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CHERLYN CLARK v. GENE JETER (10/23/86)

filed: October 23, 1986.

CHERLYN CLARK, APPELLANT,
v.
GENE JETER



Appeal from the order of the Court of Common Pleas, Family Division, of Allegheny County, Family No. 83-6955.

COUNSEL

Eileen D. Yacknin, Pittsburgh, for appellant.

Craig A. McClean, Pittsburgh, for appellee.

Rowley, Wieand and Del Sole, JJ.

Author: Rowley

[ 358 Pa. Super. Page 552]

OPINION OF THE COURT

This is an appeal from an order dismissing appellant's complaint for support. Appellant, the natural mother of a child born on June 11, 1973, filed a support action on behalf of the child against appellee, the putative father of the child, in August, 1983, approximately two years and two months after appellee had last provided financial support for the child. Appellee filed an answer and new matter denying paternity and raising the six-year statute of limitations, 42 Pa.C.S. § 6704, as a defense. The trial court dismissed the petition because it was barred by the statute of limitations, because case law had held the statute to be constitutional, and because appellee engaged in no activity justifying the tolling of the statute of limitations.

Appellant has appealed from the order dismissing the action and argues: 1) that the trial court erred in concluding that the six year statute of limitations for support/paternity actions brought on behalf of children born out of wedlock does not violate the equal protection and due process clauses of the United States Constitution;*fn1 and 2) that the trial court erred in refusing to toll the statute of limitations based on appellee's abusive conduct towards appellant.

[ 358 Pa. Super. Page 553]

Following the filing of the appeal, the legislature enacted a new statute of limitations applicable to determinations of paternity relative to an action for support as follows:

§ 4343. Paternity.

(b) Limitations of actions. -- An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

Act of October 30, 1985, P.L. 264, No. 66, Subchapter C § 4343(b) [to be codified at 23 Pa.C.S. § 4343(b)]. Appellant petitioned the Superior Court to remand the case to the trial court prior to the Superior Court's disposition of the aforementioned issues so that the trial court could decide the issue of the retroactivity of the new statute, for if the new statute is to be given retroactive application, then the arguments raised on appeal are moot. Appellant's petition to remand was denied. However, we will address the issue of whether the 18 year statute of limitations should be given retroactive effect.

I.

A ...


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