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filed: March 26, 1982.


No. 192 March Term, 1979, appeal from Order dated September 12, 1979, Court of Common Pleas, Civil Division, Adams County, at No. DR-147-79(R)


Samuel E. Teeter, Assistant District Attorney, Gettysburg, for appellant.

John R. White, Gettysburg, for appellee.

Cercone, President Judge, and Spaeth, Hester, Wickersham, Brosky, Johnson, Popovich, DiSalle and Shertz, JJ. Brosky, J., files a concurring opinion. Popovich, J., files a concurring statement. Wickersham, J., files a dissenting opinion. DiSalle and Shertz, JJ., did not participate in the decision of this case.

Author: Johnson

[ 297 Pa. Super. Page 271]

This appeal concerns whether a civil action for support of a non-marital child is barred by the running of a two-year criminal statute of limitations when paternity is denied. This case was ordered argued along with Commonwealth ex rel. Johnson v. King, 297 Pa. Super. 431, 444 A.2d 108 (Pa. Super.Ct.) because of the similarity of issues.

Appellant filed a complaint for support of her illegitimate child born September 17, 1973, pursuant to 42 Pa.C.S.A. § 6701 et seq., alleging Appellee to be the putative father. The Complaint was filed April 4, 1979 in Franklin County and transferred to Adams County pursuant to the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.C.S.A.

[ 297 Pa. Super. Page 272]

§ 6741 et seq. Her Complaint alleged, inter alia, that Appellee had acknowledged paternity in writing and had contributed to the child's support as late as September 23, 1974.

Appellee filed an Answer and New Matter on April 27, 1979, denying paternity and raising the two-year statute of limitations as an affirmative defense to the action. The said statute of limitations, 18 Pa.C.S.A. § 4323(b), required:

§ 4323. Neglect to support bastard

(b) Limitation of action. -- All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.*fn1

The lower court then granted Appellee's Motion for Judgment on the Pleadings, relying on its earlier decision in a similar case, Dettrey v. Keckler, 10 D & C3d 610, 20 Adams L.J. 194 (1979).

Since we here determine that the repeal of the criminal statute of limitations never extinguished the civil right to support, the order granting judgment on the pleadings is reversed and the case will be remanded.

Appellant argues that the new six-year statute of limitations found in the provisions of 42 Pa.C.S.A. § 6704(e) should have been applied to her Complaint. Appellee argues that the two-year statute of limitations for criminal paternity actions had run on or about September 23, 1976 at the latest, and therefore, Appellant's action is forever barred because Appellee has disputed paternity.

The developments in the law concerning paternity and support of illegitimates must first be scrutinized in order to grasp the complexities involved in the instant appeal.

[ 297 Pa. Super. Page 273]

The 1953 enactment of the Civil Procedural Support Law*fn2 dealt only with legitimate children, until its amendment in 1963:

§ 2043.32 Definitions

"Duty of Support" includes any duty of support imposed or imposable by law or by any court order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance, prosecution for failure to support a child born out of lawful wedlock, or otherwise.*fn3

Prior to that point in time, paternity was determined by the institution of a criminal action, either for fornication and bastardy, 18 P.S. § 4506, or willful neglect to support a child born out of lawful wedlock, 18 P.S. § 4732.

However, our Supreme Court in Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968) determined that the amendment of the Civil Procedural Support Law was not intended to, and could not, eliminate a defendant's right to a criminal jury trial when paternity was at issue. Therefore, when paternity was contested, a criminal proceeding was an ancillary condition precedent to the right to recover support under the Civil Support Law, supra. Accord, Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa. Super.Ct. 202, 362 A.2d 1101 (1976).

Commonwealth v. Jacobs, 220 Pa. Super.Ct. 31, 279 A.2d 251 (1971) then held that where a defendant chooses a civil determination of paternity, he will be deemed to have waived his right to a jury trial, and both the paternity and support actions could be decided as a civil matter.

Therefore, a complainant was required to institute criminal charges within the criminal statute of limitations period of two years,*fn4 if paternity was in dispute, prior to the

[ 297 Pa. Super. Page 274]

    institution of a civil suit for support. And, if the criminal limitations period had run, a civil action could not be maintained, absent a waiver of the right to a criminal trial or admission of paternity, and complainant could be without recourse. See Commonwealth ex rel. Kolodziejski v. Tancredi, 222 Pa. ...

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