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REVELLA BOWSER v. THEODORE ZACHARY (07/25/88)

filed: July 25, 1988.

REVELLA BOWSER, APPELLEE,
v.
THEODORE ZACHARY, APPELLANT



Appeal From Order October 22, 1987, Court of Common Pleas, Family Division, Philadelphia County, No. 86-08855

COUNSEL

Malvin L. Skaroff, Philadelphia, for appellant.

Fern L. Kletter, Assistant District Attorney, Philadelphia, for appellee.

Cavanaugh, Wieand and Del Sole, JJ. Wieand, J., files a concurring statement.

Author: Cavanaugh

[ 375 Pa. Super. Page 482]

The issue in this case is whether the eighteen year statute of limitations under 23 Pa.C.S. § 4343(b) applies to a support action involving a child born out of wedlock on August 14, 1974 when the petition is filed after the effective date of the new statute of limitations. 23 Pa.C.S. § 4343(b) provides in part:

(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.

The Act of October 30, 1985, P.L. 264, No. 66, § 1, containing the above statute of limitations, repealed the statute of limitations established under 42 Pa.C.S. § 6704(e) and provided for an expanded limitation. The eighteen year statute became effective on January 28, 1986. The six year statute of limitations found in 42 Pa.C.S. § 6704(e) provided:

(e) Limitations of actions. -- All actions to establish the paternity of a child born out of wedlock brought

[ 375 Pa. Super. Page 483]

    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 acknowledgement by the reputed father.

Ravella Bowser gave birth to a son, Ortelin Bowser, who was born out of wedlock on August 14, 1974. The statute of limitations in effect when Ortelin was born was the six year statute under 42 Pa.C.S. § 6704(e). This statute has recently been declared unconstitutional as violative of the equal protection clause of the United States Constitution. Clark v. Jeter, U.S. , 108 S.Ct. 1910, 100 L.Ed.2d 465, (United States Supreme Court, Opinion filed June 6, 1988) reversing Clark v. Jeter, 358 Pa. Super. 550, 518 A.2d 276 (1986).

On August 1, 1986 Ortelin's mother commenced an action in support against Theodore Zachary alleging that he was the child's father and failed to support his child. Mr. Zachary filed an answer to the complaint contending that he was not the father of the child and he had never supported the ...


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