Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 65124 of 1970, in case of Commonwealth of Pennsylvania ex rel. Valentina Savruk v. Walter Derby.
C. George Milner, for appellant.
Stephen M. Karp, with him Ronald Ervais, and Becker, Fryman & Ervais, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs and Price, JJ., concur in the result.
[ 235 Pa. Super. Page 561]
Appellant, putative father, contends that appellee did not make out a case of paternity because she failed to produce sufficient competent evidence to prove non-access by her husband.
Appellee and her husband, Michael Savruk, resided together in Hamilton, Ontario, Canada, until 1966, when the husband filed for divorce on grounds of his wife's adultery. At some time during 1967, according to appellee, she left Canada with appellant pursuant to appellant's promise to marry her after both parties received final divorce decrees. The couple took up residence at 1233 Randolph Street in Philadelphia. Except for a brief period in 1968, appellant and appellee lived together and, again according to appellee's witnesses, represented themselves as husband and wife.
[ 235 Pa. Super. Page 562]
Around the end of 1968, appellee became pregnant and on July 30, 1969, she bore a child. The appellee's hospital expenses were paid for by Blue Cross and Blue Shield under appellant's coverage. The child, a boy, was named Waldermar Derby New Van DeDroucker, Jr., after the appellant. Shortly thereafter, the couple asked two of their friends to attend the child's baptism and to be godparents to the child. Both godparents and a third friend of the couple stated that appellant admitted being the child's father on several occasions.
Appellee's divorce from her husband became final in February, 1970. At some point in May, 1970, appellant disclaimed paternity of the child, stated that the infant was too small to be his, and demanded that appellee leave his house. He refused to furnish any additional support for the child.
On November 18, 1970, appellee filed a petition for support for her child. A preliminary hearing was held before Judge Schwartz, Philadelphia Court of Common Pleas, on March 18, 1971. At that time, the only evidence of non-access by appellee's husband was appellee's own testimony. Appellant's counsel objected and the hearing was continued until April 26, to enable appellee to present competent evidence on the issue of non-access. At that time, appellee presented three witnesses, none of whom knew Michael Savruk, but who testified that during the time they knew appellee they never saw her with her former husband. Although the action was initially brought as a criminal proceeding under the Penal Code*fn1,
[ 235 Pa. Super. Page 563]
the parties agreed to proceed under the Civil Procedural Support Law*fn2, and the criminal charges were nolle prossed. On June 26, 1974, Judge Canuso ordered the appellant to pay support in the ...