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CYNTHIA H. v. MILTON M. (06/01/84)

filed: June 1, 1984.

CYNTHIA H., APPELLANT,
v.
MILTON M.



NO. 733 PHILADELPHIA, 1982, Appeal from the Order of February 19, 1982, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. W.D. 82883.

COUNSEL

Joseph C. Mansfield, Philadelphia, for appellant.

Gary M. Rose, Philadelphia, for appellee.

McEwen, Beck and Hoffman, JJ.

Author: Beck

[ 328 Pa. Super. Page 334]

This is a paternity and support action. Appellant Cynthia H. appeals from the February 19, 1982 Order of the Court of Common Pleas, Philadelphia County, Family Court Division, denying her petition for reconsideration of the court's December 11, 1981 Order dismissing her complaint on the ground that the statute of limitations on her claim had run. On appeal, she contends that appellee Milton M. waived the right to plead the statute of limitations defense by his delay of nearly two years in filing an answer raising the defense and by his other actions during that time period. We disagree and therefore affirm.

The facts in this case are uncomplicated. Appellant gave birth to a child, Margaret H., on March 15, 1973. Appellant did not seek a legal determination of Margaret's paternity until December 11, 1979, when appellant filed her complaint for support in the instant case, naming appellee as the father. Because appellee did not acknowledge paternity

[ 328 Pa. Super. Page 335]

    or voluntarily contribute to Margaret's support, the limitations period applicable to this action is a six-year period commencing on the date of the child's birth.*fn1 The statute had therefore run nearly nine months prior to the filing of the complaint.

Appellee did not immediately file any responsive pleading to the complaint, but on March 20, 1980, he appeared and denied paternity. On June 26, 1980, while represented by counsel, appellee entered into a blood test stipulation with appellant. The stipulation provided that HLA blood studies would be conducted, with appellee and the county to split the costs initially. If the tests excluded appellee, the action was to be withdrawn and appellee reimbursed for his share of the costs; but if appellee was not excluded, he was to reimburse the county for its share of the costs and the test results were to be admitted into evidence.*fn2 The case was then continued three times at appellee's request. The first continuance was to obtain counsel, and the others to obtain appellant's hospital records. Only on October 23, 1981, did appellee file an answer with new matter including the affirmative defense of the statute of limitations. The court took the case under advisement, and the orders discussed above dismissing appellant's complaint were entered. In finding appellant's complaint barred by the statute of limitations, the court held that appellee's entering into the HLA stipulation, requesting continuances, and long-delayed filing of his answer did not constitute a waiver of the statute.

The issue before us therefore is whether the lower court correctly concluded that appellee had not waived his right to raise the bar of the statute of limitations. We note at the outset that appellee's untimely answer did not expressly violate the Rules of Civil Procedure applicable to

[ 328 Pa. Super. Page 336]

    support actions. Pa.R.C.P. 1910.7(a) provides that in support actions, no responsive pleading is required of the defendant.*fn3 Support actions are not governed by Pa.R.C.P. 1030, requiring the defense of the statute of limitations to be raised in a responsive pleading under "New Matter," or by Rule 1026, requiring responsive pleadings to be filed within 20 days after service of the complaint. The defendant is, of course, permitted to plead to the complaint if he so chooses. See Explanatory Note, Pa.R.C.P. 1910.7. The Note also recommends that "[a] defendant who wishes . . . to raise the statute ...


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