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decided: November 4, 1982.


No. 22 W.D. Appeal Dkt. 1982, Appeal from the revised Order of April 12, 1982 of the Court of Common Pleas of the Sixth Judicial District at No. 87-NS-1981, as further amended by Order of May 13, 1982.


Ronald J. Susmarski, Jay S. Nedell, Erie, for appellant.

Frank Scutella, Timothy J. Lucas, Asst. Dist. Attys., Michael J. Veshecco, Dist. Atty., Erie, for appellee.

Thomas S. Kubinski, Erie, for County of Erie.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Flaherty

[ 499 Pa. Page 100]


This is an appeal from a decision of the Court of Common Pleas of the Sixth Judicial District which held unconstitutional a statute of limitations requiring that actions to

[ 499 Pa. Page 101]

    establish the paternity of a child born out of wedlock be commenced within six years of the birth of the child.*fn1 On September 9, 1980, Deborah Ann Astemborski, appellee, filed an application for support with the Commonwealth's Department of Public Welfare, and, in so doing, assigned to the Commonwealth all rights concerning support of her child. Accordingly, on December 30, 1980, she appeared at the intake office of the Erie County Domestic Relations Department and filled out a Complaint for Support which was dated and marked filed December 30, 1980. This complaint was taken to the Prothonotary in order to receive a civil number on January 29, 1981, fifteen days after the applicable six year statute of limitations had expired. The trial court held that the governing rule at the time required the complaint to be filed with the Prothonotary, not with the Domestic Relations Department. For this reason, the trial court concluded that the complaint was not timely filed, and the alleged father of appellee's child, appellant Robert Susmarski, moved for dismissal of the complaint. Dismissal was denied, however, as the court declared the statute of limitations invalid.

The primary issue*fn2 in the instant appeal is whether the six year statute of limitations violates equal protection guarantees

[ 499 Pa. Page 102]

    of the Fourteenth Amendment to the United States Constitution and of Article I, ยง 26 of the Pennsylvania Constitution. Since support for a child born in wedlock may be sought at any time during its minority, while support for a child born out of wedlock may, due to the statute of limitations on establishment of paternity, be sought during only the first six years of a child's life, a disparity of treatment is alleged to exist in violation of equal protection guarantees. Specifically, appellee contends that the statute imposes a burden with respect to illegitimate children that is not shared by legitimate children, and that this burden is not justified by the Commonwealth's interest in preventing the assertion of stale or fraudulent claims.

The issue raised by the instant case parallels that recently decided by the Supreme Court of the United States in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). In Mills, a Texas statute barring paternity suits brought on behalf of illegitimate children more than one year after their birth was held violative of equal protection. Justice Rehnquist, writing for the Court, thoroughly analyzed the considerations governing scrutiny, on equal protection grounds, of such statutes of limitation:

Our decision in Gomez [ v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973)] held that "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." 409 U.S. at 538, 93 S.Ct. 872 [at 875] 35 L.Ed.2d 56. Specifically, we held that a State which grants an opportunity for legitimate children to obtain paternal support must also grant that opportunity to illegitimate children. If Gomez and the equal protection principles which underlie it are to have any meaning, it is clear that the support opportunity provided by the State to illegitimate children must be more than illusory. The period for asserting the right to support must be sufficiently long to permit those who normally have an interest in such children to bring an action on their behalf despite the difficult personal, family, and financial circumstances that

[ 499 Pa. Page 103]

    often surround the birth of a child outside of wedlock. It would hardly satisfy the demands of equal protection and the holding of Gomez to remove an "impenetrable barrier" to support, only to replace it with an opportunity so truncated that few could utilize it effectively.

The fact that [the State] must provide illegitimate children with a bona fide opportunity to obtain paternal support does not mean, however, that it must adopt procedures for illegitimate children that are coterminous with those accorded legitimate children. Paternal support suits on behalf of illegitimate children contain an element that such suits for legitimate children do not contain: proof of paternity. Such proof is often sketchy and strongly contested, frequently turning upon conflicting testimony from only two witnesses. Indeed, the problems of proving paternity have been recognized repeatedly by this Court . . .*fn3

[ 499 Pa. Page 104]

Therefore, in support suits by illegitimate children more than in support suits by legitimate children, the State has an interest in preventing the prosecution of stale or fraudulent claims, and may impose greater restrictions on the former than it imposes on the latter. Such restrictions will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest . . . . The State's interest in avoiding the litigation of stale or fraudulent claims will justify those periods of limitation that are sufficiently long to present a real Page 104} threat of loss or diminution of evidence; or an increased vulnerability to fraudulent claims.

456 U.S. at 98-99, 102 S.Ct. at 1554, 71 L.Ed.2d at 776-777. (Emphasis added; footnote omitted, citations omitted).

Thus, to be sustained on equal protection grounds, a statute of limitations governing assertion of paternity claims must satisfy two related requirements. First, the period during which claims may be asserted "must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf." Id. at 99, 102 S.Ct. at 1555, 71 L.Ed.2d at 778. Second, the time limitation imposed "must be substantially related to the State's interest in avoiding the litigation of stale or fraudulent claims." Id. Examining this Commonwealth's six year statute of limitations in light of these requirements, we find no denial of equal protection.

Although the statute of limitations in question, as applied, results in there being greater impediments to the obtainment of support for an illegitimate child than for one born in wedlock, the support opportunity still accorded the former is not so truncated as to be, as termed by the Court in Mills, merely "illusory." Allowance of a six year period in which to institute a paternity claim does not so restrict support rights as to effectively extinguish them. Unlike Mills, wherein certain birth-related financial and emotional factors were cited as encumbering a mother's filing of a paternity suit within twelve months of her child's birth, the present case involves a period of limitation of such greater duration as to negate birth-related encumbrances. Furthermore, as pointed out by Justice Rehnquist in Mills, the existence of greater impediments to recovery of support for an illegitimate child than for a legitimate one is justified by the fact that the cases differ in one crucial respect: a suit on behalf of an illegitimate child contains the element of proof of paternity, while a suit on behalf of a legitimate child does not. While the passage of twelve months could not be regarded as appreciably increasing the likelihood of fraudulent claims, a lapse of more than six years may reasonably

[ 499 Pa. Page 105]

    be expected to coincide with prejudice to the defense through loss of evidence, the death or disappearance of witnesses, and the fading of memories. Hence, the Commonwealth's interest in elimination of stale or fraudulent claims is substantially served by the limitation imposed.*fn4

It is true that the legislative scheme of this statute will preclude certain claims from being successfully asserted. In the case at bar, the mother, representing her child, could have initiated a support action at any time prior to December 30, 1980, when she assigned her support rights to the

[ 499 Pa. Page 106]

Commonwealth. Because she neglected to do this, for whatever reason, her child is now prevented forever from asserting a successful claim for support against the alleged father, at least in the absence of any estoppel or statutory exceptions. We do not address the wisdom of the legislative scheme, but only its constitutionality. Since the statute is substantially related to a legitimate state interest, viz., the prevention of stale or fraudulent paternity claims, it is not constitutionally infirm under a Fourteenth Amendment challenge even though the statute may operate, as it has in this case, to deprive an illegitimate child of its right to make a claim for support beyond the six year limit.

Having determined that the court below erroneously held the statute of limitations barring appellee's claim for support to be unconstitutional, we reverse.

Order reversed.

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