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filed: December 30, 1986.


Appeal from the Order of the Court of Common Pleas of Bucks County, Civil, at No. 80-0262.


Esther L. Hornik, Philadelphia, for appellant.

Michael S. Ramage, Philadelphia, for appellee.

Cirillo, President Judge, and Wickersham, Brosky, McEwen, Olszewski, Montemuro, Beck, Kelly and Johnson, JJ. Cirillo, President Judge, and Wickersham, McEwen, Olszewski, Beck and Johnson, JJ., join in this opinion by Montemuro, J. Brosky, J., files a concurring opinion by Brosky, J. Kelly, J., joins Judge Brosky's concurring opinion and also files a concurring opinion by Kelly, J.

Author: Montemuro

[ 359 Pa. Super. Page 521]

This appeal is before us on remand from the United States Supreme Court, Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986).

The underlying cause of action is a petition in paternity and child support filed by appellant on February 17, 1980, on behalf of her daughter, born out of wedlock on March 5, 1972. The petition designated appellee, George Ronald Herion, as the father of the child, and as a voluntary contributor to her support until April, 1975, at which point

[ 359 Pa. Super. Page 522]

    appellee's assistance ceased. In his Answer and New Matter, appellee raised as a defense the six year statute of limitations for such actions prescribed by 42 Pa.C.S.A. § 6704(e),*fn1 and moved for summary judgment. Appellant countered with an allegation as to the unconstitutionality of the statute on grounds of equal protection.

The lower court entered summary judgment in favor of appellee, finding that appellant's claim was in fact untimely, and that the constitutionality of § 6704(e) had been upheld by the Pennsylvania Supreme Court decision in Astemborski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983), thus invalidating appellant's equal protection thesis. This court affirmed. Appellant's allocatur petition to our Supreme Court was denied, and further appeal was brought in the United States Supreme Court, which noted probable jurisdiction, Paulussen v. Herion, 474 U.S. , 106 S.Ct. 224, 88 L.Ed.2d 223 (1985). Before a ruling was made, however, the statute of limitations for filing paternity actions was enlarged by the Pennsylvania legislature to eighteen years, effective as of January 28, 1986. 23 Pa.C.S.A. § 4343(b).*fn2 In February, 1986, on the basis of that statute, appellant filed a second petition for support and paternity which is still pending. During the interim, the Supreme Court remanded to this court for a determination of the new statute's effect upon the old, that is, "the legal consequences of the enactment of the new 18 year statute of limitations." Paulussen v. Herion, 475 U.S. 557, 106 S.Ct. 1339, 89 L.Ed.2d 521 (1986).

[ 359 Pa. Super. Page 523]

Appellant seems to suggest that we have before us the task of choosing between alternatives: either we declare § 6704(e) unconstitutional, or we find § 4343 retroactive. In this, appellant misapprehends the nature of the case. We need not rule upon the constitutional validity of the six year statute because our Supreme Court has already adjudged it sound. We may not, as appellant suggests, "take notice of the anticipated ruling of the United States Supreme Court," (Appellant's brief at 24) for to do so is tantamount to overruling Astemborski, supra. Nor are we compelled to apply § 4343 retrospectively. Precedents, even those most sympathetic to appellant's case, direct us otherwise.

In this regard, a brief survey of the development of the law respecting filiation actions is instructive.

Until the 1963 amendment to the Civil Procedural Support Law, 62 P.S. § 2043.31, et seq, the only avenues of relief for determination of paternity and support questions relating to out of wedlock children were through criminal actions for fornication and bastardy, 18 P.S. § 4506, or wilful neglect to support an illegitimate child, 18 P.S. § 4732. Because this court held, in Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), that the civil statute in no way affected a putative father's absolute right to a (criminal) jury trial where paternity was contested, enforcement of the act was possible only where a prior determination of paternity had been obtained through the criminal system within the two year limitation period of the criminal statute. Once the two years had elapsed without a ruling on the criminal side as to the paternity issue, the civil right to support was obliterated. Id.

In 1978, the criminal statutes affecting paternity and support were repealed, and 62 P.S. 2043.31 was passed extending the statute of limitations for commencement of such actions from two years to six years from the birth of the child, and not incidentally placing all questions relating to filiation strictly within the civil area. In 1980, the standard of proof in these cases was legislatively altered to require a preponderance of the evidence.

[ 359 Pa. Super. Page 524]

The motivating factor for passage of § 4343(b) is contained in the 1984 Child Support Enforcement Amendment to the Social Security Act, 42 U.S.C.A. § 666(a)(5), which mandated the institution in all states of "procedures which permit the establishment of the paternity of any child at any time prior to such child's eighteenth birthday." Id.

For guidance in the instant dilemma, we must look to cases concerned with the 1978 transition between the two and the six year statutes. Paramount among these is Williams v. Wolfe, 297 Pa. Super. 270, 443 A.2d 831 (1982), in which this court held that a paternity suit filed after the passage of the six year statute was not barred by the expiration of the two year criminal limitations period, which had been repealed. Implicit in the Williams rationale is the notion, later made explicit in Commonwealth ex rel. Pugh v. Callahan, 312 Pa. Super. 246, 458 A.2d 607 (1983), and Hatfield v. Hazelbaker, 306 Pa. Super. 555, 452 A.2d 863 (1982), that the statute in force when the complaint is filed is controlling as to timeliness.

We are bound by this conclusion, as there is no persuasive theory available to justify the application of a statute of limitations effective in 1986, to an action commenced in 1980. The court in Astemborski, supra, declined to address the wisdom of a legislative scheme which "prevented forever [a child] from asserting a successful claim for support." Id. 502 Pa. at 417-18, 466 A.2d at ...

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