DocketNumber： 505
Judges： Wickersham, Beck, Popovich
Filed Date： 7/2/1982
Status： Precedential
Modified Date： 10/19/2024
On October 8, 1980 Patricia A. Hummel filed an action in the Court of Common Pleas of Lebanon County against James C. Smith, alleging that they were the parents of Jason Michael Hummel, age six, born July 4, 1974, which child was born out of wedlock at the Good Samaritan Hospital in Lebanon. Patricia alleged also that James C. Smith had broken off the relationship between them when she was five months pregnant with Jason. She alleged further that she had received support in March of 1980 when Smith gave $30.00 toward the purchase of a bike for Jason and finally she alleged he had also given her $3.00 for Jason in July of 1980 on his birthday. She sought support for the child.
James C. Smith filed an answer in which he denied paternity. In new matter, he alleged that the action was barred by the statute of limitations. Thereafter, James C. Smith, defendant, filed a motion for judgment on the pleadings pursuant to Pa.R.C.P. No. 1034.
At the time Jason was born, on July 4, 1974, the then appropriate procedure was to file a criminal action under and pursuant to the Act of 1972. This act provided in part:
§ 4323. Neglect to support bastard
(a) Offense defined.—A person is guilty of a misdemeanor of the third degree if he, being a parent, willfully neglects or refuses to contribute reasonably to the support and maintenance of a child born out of lawful wedlock, whether within or without this Commonwealth.
(b) Limitation of action.—All prosecutions under this section must be brought within two 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 a prosecution may be brought at any time within two*279 years of any such contribution or acknowledgment by the reputed father.
18 Pa.C.S. § 4323.
The criminal statute was repealed by the Act of April 28, 1978, P.L. 106, No. 46, § 3 and replaced by section 6701 et seq. of Title 42, Judiciary and Judicial Procedure, of the Pennsylvania Consolidated Statutes, enacted by the Act of July 9, 1976, P.L. 586, No. 142, generally effective June 27, 1978.
When Patricia A. Hummel filed her complaint for support on October 8, 1980 Jason Michael Hummel was more than six years of age and the appropriate procedure for determination of paternity was the procedure set forth in 42 Pa.C.S. § 6701 et seq. The new statute of limitations embodied in 42 Pa.C.S. § 6704(e) provides as follows:
(e) Limitation of actions.—All actions to establish the paternity of a child born out of wedlock brought 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.
By order of court dated February 9, 1981, the Honorable G. Thomas Gates, President Judge of Lebanon County, granted defendant’s motion and directed the clerk of court to enter judgment in favor of defendant, James C. Smith, and against plaintiff, Patricia A. Hummel. This order was issued without having granted a hearing of any nature to the plaintiff. We reverse and remand.
President Judge Gates decided this case before this court announced its decision in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) (Dissenting Opinion by Wickersham, J.). In Williams this court held that failure to file an action under the now repealed criminal statute, 18 Pa. C.S. § 4823, does not preclude filing a complaint under 42
Yet Hummel’s complaint was filed more than six years after the birth of her child and even under the new statute of limitation her complaint would be categorically barred but for her allegation that she received contributions towards the child’s support within two years of the date of the filing of her civil complaint. This allegation triggers application of the provisions of 42 Pa.C.S. § 6704(e) which states “an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father.”
Again after Judge Gates heard this case we handed down the case of Jordan v. Gore, 288 Pa.Super. 86, 431 A.2d 300 (1981), which involved similar circumstances. Appellant, Merlene Jordan, sought support for a child born to her on March 18, 1967 and instituted a criminal action against appellee, Joseph Gore, charging him with failure to support a bastard child. A trial on the charge was scheduled February 15, 1968, and a jury empaneled; however, the criminal charge was dismissed as appellant did not appear. More than ten years later, on August 15,1978, appellant instituted a civil action against appellee for support of the same child, alleging, inter alia, contributions by the appellee to the child's support within the two years immediately preceding the commencement of the action. The lower court granted appellee’s petition to dismiss, deciding that appellant’s civil action created a situation of double jeopardy for the appellee. We held that the dismissal of the criminal action had no bearing on the subsequent civil proceeding and provided no basis for the appellee’s attempt to avoid civil liability. We concluded:
Finally, we cannot affirm the lower court’s dismissal of this action based upon Appellee’s citation of part of the support statute which states that such actions may only be*281 brought within six years of the birth of the child for whom support is sought. The remainder of that statute further permits such suits to be brought‘. . , at any time within two years of any such contribution [of support to the child] or acknowledgment [of paternity] by the reputed father.’ As noted earlier, the Appellant’s Petition for Support alleged contributions by the Appellee to the child’s support within a two year period immediately preceding the institution of her action. Thus, the dismissal of her Petition, without any examination of the evidence, on the specific basis apparently argued by Appellee in his memorandum, was not correct.
Id., 288 Pa.Superior Ct. at 92-93, 431 A.2d at 303.
Therefore, Patricia A. Hummel should be allowed to prove her allegations of contribution. In Atkins v. Singleton, 282 Pa.Super. 390, 422 A.2d 1347 (1980) (opinion by Spaeth, J.), we said that the Commonwealth bears the burden of proving that the prosecution is within the statute of limitations. We pointed out, accordingly, that the Commonwealth (here Patricia A. Hummel) bore the burden of proving the alleged father had made some contribution to the child’s support within two years of the complaint. We said:
However, while we reject appellant’s argument concerning the necessity of evidence of a pattern of payments, we are persuaded that he is correct in maintaining that where only a single payment or contribution has been made, the evidence must show that it was made in circumstances from which it may reasonably be inferred that in making it, the father was recognizing the child as his own.
Section 4323(b) provides but two exceptions to the limitation period of two years from the birth of the child. These are either where the alleged father has ‘voluntarily contributed to the support of the child,’ or where he has ‘acknowledged in writing his paternity.’ Thus, voluntary contribution and acknowledgment of paternity are assimilated to each other. The plain implication is that the legislature regarded the one as essentially the same as the*282 other, and thus provided that proof of either would have the same effect of extending the period of limitations. It follows that if the evidence of the circumstances surrounding a voluntary contribution is insufficient to support a finding that the contribution amounted to an acknowledgment of paternity, it may not be held that the contribution extended the period of limitations. Thus, in Commonwealth v. Young [288 Pa.Super. 588, 419 A.2d 57], supra, the evidence of the circumstances surrounding the voluntary contribution of twenty dollars was held to have extended the period of limitations because it was sufficient to support a finding that the contribution amounted to an acknowledgment of paternity; the only reason the mother asked for the money, and the only reason the father paid it, was for the support of the child. See Commonwealth v. Teeter, [163 Pa.Super. 211, 60 A.2d 416] supra (letters of father indicated that payments were for child support). Similarly, in Commonwealth v. Boyer, supra [168 Pa.Super. 16, 76 A.2d 230], the evidence of the circumstances of the defendant’s visit to the hospital and his payment there to the mother was sufficient to support the finding that the defendant was acting in compliance with a parental obligation and therefore was acknowledging paternity.
Id., 282 Pa.Superior Ct. at 395-96, 422 A.2d at 1349-50.
Instantly, no hearing has been held in order to examine the evidence of Patricia A. Hummel as to the circumstances surrounding the two payments she alleges were made in 1980 towards the support of her child. Evidence of a single contribution of $10.00 has been held sufficient by cases interpreting the criminal statute of limitation. Commonwealth v. Teeter, 163 Pa.Super. 211, 60 A.2d 416 (1948). The evidence must show that the payments alleged by Patricia A. Hummel were made in circumstances from which it may reasonably be inferred that in making them, the father was recognizing the child as his own. Under the present posture of the record, Patricia A. Hummel has not yet had her day in court on that issue and we remand to give her such opportunity to prove her case.