Patricia A. HUMMEL, Appellant, v. James C. SMITH.
Superior Court of Pennsylvania.
July 2, 1982.
447 A.2d 965
Argued Dec. 15, 1981.
Thus сontrary to the Commonwealth‘s argument, the guilty plea colloquy was inadequate in 1975. “[A] colloquy must indicate, at a minimum, that the defendant knew the essential protections inherent in jury trial....” Commonwealth v. Fortune, 289 Pa.Super. 278, 282-83, 433 A.2d 65, 67 (1981), quoting Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). Since the guilty plea colloquy failed to inform the appellant of his right to a jury trial and the record establishes no reasonable basis for trial counsel‘s failure to challenge the inadequate colloquy, the order of the lower court is reversed and a new trial is ordered.
Reversed.
Kenneth Sandoe, Myerstown, for appellee.
WICKERSHAM, Judge:
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 relаtionship 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. Thereаfter, James C. Smith, defendant, filed a motion for judgment on the pleadings pursuant to
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
years of any such contribution or aсknowledgment by the reputed father.
The criminal statute was repealed by the Act of April 28, 1978, P.L. 106, No. 46, § 3 and replaced by
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 рrocedure for determination of paternity was the procedure set forth in
(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,
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
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 thе 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 аffirm 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
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 hеr 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 appеllant‘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
other, and thus provided that рroof 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.
BECK, J., files a concurring opinion.
POPOVICH, J., files a concurring statement.
BECK, Judge, concurring:
I concur in the majority‘s holding that the failure of Patricia A. Hummel to file an action under the now repealed criminal statute,
However, careful consideration of the Equal Protection Clause of the United States Constitution, as well as the
In paternity suits the court must reconcile three distinct, and often competing, interests--the interests of the illegitimate child, the interests of the alleged father, and the interests of the state.
The private interests imрlicated here are substantial. Apart from the putative father‘s pecuniary interest in avoiding a substantial support obligation and liberty interest threatened by the possible sanctions for noncompliance, at issue is the creation of a parent-child relationship. This Court frequently has stressed the importance of familial bonds, whether or not legitimized by marriage,
....
The State admittedly has a legitimate interest in the welfare of a child born out of wedlock who is receiving public assistance, as well as in securing support for the child from those legally responsible. In addition, it shares the interest of the child and the defendant in an accurate and just determination of paternity ....
Little v. Streater, 452 U.S. 1, 14, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627, 637 (1981) (unanimous decision) (footnote deleted).
Historically, a statute of limitations has been invoked in paternity suits to promote “an accurate and just determination of paternity,” id., by “preventing the prosecution of stale and fraudulent claims ....”1 Habluetzel at —, 102 S.Ct. at 1556, 71 L.Ed.2d at 780 (O‘Connor, J., concurring). Consequently, the argumеnts favoring a statute of limitations have been that with the passage of time evidence either becomes unreliable as witnesses’ memories fade or becomes unavailable as witnesses move to foreign jurisdictions and photographs or documents are misplaced or destroyed. Id. at — n.9, 102 S.Ct. at 1556 n.9, 71 L.Ed.2d at 779 n.9.
But as the United States Supreme Court observed in Streater, the strength of these arguments has been dramati-
The ability of blood grouping tests to exonerate innocent putative fathers was confirmed by a 1976 report developed jointly by the American Bar Association and the American Medical Association. Miale, Jennings, Rettberg, Sell & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (1976). The joint report recommended the use of seven blood test ‘systems‘—ABO, Rh, MNS, Kell [K, k], Duffy [Fya, Fyb], Kidd [Jka, Jkb], and HLA [Human Leucocyte Antigen]—when investigating questions of paternity. Id. at 257-58. These systems were found to be ‘reasonable’ in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men. Id. at 254, 257-58.
... The importance of that scientific evidence is heightened because ‘[t]here are seldom accurate or reliable eye witnesses since the sexual activities usually take place in intimate and private surroundings, and the self-serving testimony of a party is of questionable reliability ....’
....
... [B]ecause of its recognized capacity to definitively exclude a high percentage of putative fathers, the availability of scientific blood test evidence clearly [is] a valuable procedural safeguard .... Unlike other evidence that may be susceptible to varying interpretation or disparagement, blood test results, if obtained under proper
Id. at 633-37 (footnotes deleted) (citations omitted).34
Pennsylvania has long accepted the utility and accuracy of blood group tests as a means of establishing non-paternity. [T]he first of the many thousands of reported cases in America on this subject (according to 163 A.L.R. 940) is Commonwealth v. Zammarelli, 17 Pa.D. & C. 229 (1931), in which the late Judge Morrow, of Fayette County, granted the defendant a new trial in a bastardy case because the uncontradicted evidence of a medical expert called by the
Modern Pennsylvania paternity suits are governed by the Uniform Act on Blood Tests to Determine Paternity (“Act“),
[i]f the court finds that the conclusions of all the experts as disclosed by the evidence based upon the [blood] tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accоrdingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.
Nevertheless,
As Judge Brosky stated in his Wolfe concurrence,
[t]here can be no doubt that both the mother and father of a child born out of wedlock have the duty to support such child. Commonwealth v. Rebovich, 267 Pa.Super.Ct. 254, 406 A.2d 791 (1979). To subject a child born out of wedlock to a limitation period, however reasonable, is to limit that child‘s unqualified right to recеive support from his father. As other jurisdictions have found, such limitation upon an illegitimate child‘s right to receive support violates the Equal Protection clause of the United States Constitution.
Wolfe, 297 Pa.Super.Ct. at 280, 443 A.2d at 836; Norris v. Beck, 282 Pa.Super.Ct. 420, 422 A.2d 1363 (1980).
Addressing the issue of disparate treatment of illegitimates, the United States Supreme Court has repeatedly found unconstitutional several state statutes which discriminate against illegitimates. For example, the rights of illegitimates beсame coextensive with those of legitimates in recovering damages in wrongful death actions [Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972)], in collecting insurance proceeds as a beneficiary under a state‘s workman‘s compensation system [Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973)], and in asserting the right to support from the natural father [Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978)].
Since the statute of limitations controlling a paternity suit effectively bars the right of an illegitimate child to have a support action against his natural fаther initiated throughout the child‘s minority and since the support claims of a legitimate child can be raised throughout the child‘s minority,
POPOVICH, Judge, concurring:
I agree with the result reached by the majority today. As this writer has stated previously in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) (Popovich, J. Concurring Statement), no statute of limitations constitutionally can preclude a child from asserting parenthоod during his minority.