200 Pa. Super. 22 | Pa. Super. Ct. | 1962
Opinion by
This is an appeal from an order of the County Court of Allegheny County directing the appellant to pay $10 per week for the support of his illegitimate child, then fourteen years of age. Jurisdiction of the matter ivas taken under the Allegheny County Court Act of 1911, P.L. 198, as amended, 17 P.S. 626(pp), providing for the County Court to take jurisdiction “(g) In all cases involving the support of a child born out of wedlock, where the father admits parentage, and where he is willing to support the child.” We have no difficulty in arriving at the same conclusion arrived at by the lower court, that the Legislature intended to give jurisdiction whenever the putative father admitted parenthood or where the alleged putative father was willing to support a bastard child, on the analysis of the law made by the lower court. We do note, however, that in the amending Acts of 1945, P.L. 184, and 1951, P.L. 1066, as well as the record of same in Purdon’s Digest of Statutes, 17 P.S. 626(pp), there is a comma after the word “parentage” and before the word “and” as shown above, which comma is omitted in appellant’s recital of the act in his brief.
Under section 506 of The Penal Code of 1939, June 24, P.L. 872, as amended, 18 P.S. 4506, as it existed at the time of appellant’s prosecution in the Quarter Sessions Court, as well as thereafter, fornication is made a misdemeanor subject to a fine of one hundred dollars ($100) ; and when a child is born a separate crime known as “fornication and bastardy” or simply “bastardy”, is committed. Commonwealth ex rel. Roberts v. Keenan, 170 Pa. Superior Ct. 282, 85 A. 2d 678; Commonwealth v. Rednock, 165 Pa. Superior Ct. 536, 69 A. 2d 447; Commonwealth v. Bertram, 143 Pa. Superior Ct. 1, 16 A. 2d 758. An additional sentence is provided for that crime, viz., the payment of the expenses of the birth and maintenance of the child, and its burial should it have died.
Section 732 of the 1939 Penal Code, 18 P.S. 4732, also imposes on the putative father the obligation to support his child born out of wedlock. We have interpreted a provision under the Act of 1917, P.L. 773, as amended, similar to section 732, as establishing a separate crime not barred by a previous conviction for the crime of fornication and bastardy involving the same child. Commonwealth v. Susanek, 88 Pa. Superior Ct. 428; Commonwealth v. Harry J. Morningstar, 82 Pa. Superior Ct. 425; Commonwealth v. Wibner, 73
The purpose of section 732 is well stated by Judge Hirt, at page 3, in Commonwealth v. Bertram, supra, “The act, in accordance with the modern trend, was designed to ameliorate the injustice of the common law in relation to the status and rights of illegitimate children, and to convert the moral duty of the father into a legal obligation to provide for their support and maintenance.”
Although the Quarter Sessions Court, in the fornication and bastardy proceeding, might have altered its original sentence as it was privileged to do under the amendment of 1951, September 28, P.L. 1543, 18 P.S. 4506 (pp), we place no significance on the fact that it did not do so in resolving the present issue. There is no overlapping of the order of the Quarter Sessions Court with that of the County Court.
Recently, in Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa. Superior Ct. 115, 184 A. 2d 291, and Commonwealth v. Martin, 198 Pa. Superior Ct. 355, 175 A. 2d 138, we recognized the father’s obligation to support his children and recognized that there are no
We have discussed section 506 and section 732 to emphasize the law’s recognizance of the obligation of putative fathers to support children born out of wedlock, fully recognizing that both sections are punitive in nature. Nevertheless, these sections establish the obligation. Section 731, relating to legitimate children, is likewise punitive; but in connection with it the Legislature established an additional summary
Jurisdiction in such proceedings was transferred from the Quarter Sessions Court of Allegheny County to the County Court of said County by the County Court Act of 1911, May 5, P.L. 198, §6, 17 P.S. 626(b). Kemnitzer v. Kemnitzer, 335 Pa. 105, 6 A. 2d 571; Commonwealth eco rel. v. Speer, 267 Pa. 129, 110 A. 268. However, prior to the Act of 1945, 17 P.S. 626 (pp), no summary proceeding existed for securing an order for support of illegitimate children; and when the Legislature decided to establish one in those cases where the putative father expressed a willingness to pay or where he admitted parenthood, it established that proceeding directly under the jurisdiction of the County Court of Allegheny County rather than initially under the jurisdiction of the Quarter Sessions Court with a subsequent transfer to the County Court, as was done in the case of section 731.
We find nothing unconstitutional with this arrangement, nor anything prejudicial to appellant. If an alleged putative father denies paternity and is unwilling to support the child, the County Court has no jurisdiction to determine support. If he expresses a willingness to pay, the action of the court is perfunctory and the matter of paternity need not be decided. However, if he admits paternity but expresses an unwillingness to pay, he is not deprived of his other defenses. He may establish lack of capacity to pay, voluntary payment of reasonable support, release by mother, Com. v. Patterson, 106 Pa. Superior Ct. 433, 162 A. 477, and such other matters as would prevent his conviction under the punitive provision of section 732; and furthermore, his payment of an order entered by the County Court would prevent his prosecution under said section.
Order affirmed.
Section 731 (18 P.S. 4731) limits prosecutions under it to eases of children under sixteen and others under twenty-one who are infirm or incapable of supporting themselves, but there is no such limitation in section 732. However, we need not decide the effect of this limitation since the child in this case is fourteen.