appeared and denied that appellant was the father of the children. Appellant's attorney argued that because paternity was in dispute, the lower court could not make a determination that appellant was the father of the three children, consistent with the holding of Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968). On February 6, 1974, the lower court denied appellant's motion to dismiss this action, and ordered that the issue of paternity be certified to the lower court's Civil Division for trial by jury. This appeal followed.

Our Court held two votes on this case. Initially, a vote was held on whether to hear this appeal on its merits, or to quash it as interlocutory. A majority of the Court, consisting of Hoffman, Price, Van der Voort, and Spaeth, JJ., voted to hear this appeal. Watkins, P.J., and Jacobs and Cercone, JJ., voted to quash this appeal as interlocutory. The full Court then voted on the merits of this appeal. A majority of the Court, consisting of Jacobs, Hoffman, Cercone and Spaeth, JJ., voted to reverse on the merits. Watkins, P.J., Price, and Van der Voort, JJ., voted to affirm. This opinion announces the decision of the Court on both the appealability of the lower court's order and the merits of this case.

I

Before discussing the merits of this case, it is necessary to determine whether this Court has jurisdiction of this appeal. Ordinarily, the appellate jurisdiction of

[ 234 Pa. Super. Page 403]

    this Court is limited to appeals from final orders of lower courts.*fn2 The instant appeal is interlocutory, as neither party has been put out of court by the lower court's order, which calls for further proceedings in the Court of Common Pleas. See Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968).

In an appropriate case, we may entertain an interlocutory appeal as an exercise of our discretion under Section 501(b) of the Appellate Court Jurisdiction Act,*fn3 where it involves a controlling question of law about which there is a substantial difference of opinion. Section 501(b), however, provides that "[w]hen a court . . . in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such order." (Emphasis supplied.) Therefore, our discretion to allow an interlocutory appeal cannot be invoked unless the lower court first certifies that its order involves such a controlling question of law. The order of February 6, 1974, on appeal in this case, contains no such statement of certification. Thus, we cannot entertain this appeal under Section 501(b). Compare Commonwealth v. Guardiani, 226 Pa. Superior Ct. 435, 310 A.2d 422 (1973) (no statement of certification by lower court, appeal

[ 234 Pa. Super. Page 404]

    quashed) with Norman v. Norfolk and Western Ry. Co., 228 Pa. Superior Ct. 319, 322, n. 3, 323 A.2d 850, 851, n. 3 (1973) (matter certified by lower court).

Appellant may have believed that his appeal, although interlocutory and uncertified, was properly before our Court under the terms of the Act of March 5, 1925,*fn4 which provides that "[w]herever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court in the first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions, as the case may require; and the decision may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments." This appeal does not raise such a question of jurisdiction.

It appears that insofar as appellant attempts to raise a jurisdictional question, he is attacking the subject matter jurisdiction of the Common Pleas Court of Allegheny County, rather than the jurisdiction of the court over his person. If the Common Pleas Court lacked subject matter jurisdiction over the question of paternity in an action for the support of illegitimate children under the Civil Procedural Support Law, then it would follow axiomatically that such subject matter jurisdiction could not be created by consent of the parties, Appeal of Kramer, 445 Pa. 238, 282 A.2d 386 (1971), nor could the lack of such jurisdiction ever be waived, Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974) absent explicit statutory authority for such a waiver. Our Court has held, however, that a Common Pleas Court judge may determine a disputed issue of paternity in a Civil Procedural Support Law case if the putative father agrees to that procedure. Commonwealth v. Jacobs, 220 Pa. Superior Ct. 31, 279 A.2d 251 (1971). This holding taken by itself is sufficient to demonstrate that the lower court had subject

[ 234 Pa. Super. Page 405]

    matter jurisdiction of the instant action, at least in the technical sense of "the competency of a court to hear and determine controversies of the general nature of the matter involved. . . ." McGinley v. Scott, 401 Pa. 310, 316, 164 A.2d 424, 427 (1960). Thus appellant's objection does not go to subject matter jurisdiction and is not appealable under the Act of March 5, 1925.

This is not to suggest that, on the facts of record, the lower court may properly grant the complainant the relief demanded. The test of subject matter jurisdiction is "whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case: " Drummond v. Drummond, 402 Pa. 534, 538, 167 A.2d 287, 290 (1961).*fn5

As the instant appeal is interlocutory, uncertified, and does not raise a question of the lower court's jurisdiction, our Court would ordinarily order that it be quashed. Nevertheless, appellee has neither filed a brief nor challenged our jurisdiction in any way. The Appellate Court Jurisdiction Act, supra, n.2, art. III, § 503(a), 17 P.S. § 211.503(a), provides that "[t]he failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the hearing of the appeal, or within such earlier time as may be specified by general rule or rule of court, shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction

[ 234 Pa. Super. Page 406]

    of such appellate court, notwithstanding any provision of this act, or of any general rule adopted pursuant to section 505 of this act, vesting jurisdiction of such appeal in another appellate court." We have indicated that "[o]ur appellate jurisdiction extends to non-final orders . . . where . . . the appellee has waived an objection to the jurisdiction of the court" under the above-cited section of the Appellate Court Jurisdiction Act. Commonwealth v. Rucco, 229 Pa. Superior Ct. 247, 249, 324 A.2d 388, 389 (1974) (emphasis in original). In such a case, "we may, in our discretion refuse to exercise that jurisdiction." Rucco, at 250, 324 A.2d at 389. See Davidyan v. Davidyan, 229 Pa. Superior Ct. 495, 327 A.2d 139 (1974) (Majority exercised its discretion under § 503(a), supra, to quash the appeal as interlocutory; Spaeth, J., in a dissenting opinion in which Watkins, P.J., joined, stated that "[o]ur discretion would be better exercised by not quashing this appeal." 229 Pa. Superior Ct. at 504, 327 A.2d at 143.) In the instant case, it appears that we should exercise our discretion to allow this appeal to be decided on its merits. The parties have had an opportunity to present testimony and argument in a hearing of record before the lower court, and the lower court has written an opinion on the substantive point which has been taken on appeal. We should not put the parties to the expense of a jury trial without first deciding whether that proceeding is proper.

As the appellee has not objected to our taking jurisdiction over this interlocutory appeal, and as an opinion on the merits at this point would facilitate the speedy determination of this action, our Court should entertain this appeal on its merits.

II

Turning to the merits of this appeal, it appears that the lower court erred in ordering that the issue of paternity be determined in a jury trial in the Civil Division of the Court of Common Pleas.

[ 234 Pa. Super. Page 407]

The instant case is a link in a chain of decisions dealing with the interpretation of the 1963 amendment to the Civil Procedural Support Law, supra. As originally enacted in 1953, the section of the Civil Procedural Support Law relating to the "duty of support"*fn6 did not include any reference to a child born out of wedlock. The only way in which a duty to support an illegitimate child could be established was in a criminal prosecution, either for bastardy*fn7 or willful failure to support an illegitimate child.*fn8 In 1963, the support law was amended to include within the "duty of support" any duty "imposed or imposable by . . . prosecution for failure to support a child born out of lawful wedlock, or otherwise."*fn9 The Supreme Court, in Commonwealth v. Dillworth, supra, held that this section did not prevent a putative father from demanding a criminal jury trial on the issue of paternity. After Dillworth, our Court was faced with the problem of complainants who had erroneously commenced civil support proceedings, rather than criminal proceedings, for the benefit of illegitimate children between the time of the amendment of the Support Law and the decision in Dillworth. We ...


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