Appeal from order of Court of Common Pleas of Potter County, No. 11 of 1974, in case of Commonwealth of Pennsylvania ex rel. Jennylou Yentzer v. Gary Carpenter.
John A. Duvall, for appellant.
Harold B. Fink, Jr., District Attorney, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Watkins, P.j., and Van der Voort, J., join in this dissenting opinion.
[ 240 Pa. Super. Page 204]
The issue presented in the instant appeal is not novel. Once again this Court must determine whether a suit for support of an illegitimate child pursuant to the Civil Procedural Support Law*fn1 can be maintained in the absence of a prior criminal determination of paternity,*fn2 a waiver by the putative father of his right to have paternity determined in a criminal proceeding, or an admission of paternity.
The facts are not disputed. On January 22, 1974, appellee brought an action for support of an illegitimate child in which she named appellant as the father. Appellant denied paternity and presumably requested that he be tried by a jury. At trial on May 16, 1974, appellant asked the lower court to charge that appellee had the burden of proving paternity beyond a reasonable doubt, but the court instructed the jury that paternity need be proved only by a preponderance of the evidence. Appellant contends that the charge was erroneous.
Pennsylvania precedent compels the conclusion that appellant be discharged for the simple reason that the court below did not have jurisdiction over the subject matter of this dispute.*fn3
It is necessary to set forth again the history of this confusing area of the law. The original enactment of the Civil Procedural Support Law did not include a duty to support a child born out of wedlock. In 1963, however,
[ 240 Pa. Super. Page 205]
the support law was amended to include within the definition of "duty of support," "any duty of support imposed or imposable by . . . prosecution for failure to support a child born out of lawful wedlock . . ."*fn4 In Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), a complaint was filed pursuant to the Civil Procedural Support Law. The lower court denied the putative father's request for a jury trial and issued a support order without making a finding of paternity. The Supreme Court reversed, holding that the 1963 amendment did not indicate that the legislature intended to "dispense with a jury determination of paternity." 431 Pa. at 486, 246 A.2d at 863.
In Commonwealth v. Jacobs, 220 Pa. Superior Ct. 31, 279 A.2d 251 (1971), our Court addressed the situation of a putative father who did not desire a jury trial in a criminal setting. We held that Dillworth does not prohibit civil jurisdiction unless the putative father has demanded trial by jury: " Dillworth emphasizes the defendant's right to such trial and the corollary proposition that this right may not be summarily refused even after the enactment of the 1963 amendment. . . . The Court in its brief opinion did not decide or even mention whether there were any impediments to trying the issue of paternity civilly under the procedure set out in The Pennsylvania Civil Procedural Support Act where the defendant wished to be so tried. Further, the Court emphasized throughout its opinion that it was not holding the 1963 Amendment either unconstitutional or without effect. As a specific example of when the Act could be utilized the Court referred to the instance in which the putative ...