No. 2274 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 2075 of 1979
Joseph L. Foley, Abington, for appellant.
James A. Cunningham, Gilbertsville, for appellee.
Brosky, Popovich and Montgomery, JJ. Popovich, J., files concurring statement.
[ 307 Pa. Super. Page 87]
This paternity action was commenced by appellant and dismissed by the court below following the filing of preliminary objections by appellee. The central question for our determination is whether the lower court erred in applying a two-year, rather than a six-year, statute of limitations. Finding that it did, we reverse and remand.
The relevant facts are as follows. A "paternity and support" complaint was filed by Virginia Bernhart in which she alleged that appellee Michael Kovach is the father of her daughter, Sara Bernhart, who was born on October 26, 1976. The lower court concluded that until January, 1977, appellee contributed $600 to the support of the child, although he denied that she was his.*fn1 The complaint was filed on May 17, 1979.
The applicable statute of limitations is found at 42 Pa.C.S.A. § 6704(e)*fn2 which provides:
(c) 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 acknowledgment by the reputed father.
[ 307 Pa. Super. Page 88]
The lower court found that the voluntary payment in January, 1977 marked the beginning of a two-year statute of limitations, even though the action was brought within six years of the birth of the child. Appellee argues that the two-year statute of limitations comes into play when support payments are made, even if the effect is to shorten the six-year statute of limitations.
Although we have found no cases addressing this issue, we have been guided in our review of this case by this court's decision in Williams v. Wolfe, 297 Pa. Super. 270, 443 A.2d 831 (1982) (allocatur denied August 27, 1982). In that case, we held that the enactment of the new civil support statute provided a new and independent procedure for the enforcement of an existing and continuing right to receive support, and that this right was not extinguished by the repeal of the criminal statute of limitations in 1978. Most important to our decision in the present appeal, however, is the factual history of the Williams case.
The child for whom support was sought in Williams was born on September 17, 1973. The last contribution toward support was made on September 23, 1974. The complaint for support was filed on September 27, 1979, clearly ...