McConnell v. Schmidt

¶1Concurring and Dissenting Opinion by

¶2The substantive issue raised in this appeal is whether *411the determination of the paternity of children born out of wedlock is governed by the Pennsylvania Civil Procedural Support Law of 1953, Act of July 13, 1953, P.L. 431, §1 (62 P.S. §2043.31) et seq., as amended, Act of Aug. 14, 1963, P.L. 872, §1 (62 P.S. §2043.32) et seq., when paternity is disputed. The appellant, E. Edward Schmidt, contends that this determination must be made in a criminal proceeding1 before the applicable limitations period expires.

¶3The appeal from the order of court which certified this action to the Civil Division of the Court of Common Pleas of Allegheny County for a trial by jury on the issue of paternity purportedly raises the question of the court’s jurisdiction to hear the case once the criminal statute of limitations has run. The Pennsylvania Supreme Court has stated that when the bar of the statute of limitations is raised, the issue is not one of the court’s power to hear the case, but is rather an objection to the mode in which the case was brought before the court. Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969). That is, an allegation that an action is barred by the statute of limitations is a procedural bar to recovery, Goldstein v. Stadler, 417 Pa. 589, 208 A.2d 850 (1965), but does not affect jurisdiction. Consequently, the appeal could be quashed as interlocutory. See the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. III, §302 (17 P.S. §211.302).

¶4However, the issue presented by this appeal is of singular importance in that it involves a controlling question of law which could involve a substantial difference of opinion. Therefore, I concur in the entertaining of this appeal pursuant to this court’s discretionary powers of review, as outlined in the majority opinion.

¶5*412I cannot agree, however, with the majority’s determination of the merits of this case.

¶6The record indicates that on June 27, 1967, the ap-pellee-mother filed a complaint for support in the Family Division of the Court of Common Pleas of Allegheny County, alleging that appellant is the father of her three children, born out of wedlock. The children were born on October 18, 1957; February 26, 1959; and May 5, 1968, respectively. Appellant, who has never been married to appellee, was first served with notice of the pendency of this action circa January 10, 1974, one month after ap-pellee had filed a rule to show cause why a support order should not be entered. From the initial filing of the complaint on June 27, 1967, until the filing of the rule to show cause on December 10,1973, appellee did not pursue the entry of the requested support order.

¶7A hearing on the rule to show cause was held January 10, 1974. At this hearing, appellant appeared but did not testify. However, through his attorney, he denied paternity, questioned the propriety of a civil determination of the disputed paternity, and demanded a jury trial.2 The court entered an order on February 6, 1974, denying appellant’s motion to dismiss for lack of jurisdiction.3 In addition, the court certified the case to the Civil Division of the Court of Common Pleas for a jury trial.

¶8Judge Sparvero, in explaining his decision to certify the case to the Civil Division for a jury determination of paternity, stated:

“Here, the Statute of Limitations has run and the defendant has no criminal liability. The youngest of the three children is ten (10) years old. Thus, if this matter is referred to a Criminal Court, the de*413fendant may cite the Statute of Limitations as a defense. . . .

We believe that neither the Supreme nor the Superior Court intended to prohibit civil jurisdiction when the Statute of Limitations [for criminal action] has run.”

¶9I agree with Judge Sparvero’S sentiments, and would hold that when the criminal statute of limitations has expired, a jury convened in the Civil Division4 should be permitted to determine the issue of paternity.

¶10The leading case in this area, Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), holds that when a man demands a jury trial on the issue of his paternity, it must be granted, for this right may not be dispensed with unless the consent of both parties is obtained. However, Dillworth does not specify whether the jury trial must be conducted as a civil or criminal trial.

¶11I do not construe Dillworth as mandating a jury trial on the criminal side of the Courts of Common Pleas when the only issue to be determined is the paternity of the putative father and his consequent liability to support the children. I believe that a jury trial on the civil side will sufficiently protect the interest of the putative father, as long as the prosecutrix proves beyond a reasonable doubt that the alleged father sired the children. If this higher burden of proof is met, the putative father may then face a suit for support under the Civil Procedural Support Law, but no criminal conviction will appear on his record. In any event, a verdict against the father *414would have no consequence except that it would serve as a basis for imposing the obligation of support.

¶12In a case which raised the effect of Dillworth, Commonwealth v. Jacobs, 220 Pa. Superior Ct. 31, 34, 279 A.2d 251, 252 (1971), the court stated:

“We conclude that Dilhvorth, supra, does not require that all putative fathers be tried in criminal proceedings. Rather, we read that decision as a mandate to safeguard the right to jury trial (and the other protections afforded in criminal proceedings).”

¶13In Jacobs, the defendant-father had requested a civil determination of his paternity. The court found that he had waived the rights attendant upon criminal proceedings, and a non-jury hearing was held. The court noted futher that:

“By allowing the putative father the alternative of a civil determination, of both paternity and amount of support, the child’s interest will in no way be adversely affected. Where a defendant chooses a civil determination, he will be deemed to have fully waived his jury trial rights and all other protections ancillary to criminal proceedings including the right to have guilt proven ‘beyond a reasonable doubt.’ ” 220 Pa. Superior Ct. at 38, 279 A.2d at 254.5

¶14In the present situation, it is particularly necessary that a civilly-convened jury trial be held, because the criminal statute of limitations expired several years ago. Under the majority’s rationale, i.e., that only a criminal adjudication of paternity will serve as the basis for an award of support, a putative father in these circumstances will never be held liable for the support of his *415children. This unfortunate situation will prevail despite the fact that the Civil Procedural Support Law contains no statute of limitations, thus permitting a claim for support to be instituted at any time during the minority of the children. Clearly this result, wherein a father could never be legally required to support his children, is contrary to the intention of the legislature as evidenced by the Civil Procedural Support Law, a vehicle for obtaining such support.

¶15I would affirm the order of the lower court and remand the case for proceedings consistent with this Opinion.

¶16Van der Voort, J., joins in this concurring and dissenting opinion.

¶22Opinion by

¶23Dissenting In Part :

¶24This appeal was brought from the order of the court below certifying the issue of paternity for determination by the civil division of the court of common pleas in a jury trial. In my view, an appeal from such an order is interlocutory and should not be considered by this Court either as a matter within our discretion,1 as the majority holds, or as a question of jurisdiction.2

¶25In the present case, the complainant initially filed a civil complaint for support of her three children, naming appellant as defendant, in 1967. At that time the children were four, eight and ten years of age. The allegation in the complaint was that the defendant had not contributed to the support of these children for the preceding five years. A hearing was held on January 10, 1974. At the hearing, counsel for appellant entered on behalf of his *416client a denial of paternity and preliminarily objected to the jurisdiction of the court to hear the paternity issue. The lower court reserved its decision on the question of jurisdiction and heard the testimony of the complainant. The defendant did not testify but through his counsel cross-examined the complainant. Subsequently, an order was entered denying the defendant-appellant’s motion to dismiss for lack of jurisdiction, and granting a jury trial in the civil division of the court of common pleas to determine paternity. It was further ordered that should there be a finding of paternity, the matter would be returned to the family division to establish the amount of support. An appeal from the order was brought to this Court challenging the lower court’s finding of jurisdiction and certification of the issue to the civil division.

¶26Under the Appellate Court Jurisdiction Act, this Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas which are not within the exclusive jurisdiction of the Supreme or Commonwealth Courts. Act of July 31, 1970, P.L. 673, art. III, §302, 17 P.S. §211.302 (Supp. 1974-75). If authorized by law, an appeal can be taken from an interlocutory order to an appellate court which would have jurisdiction over a final order in the same matter. Act of July 31, 1970, P.L. 673, art. V, §501 (a), 17 P.S. §211.501 (a) (Supp. 1974-75). The standard accepted for determining appeal-able orders under the Act has been stated: “ ‘unless a special right to appeal is expressly given by statute, an appeal will lie only from a definitive order, decree, or judgment which finally determines the action.’ ” Brown Estate, 446 Pa. 401, 406, 289 A.2d 77, 79 (1972). (emphasis original), quoting from Stadler v. Mt. Oliver Borough, 373 Pa. 316, 317-318, 95 A.2d 776 (1953). Finality of an order or judgment is found when it effectively puts a defendant “out of court,” by precluding the proof of facts at trial which could provide a complete defense, Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 *417A.2d 353 (1968), or it otherwise terminates litigation between the parties by precluding either party from further action in that court. Marino Estate, 440 Pa. 492, 269 A.2d 645 (1970). Since the appeal in the present case is from an order certifying the question for trial in the civil division, and the defendant-appellant is clearly not deprived of his day in court, the appeal is interlocutory and cannot be reviewed by this Court unless allowed by some express statutory authority.

¶27The question therefore becomes whether the non-final order below falls within a specific statutory provision allowing appeals from interlocutory orders. Those members of the Court who would hear this appeal adopt the position that an appellate court can allow an appeal from an interlocutory order as a matter within its discretion. Two sections of the Appellate Court Jurisdiction Act permit an appellate court to exercise its discretion to accept an appeal. One, the Act of July 31, 1970, P.L. 673, art. V, §501 (b), 17 P.S. §211.501 (b) (Supp. 1974-75)3 allows appeals from interlocutory orders when the lower court has certified the question for appeal by stating in the interlocutory order itself that a controlling question of law is involved. The order in the present case contains no such certification, but simply transfers the issue to the civil division for a jury trial. Therefore, this section does not aid the appellate court in taking jurisdiction of this case.

¶28*418An appellate court is permitted to use its discretion in accepting an appeal under another section of the Appellate Court Jurisdiction Act. This section provides: “[t]he failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the hearing of the appeal... shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this act. . . vesting jurisdiction of such appeal in another appellate court.” Act of July 31, 1970, P.L. 673, art. V, §503(a), 17 P.S. §211.503(a) (Supp. 1974-75). Although the appellee in the present case failed to object to our Court’s jurisdiction of this appeal, it is my opinion that this section is not applicable to the present case. It appears from the wording of the section that an appellate court may accept an appeal which has not been objected to on jurisdictional grounds when the subject matter of that appeal may be within the jurisdiction of another appellate court. This section does not expressly give an appellate court the discretion to accept an interlocutory appeal absent certification from the court below. I would limit the application of the section to appeals from final orders where the question of jurisdiction between the appellate courts has not been raised, and allow an appellate court’s discretionary acceptance of a properly appealable question to perfect its jurisdiction even if the appeal should have been brought to another appellate court.

¶29Both before and after the passage of the Appellate Court Jurisdiction Act, the courts of this Commonwealth have held that the express authorization of law is required to allow an appeal from an interlocutory order. See Brown Estate, supra; Philadelphia v. William Penn Business Institute, 423 Pa. 490, 223 A.2d 850 (1966) ; Weste v. Grayson-Robinson Stores, Inc., 417 Pa. 6, 207 A.2d 851 (1965). Even consent of the parties does not give an appellate court jurisdiction of an interlocutory *419appeal absent a special right granted by statute. Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953). Statutes ordinarily recognized as permitting interlocutory appeals from non-final orders are the Act of March 5, 1925,4 (a question of jurisdiction is appealable), and section 501(b) of the Appellate Court Jurisdiction Act5 (Acceptance of appeal within appellate court’s discretion when certified by lower court). See Philadelphia v. William Penn Business Institute, supra; Commonwealth v. Guardiani, 226 Pa. Superior Ct. 435, 310 A.2d 422 (1973).

¶30My research does not reveal a single decision where section 503(a) of the Appellate Court Jurisdiction Act was relied upon as the basis for an appellate court’s exercise of discretion to accept an interlocutory appeal. To now permit such liberty would be contrary to the intent of the Act. As has been indicated above, the Act has provided for discretionary allowance of interlocutory appeals when the question is certified by the lower court. The parties are protected against harm that might result from the delay occasioned by such interlocutory appeal by the provision in that section that “ [a] petition for an allowance of an appeal under this subsection shall not stay the proceedings before the lower court . . . unless the lower court. . .or the appellate court or a judge thereof shall so order.” Act of July 31, 1970, P.L. 673, art. V, *420§501 (b), 17 P.S. §211.501 (b) (Supp. 1974-75). It would appear at least inconsistent that acceptance of interlocutory appeals would be so narrowly confined and controlled in one section, only to be liberally permitted in another. No protection against the suspension of litigation below is provided in section 503(a). The parties could in effect consent to the appellate court’s taking jurisdiction of interlocutory appeals, a practice never permitted previously,6 by not raising objections. This practice would encourage a multiplicity of appeals from non-final orders, brought in hopes of the appellate court’s acceptance of jurisdiction, thus inviting unending litigation. In my view, the general authorization provided for in section 503(a), allowing discrétionary acceptance of appeals rightfully in the jurisdiction of other appellate courts, should not be stretched to allow for the discretionary acceptance of interlocutory appeals.

¶31It is appellant’s further contention that the lower court lacks the jurisdiction to determine the question of paternity in a civil hearing. A question of the jurisdiction of a lower court, which has been determined by that court, can be appealed even though it is interlocutory. Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672 (1953). However, the question whether a case is to be heard by the civil division of the court of common pleas or whether it is to be decided in the criminal division in the same court is not a question of jurisdiction which can be the subject of an interlocutory appeal to this Court under the Act of March 5,1925.

¶32Before the 1968 amendment to the Pennsylvania Constitution, jurisdiction of disputes involving support of illegitimate children in which the putative father denied a parental relationship was in the quarter sessions court. See Commonwealth v. Pewatts, 200 Pa. Superior Ct. 22, 186 A.2d 408, allocatur refused, 200 Pa. Superior Ct. xxix *421(1962). The 1968 amendment abolished the quarter sessions court7 and provided for a consolidated court of common pleas having unlimited original jurisdiction in all cases, except as otherwise provided by law. Pa. Const. art. V, §5. The new consolidated court of common pleas now exercises the jurisdiction that had previously been in the quarter sessions court and the other diverse lower courts.8 Jurisdiction of the present controversy, which previously would have been in the quarter sessions court, is now properly in the court of common pleas. Cf. Stanis v. Simpson, 452 Pa. 57, 305 A.2d 29 (1973). Statutory provision has been made for several divisions within the court of common pleas of Allegheny County.9 “The Court of Common Pleas of Allegheny County established by the Judiciary Article shall consist of a civil division, a criminal division, an Orphans’ Court division and a family division. The present courts of oyer and terminer and general jail delivery and quarter sessions of the peace . . . are abolished and their present jurisdiction shall be exercised by the court of common pleas.” Act of December 2, 1968, P.L. 1142, §2, 17 P.S. §235.2 (Supp. 1974-75).

¶33*422It is clear from the governing statutes and constitutional provisions that the separate divisions of the court of common pleas do not each exercise a separate jurisdiction. Rather, the single unified jurisdiction of the consolidated court of common pleas is exercised through its separate divisions. Thus, although there may be a civil or criminal division to the court, there is no separate civil court, distinct from a criminal court. In determining which division is to hear the controversy, no question of jurisdiction is involved. It has been stated that “a question of jurisdiction over the cause of action can exist, appealable under the Act of 1925, only in the relatively rare situation where no ‘side’ of the court has the power and competence to entertain the action.” West Homestead Borough School Dist. v. Allegheny County Bd. of School Directors, 440 Pa. 113, 118, 269 A.2d 904, 907 (1970) (emphasis original). Although the court quoted above was discussing the lack of a jurisdictional distinction between the legal and equitable sides of the court of common pleas, the analysis is comparable to the present situation. Therefore, in the instant case, where the court of common pleas does have jurisdiction of the subject matter of the cause of action, the question of which division is to exercise that jurisdiction is not a question appealable to this Court.

¶34The appeal should be quashed as interlocutory.

¶35Watkins, P.J., and Cercone, J., join in this opinion.