No. 149 April Term, 1977, Appeal from the Order entered September 16, 1976 of the Court of Common Pleas, Family Division, of Allegheny County, at No. 120 of 1975.
William John Chapas, Pittsburgh, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, for appellant.
Michael Saltzburg and Richard K. Brandt, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Price, J., files a dissenting opinion. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.
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This is an appeal from the verdict of a civil jury in the Court of Common Pleas of Allegheny County, Family Division, in a paternity matter determining the defendant-appellant, James S. Cuff, to be the father of a child born out of wedlock; and from the denial of post-trial motions seeking to arrest judgment.
On or about January 14, 1975, the appellee, Ethel L. Matthews, filed a complaint against the appellant, James S. Cuff, under the Pennsylvania Civil Procedural Support Law, 1953 July 13, P.L. 431, as amended; 62 P.S. § 2043.31, et seq., requesting support of a child born out of wedlock, Todd Cuff (Todd Cuff Matthews on the Birth Certificate). Upon a denial of paternity by the defendant, Judge Louis J. Sparvaro entered an order on January 31, 1975 directing the issue of paternity to be tried before a civil jury.
Defendant entered an order to dismiss but withdrew it at the request of Judge Brosky who ordered a continuance pending the appeal which had been filed with the Supreme Court in McConnell v. Schmidt, 234 Pa. Super. 400, 339 A.2d 578 (1975) and the filing of criminal charges against the defendant by the plaintiff.
Paragraphs 3 and 4 of the motion for continuance provided as follows:
"3. That defendant demands that the issue of paternity be decided in a criminal proceeding which must be commenced as proscribed by the Pennsylvania Rules of Criminal Procedure.
[ 254 Pa. Super. Page 68]
"4. That if defendant is held for court, he demands a trial by jury in the Criminal Division and the right to file the appropriate pre-trial motions in any proceeding commenced against him."
On or about June 9, 1975, criminal charges under Section 732 of the Penal Code of 1939, 18 P.S. § 4732, Neglect to Support a Bastard Child, which charges were dismissed on January 26, 1976, pursuant to Pa.R.Crim.P. Rule 1100; i.e. the failure of the Commonwealth to commence trial within 180 days of the complaint. The criminal ...