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MERLENE JORDAN v. JOSEPH GORE (06/12/81)

filed: June 12, 1981.

MERLENE JORDAN, APPELLANT,
v.
JOSEPH GORE



No. 602 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Erie County, Civil Action-Law, at No. 590-NS-1978.

COUNSEL

Marilyn Woolery, Erie, for appellant.

Michael J. Veshecco, Erie, for appellee.

Price, Brosky and Montgomery, JJ.

Author: Montgomery

[ 288 Pa. Super. Page 88]

This appeal was filed following the dismissal of the Plaintiff-Appellant's Petition for Support by the Court of Common Pleas of Erie County. We believe that dismissal was erroneous and shall reverse.

The record shows that in August, 1967, the Appellant instituted a criminal action against the Defendant-Appellee charging him with failure to support a bastard child. The

[ 288 Pa. Super. Page 89]

Appellant sought such support for a child born to her on March 18, 1967. On February 15, 1968, a trial on the charge was scheduled, and a jury empaneled. However the criminal charge was dismissed as the Appellant did not appear.

On August 15, 1978, the Appellant instituted the instant civil action against the Appellee for support for the same child. Appellant's Petition for Support alleged, inter alia, contributions by the Appellee to the child's support within the two years immediately preceding the commencement of the action.*fn1

The lower court, on May 29, 1979, granted the Appellee's Petition to Dismiss. The lower court's statement of reasons for its action is extremely brief. In it, the trial judge merely expresses the conclusion that the Appellant's civil action created a situation of double jeopardy for the Appellee. The trial judge also added that he was ". . . in accord with . . ." a memorandum of law filed by the Appellee in support of his Petition to Dismiss. The Appellee's memorandum was itself very brief. In addition to raising the double jeopardy argument, the Appellee noted in that document the contentions that the Appellant's original action was quasicriminal in nature and that: "Therefore, there is (sic) collateral

[ 288 Pa. Super. Page 90]

    estoppel, double jeopardy, autrefois acquit and res judicata." Further, in his legal memorandum, Appellee cited, out of context, only part of § 6704, when he recited that: "All actions commenced under this section shall be brought within SIX (sic) years of the birth of the child . . ." Appellee did not specifically mention that he was raising any claim of a statute of limitations bar, but we can only guess that he thereby attempted to do so. Because of the brevity of the lower court's written explanation of reasons for its ruling, and the words used, we must assume that it found all of these contentions to be valid in supporting the ...


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