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COMMONWEALTH EX REL. PATRICIA ANN ALLEN v. AUGUSTUS HENDERSON (05/28/82)

filed: May 28, 1982.

COMMONWEALTH EX REL. PATRICIA ANN ALLEN
v.
AUGUSTUS HENDERSON, APPELLANT



NO. 1178 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Family Division, Women's Branch, Philadelphia County, W.D. 73643.

COUNSEL

Phillip Lord, Philadelphia, for appellant.

Kenneth Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Beck and Lipez, JJ.

Author: Beck

[ 300 Pa. Super. Page 276]

This is an appeal from an order of the Court of Common Pleas, Family Division, requiring appellant to pay support to his illegitimate child in the amount of $15.00 per week. The court found at a civil trial that appellant was the father of appellee's child. Appellant questions the civil court's subject matter jurisdiction over the paternity action after he elected to have the matter heard in criminal court.

The instant action arose after appellee filed, on June 6, 1977, a petition for child support pursuant to the Pennsylvania Civil Procedural Support Law.*fn1 That support law was replaced by 42 Pa.C.S.A. § 6701 et seq., effective June 27, 1978, which makes a cause of action for paternity exclusively civil:

Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.

42 Pa.C.S.A. § 6704(g).

Prior to June 27, 1978, a defendant had a statutory right to proceed in a criminal forum in a paternity action under 18 Pa.C.S.A. § 4323. That section stated that a defendant could be convicted of a misdemeanor of the third degree "if he, being a parent, willfully neglects or refuses to contribute reasonably to the support and maintenance of a child born out of lawful wedlock . . . ." That statute carried with it a

[ 300 Pa. Super. Page 277]

    two-year statute of limitations. This Court in Williams v. Wolfe, 297 Pa. Super. 270, 443 A.2d 831, 833 (1982) (emphasis added) summarized the role of such a criminal proceeding prior to the effective date of 42 Pa.C.S.A. 6701 et seq. in a paternity determination: "[W]hen paternity was contested, a criminal proceeding was an ancillary condition precedent to the right to recover . . . ." That is, a civil court would be without jurisdiction if the civil action was brought after the expiration of the criminal statute of limitations period unless defendant waived his right to that criminal proceeding by opting for a civil adjudication of paternity or admitting his paternity. Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa. Super. 202, 362 A.2d 1101 (1976).

Section 4323 was repealed by Act of April 28, 1978 ("Repealer Act"), P.L. 106, No. 46, § 3(a), effective June 27, 1978. The Repealer Act preserved prosecutions already commenced under Section 4323 and also amended the Pennsylvania Civil ...


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