No. 1384 October Term, 1978, Appeal from the Order dated March 21, 1978 and Opinion dated May 26, 1978 in the Court of Common Pleas of Delaware County, Criminal Division, at No. 3638-A June Sessions, 1977.
Charles S. Frazier, Wayne, for appellant.
Robert L. Pinto, Media, for appellee.
Cercone, Hester and Hoffman, JJ. Hoffman, J., files a concurring opinion.
[ 266 Pa. Super. Page 430]
This court has before it the appeal of Commonwealth ex rel. Elizabeth P. Dimpter from the lower court's order under date of March 21, 1978, which quashed the criminal complaint dated June 30, 1977, brought against appellee, Robert Kapp.
The procedural history is as follows: On May 10, 1976, appellant-prosecutrix filed a criminal information against appellee under 18 Pa. C.S.A. 4323,*fn1 Neglect to Support Bastard, wherein it was alleged:
"Actor and Affiant did engage in sexual intercourse on a regular basis between January 1, 1975 until February 21, 1975, at 33 Chester Pike, Ridley Park, as a result of which
[ 266 Pa. Super. Page 431]
a daughter, Elizabeth Heidi Dimpter, was born on 9 November 1975; said Actor refuses to support said child."
Prior to indictment being found, appellee filed an Application to Quash the Transcript or to Remand to District Justice for Hearing and for Blood Test. On June 21, 1976, the return date, the following dialogue in open court took place:
THE COURT: Is your motion to quash a basis for testimony?
MR. PINTO: No, this is a paternity action brought against my client.
THE COURT: F and B or Neglect to Support?
MR. PINTO: Neglect to Support, ...