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COMMONWEALTH PENNSYLVANIA EX REL. MADELINE PUGH v. DONALD CALLAHAN (04/08/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 8, 1983.

COMMONWEALTH OF PENNSYLVANIA EX REL. MADELINE PUGH, APPELLANT,
v.
DONALD CALLAHAN, JR.

No. 22 Philadelphia 1982, APPEAL FROM THE ORDER ENTERED DECEMBER 4, 1981 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CIVIL NO. F-35-800

COUNSEL

Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellant.

Hans Edward Solum, Jr., Havertown, for appellee.

Brosky, Cirillo and Montemuro, JJ.

Author: Cirillo

[ 312 Pa. Super. Page 247]

This is an appeal from an Order of the Court of Common Pleas of Delaware County, dated December 4, 1981, dismissing the appellant's Petition for Support.

On March 24, 1981 the appellant, Madeline Pugh, filed a petition pursuant to 42 Pa.C.S.A. § 6701, et seq., seeking support for her minor child, Christopher Erslinger, from the appellee, Donald Callahan, Jr. The appellant alleged that the appellee was the father of Christopher who was born on March 1, 1977. The appellee denied paternity in an appearance before the Delaware County Domestic Relations Office on June 8, 1981. He likewise denied paternity before the Delaware County Court of Common Pleas on July 2, 1981. After declining to submit to a blood test, the appellee demanded a jury trial and was subsequently granted leave to file preliminary objections. On July 16, 1981 he filed a preliminary objection in the form of a demurrer, contending that the action was barred by the applicable statute of

[ 312 Pa. Super. Page 248]

    limitations. After argument before the Honorable Louis A. Bloom, the appellee's preliminary objection was sustained and the appellant's petition for support was dismissed upon a finding that the action was barred by the statute of limitations. This appeal followed.

The issue before this Court is whether the petition for support, filed on March 24, 1981, is governed by the six year statute of limitations contained in 42 Pa.C.S.A. § 6704(e),*fn1 and is therefore timely, or whether the two year limitation period prescribed by 18 Pa.C.S.A. § 4323(b) (repealed)*fn2 bars the petition which was filed some four years and two months after the birth of the child.

The Civil Procedural Support Law, amended in 1963,*fn3 imposed a duty to support illegitimate children. However, the Supreme Court in Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968) determined that this amendment did not eliminate a defendant's right to a criminal jury trial when paternity was at issue. Consequently, disputed paternity issues could be resolved by means of a criminal action for willful neglect to support a child born out of wedlock, or for fornication and bastardy, under the Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 4104 et seq. The Civil Procedural Support Law was amended, effective June 27, 1978 to

[ 312 Pa. Super. Page 249]

    allow a six year statute of limitations for civil support proceedings and to repeal the criminal statutes relating to paternity. The Judiciary Act Repealer Act (JARA) then repealed the civil support law and reenacted it in substantially the same form in the Judicial Code.*fn4

The trial court determined that the amended limitation period could not be applied retroactively and thus the statute of limitations was two years in this instance and the action should have been commenced by February 28, 1979. We do not agree. In the case of Williams v. Wolfe, 297 Pa. Super. 270, 443 A.2d 831 (1982), the petitioner filed a complaint on April 4, 1979 for support of her illegitimate child born September 17, 1973, pursuant to 42 Pa.C.S.A. § 6701 et seq. The respondent denied paternity and raised the two year statute of limitations as a defense. The court concluded:

In summary, we hold that the repeal of the criminal statute of limitations never extinguished the civil right to support, but only the ancillary criminal enforcement remedy. We also hold that an action commenced after the effective date of 42 Pa.C.S.A. § 6701 et seq., is not barred by the running of 18 Pa.C.S.A. § 4323(b), repealed in 1978.

297 Pa. Super. at 278-79, 443 A.2d at 835.

[ 312 Pa. Super. Page 250]

By repealing the criminal procedure for the determination of paternity and support, the Legislature has indicated its intention to relegate support proceedings exclusively to the civil jurisdiction of the courts. The two year limitation period contained in the now repealed criminal proceeding has no bearing on the present matter. The support petition was filed after the effective date of the amendment providing for a six year limitation period and prior to the expiration of the appellant's cause of action. Although the child was born when the two year limitation period was in effect, it is the time when proceedings are initiated that determines which law is controlling. See: Page 250} Williams v. Wolfe, supra; also: Commonwealth ex rel. Cassarella v. Mason, 13 Pa.D. & C.3d 713 (1979).

Hence, we find that the appellant had until February 28, 1983 to commence this present action.*fn5 The Order dated December 4, 1981 is reversed and the case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

Reversed and Remanded.


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