Clark v. Jeter

• Decision Date: 18 December 1986
• Citation: 518 A.2d 276,358 Pa.Super. 550
• Parties: , 55 USLW 2327 Cherlyn CLARK, Appellant, v. Gene JETER.
• Court: Pennsylvania Superior Court

Page 276

518 A.2d 276

358 Pa.Super. 550, 55 USLW 2327

Cherlyn CLARK, Appellant, v. Gene JETER.

Superior Court of Pennsylvania.

Argued March 26, 1986.

Filed Oct. 23, 1986.

Reargument Denied Dec. 18, 1986.

[358 Pa.Super. 552] Eileen D. Yacknin, Pittsburgh, for appellant.

Craig A. McClean, Pittsburgh, for appellee.

Before ROWLEY, WIEAND and DEL SOLE, JJ.

OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order dismissing appellant's complaint for support. Appellant, the natural mother of a child born on June 11, 1973, filed a support action on behalf of the child against appellee, the putative father of the child, in August, 1983, approximately two years and two months after appellee had last provided financial support for the child. Appellee filed an answer and new matter denying paternity and raising the six-year statute of limitations, 42 Pa.C.S. § 6704, as a defense. The trial court dismissed the petition because it was barred by the statute of limitations, because case law had held the statute to be constitutional, and because appellee engaged in no activity justifying the tolling of the statute of limitations.

Appellant has appealed from the order dismissing the action and argues: 1) that the trial court erred in concluding that the six year statute of limitations for support/paternity actions brought on behalf of children born out of wedlock does not violate the equal protection and due process clauses of the United States Constitution; ¹ and 2) that the trial court erred in refusing to toll the statute of limitations based on appellee's abusive conduct towards appellant.

Following the filing of the appeal, the legislature enacted a new statute of limitations applicable to determinations of paternity relative to an action for support as follows:

§ 4343. Paternity.

(b) Limitations of actions.--An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child.

Act of October 30, 1985, P.L. 264, No. 66, Subchapter C § 4343(b) [to be codified at 23 Pa.C.S. § 4343(b) ]. Appellant petitioned the Superior Court to remand the case to the trial court prior to the Superior Court's disposition of the aforementioned issues so that the trial court could decide the issue of the retroactivity of the new statute, for if the new statute is to be given retroactive application, then the arguments raised on appeal are moot. Appellant's petition to remand was denied. However, we will address the issue of whether the 18 year statute of limitations should be given retroactive effect.

I.

A.

The Statutory Construction Act of 1972, 1 Pa.C.S. § 1926, provides, "No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." The new 18 year statute of limitations itself makes no provision for retroactive application, but provides only that the act shall take effect in 90 days. 1985 Pa.Legislative Service # 4, P.L. 264, No. 66, § 4 p. 106. However, when the legislature wants to make a statute retroactive, it clearly and unambiguously does so. For example, when the legislature amended the act providing for Commonwealth Court jurisdiction, it included a clause stating that the act "shall take effect immediately and shall be retroactive to December 5, 1980." Section 404(1) of Act 1982, December 20, P.L. 1409, No. 326. Not only does the 18 year statute of limitations for paternity/support actions not include language suggesting that it was intended to be applied retroactively, but there is no legislative history to support retroactive application of the act. Therefore, we hold that the 18 year statute of limitations for paternity/support actions is not to be applied retroactively.

We find support for our conclusion in Maycock v. Gravely Corporation, 352 Pa.Super. 421, 508 A.2d 330 (1986). In Maycock, 42 Pa.C.S. § 5533, which tolls the running of the statute of limitations for civil actions during minority, was held not to apply retroactively to a claim which had been barred under the previous statute of limitations in the absence of a clear intention of the legislature for the act to be retroactive. Although not identical to the new paternity/support statute of limitations, the statute of limitations involved in Maycock is similar in several material respects for determining retroactivity. Both statutes greatly expand the period during which a minor's cause of action can be brought; both conspicuously lack any indication that the legislature intended for them to be applied retroactively; and both provide a prospective effective date only. Therefore, just as the statute of limitations in Maycock is not retroactive, so too is the paternity/support statute of limitations not retroactive.

B.

Even if the statute were to be given retroactive effect, however, it could not revive appellant's cause of action and her complaint would still be time barred. Several courts of this Commonwealth have held that a retroactive statute of limitations can apply only to actions which have not been concluded or barred under the former statute. Upper Montgomery Joint Authority v. Yerk, 1 Pa.Cmwlth. 269, 274 A.2d 212 (1971). If the right to sue under the prior statute of limitations has not expired, then the new statute of limitations can be applied retroactively. In re Condemnation of Real Estate by Carmichaels, 88 Pa.Cmwlth. 541, 490 A.2d 30 (1985), interpreting Seneca v. Yale and Towne Manufacturing Co., 142 Pa.Super. 470, 16 A.2d 754 (1940). However, once the right to sue has expired, no subsequent legislation can revive it. Overmiller v. D.E. Horn and Co., 191 Pa.Super. 562, 159 A.2d 245 (1960).

In the instant case, the child was born in 1973, and the last voluntary support payment for the child from appellee was made in June, 1981, two years and two months prior to the filing of the complaint for support in August, 1983. The statute of limitations applicable when the Complaint was filed required the action to be commenced within six years of the birth of the child or within two years of the last written admission of paternity or voluntary payment of support. 42 Pa.C.S. § 6704(e). Thus appellant's cause of action expired in June 1983 when the child was ten years old and two years after appellee's last voluntary support payment. The new 18 year statute of limitations became effective in January, 1986, some two and one-half years after appellant's cause of action expired. Therefore, even retroactive application of the new 18 year statute of limitations would not affect appellant's rights.

II.

Having determined that the new statute of limitations shall not be applied retroactively and that even if it were applied retroactively, it would not remove the time bar on appellant's action, we now address the arguments raised by appellant as to why the six year statute of limitations should not be applied.

The six year statute of limitations provides:

(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.

42 Pa.C.S. § 6704(e). This act is included within the general provisions regarding support actions, and it applies only to an action to determine paternity brought pursuant to a support action. Therefore, it applies only to children born out of wedlock who must establish paternity prior to seeking support. It does not directly preclude all children from obtaining support after the six year period has run or after a putative father ceases to make voluntary support payments for two years, but only precludes children born out of wedlock from establishing paternity. However, because establishment of paternity is a prerequisite to a support order, the statute of limitations operates to deny children born out of wedlock the right to seek support long before they reach majority unless the child, through his guardian, has already had his paternity established.

Appellant argues that the six year statute of limitations deprives a child born out of wedlock the equal protection of the laws and therefore is unconstitutional. In Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), the Supreme Court held that the period during which support suits can be brought on behalf of illegitimate children must be sufficiently long to allow a reasonable opportunity for the claim to be brought and the limitation on such suits must be substantially related to the state's interest in avoiding the initiation of stale claims. In Mills, the court found a one year statute of limitations to deny equal protection; in Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), the court similarly found that a two year statute of limitations was unconstitutional. In Astemborski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983) the Pennsylvania Supreme Court held that in light of Mills and Pickett, the Pennsylvania six year statute of limitations on paternity/support actions for children born out of wedlock did not deny equal protection because six years provided ample opportunity for a support action to be brought after birth-related financial and emotional problems had subsided and because the state's interest in avoiding claims of paternity where the proof of paternity had become stale was substantially related to the six year statute of limitations.

Appellant recognizes that the Pennsylvania Supreme Court has held that the statute does not deny equal protection based upon Mills and Pickett. Appellant also recognizes that the Superior Court cannot overrule a decision of...