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PATRICIA A. HUMMEL v. JAMES C. SMITH (07/02/82)

filed: July 2, 1982.

PATRICIA A. HUMMEL, APPELLANT,
v.
JAMES C. SMITH



No. 505 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Domestic Relations Section, of Lebanon County at No. 1483 of 1980.

COUNSEL

David J. Brightbill, District Attorney, Lebanon, for appellant.

Kenneth Sandoe, Myerstown, for appellee.

Wickersham, Beck and Popovich, JJ. Beck, J., files a concurring opinion. Popovich, J., files a concurring statement.

Author: Wickersham

[ 301 Pa. Super. Page 278]

On October 8, 1980 Patricia A. Hummel filed an action in the Court of Common Pleas of Lebanon County against James C. Smith, alleging that they were the parents of Jason Michael Hummel, age six, born July 4, 1974, which child was born out of wedlock at the Good Samaritan Hospital in Lebanon. Patricia alleged also that James C. Smith had broken off the relationship between them when she was five months pregnant with Jason. She alleged further that she had received support in March of 1980 when Smith gave $30.00 toward the purchase of a bike for Jason and finally she alleged he had also given her $3.00 for Jason in July of 1980 on his birthday. She sought support for the child.

James C. Smith filed an answer in which he denied paternity. In new matter, he alleged that the action was barred by the statute of limitations. Thereafter, James C. Smith, defendant, filed a motion for judgment on the pleadings pursuant to Pa.R.C.P. No. 1034.

At the time Jason was born, on July 4, 1974, the then appropriate procedure was to file a criminal action under and pursuant to the Act of 1972. This act provided in part:

§ 4323. Neglect to support bastard

(a) Offense defined. -- A person is guilty 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, whether within or without this Commonwealth.

(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

[ 301 Pa. Super. Page 279]

    years of any such contribution or acknowledgment by the reputed father.

18 Pa.C.S. § 4323.

The criminal statute was repealed by the Act of April 28, 1978, P.L. 106, No. 46, § 3 and replaced by section 6701 et seq. of Title 42, Judiciary and Judicial Procedure, of the Pennsylvania Consolidated Statutes, enacted by the Act of July 9, 1976, P.L. 586, No. 142, generally effective June 27, 1978.

When Patricia A. Hummel filed her complaint for support on October 8, 1980 Jason Michael Hummel was more than six years of age and the appropriate procedure for determination of paternity was the procedure set forth in 42 Pa.C.S. § 6701 et seq. The new statute of limitations embodied in 42 Pa.C.S. § 6704(e) provides as follows:

(e) Limitation of actions. -- All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six 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 an action may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.

By order of court dated February 9, 1981, the Honorable G. Thomas Gates, President Judge of Lebanon County, granted defendant's motion and directed the clerk of court to enter judgment in favor of defendant, James C. Smith, and against plaintiff, Patricia A. Hummel. This order was issued without having granted a hearing of any nature to the plaintiff. We reverse and remand.

President Judge Gates decided this case before this court announced its decision in Williams v. Wolfe, 297 Pa. Super. 270, 443 A.2d 831 (1982) (Dissenting Opinion by Wickersham, J.). In Williams this court held that failure to file an action under the now repealed criminal statute, 18 Pa.C.S. § 4323, does not preclude filing a complaint under 42

[ 301 Pa. Super. Page 280]

Pa.C.S. § 6701 et seq. Because the Williams court decided that the new statute created an independent remedy with a six year statute of limitation it is of no significance that Patricia A. Hummel did not file a criminal action under the repealed law.

Yet Hummel's complaint was filed more than six years after the birth of her child and even under the new statute of limitation her complaint would be categorically barred but for her allegation that she received contributions towards the child's support within two years of the date of the filing of her civil complaint. This allegation triggers application of the provisions of 42 Pa.C.S. § 6704(e) which states "an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father."

Again after Judge Gates heard this case we handed down the case of Jordan v. Gore, 288 Pa. Super. 86, 431 A.2d 300 (1981), which involved similar circumstances. Appellant, Merlene Jordan, sought support for a child born to her on March 18, 1967 and instituted a criminal action against appellee, Joseph Gore, charging him with failure to support a bastard child. A trial on the charge was scheduled February 15, 1968, and a jury empaneled; however, the criminal charge was dismissed as appellant did not appear. More than ten years later, on August 15, 1978, appellant instituted a civil action against appellee for support of the same child, alleging, inter alia, contributions by the appellee to the child's support within the two years immediately preceding the commencement of the action. The lower court granted appellee's petition to dismiss, deciding that appellant's civil action created a ...


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