Swavely v. Dick

12 Pa. D. & C.3d 497, 1979 Pa. Dist. & Cnty. Dec. LEXIS 121

• Court: Pennsylvania Court of Common Pleas, Cambria County
• Decided: November 26, 1979
• Docket: DR 664-1979
• Status: Published

Opinion

ABOOD, J.,

Rebecca Swavely gave birth to her daugher, Alicia, on August 16, 1974. On May 17, 1979, a complaint seeking support for the child was filed by Rebecca Swavely against Earl Dick, Jr. He denies paternity and has raised the statute of limitations by preliminary objection.

A letter written by defendant to plaintiff’s mother, wherein defendant stated that “Becky’s having my baby, ” has been introduced as an exhibit to the complaint to prove an acknowledgment of paternity. However the letter was dated July 22, 1974, several weeks before the birth of the child.

Therefore, has the statute of limitations run, thus barring the action and has it been properly raised by preliminary objections?

Ordinarily, a statute of limitations is considered an affirmative defense and should be pleaded under new matter. However there is a line of Pennsylvania cases that conclude that judicial economy advises considering the defense even if raised by way of preliminary objection. See, McDevitt v. Golin, 35 Pa. Commonwealth Ct. 409, 386 A. 2d 627 (1978); City of Phila. v. Shapp, _ Pa. Commonwealth Ct. _, 403 A. 2d 1043 (1979).

At the time Alicia Swavely was born (August 16, 1974) the controlling statute of limitations was two years and appeared in the Crimes Code, 18 C.P.S.A. §4323. This statute required all prosecutions for support to be brought within two years of the birth of the child, or within two years of (a) any voluntary contribution by the reputed father toward the support of the child; or, (b) an acknowledgment, in writing, of paternity.

This action for support has been brought by the plaintiff by the filing of a complaint on May 17, 1979. This date is not within two years of defendant’s acknowledging in writing that he is the father. The action is therefore barred by the statute of limitations.

The Judicial Repealer Act and/or the Judicial Code of 1978 does not save the action.

Accordingly, the following order is hereby entered.

ORDER

And now, November 26, 1979, the preliminary objections of defendant are hereby sustained and plaintiffs complaint is dismissed.