Com. ex rel. Morgan v. Smith

• Decision Date: 16 April 1968
• Citation: 429 Pa. 561,241 A.2d 531
• Parties: COMMONWEALTH of Pennsylvania ex rel. Elizabeth B. MORGAN v. George SMITH, Appellant.
• Court: Pennsylvania Supreme Court

Page 531

241 A.2d 531

429 Pa. 561

COMMONWEALTH of Pennsylvania ex rel. Elizabeth B. MORGAN v. George SMITH, Appellant.

Supreme Court of Pennsylvania.

April 16, 1968.

Melvin B. Goldstein, Samuel Kravitz, Philadelphia, for appellant

Stephen M. Feldman, Joseph G. Feldman, Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

The primary issue on this appeal is whether, in the absence of sufficient legal evidence upon which to base a finding of paternity, a person, who maintained a meretricious relationship with the child's mother, can be found liable for the support of the child because he stood 'in loco parentis' to ths child?

In August 1946, Elizabeth Brooks entered into a lawful marriage with Clarence Morgan, a marriage never legally dissolved. After living together for about four months, Morgan left his wife and disappeared. ¹ Of that marriage the record does not reveal affirmatively the birth of any children. In 1948, Mrs. Morgan entered into a meretricious relationship with one George Smith, a relationship which lasted until 1965. During the time in which they lived together at various addresses in Philadelphia, Smith, a merchant seaman, by reason of his duties, was required to be absent for considerable periods of time.

On March 1, 1956, a male child was born to Mrs. Morgan to whom was given the name 'George Smith, Jr.' On the line indicated in the child's birth certificate for the signature of the child's father, Smith had signed his name. When the child was two years old, Smith said to Mrs. Morgan 'Let's get married and give Georgie a good name.' On July 1, 1959, Smith and Mrs. Morgan went through a marriage ceremony at Elkton, Maryland, ² and, thereafter, continued to live together.

During the period within which Mrs. Morgan and Smith lived together, Smith contributed to the support of Mrs. Morgan and the child and paid for food, rent, clothing, medical bills, etc. On January 15, 1965, Smith stopped paying any support.

Mrs. Morgan, obviously at the behest of the relief authorities, instituted an action in the County Court of Philadelphia against Smith seeking support for the minor child. An examination of the petition, upon which this action is based, reveals that support is claimed from Smith Solely on the theory that he was the father of the child and not upon any theory of 'loco parentis'. The record reveals no basis upon which the 'in loco parentis' theory can be bottomed. The County Court found that Mrs. Morgan had failed to produce competent legal evidence of non-access on the part of her lawful husband and that Mrs. Morgan's failure to produce proof of non-access prevented a finding that Smith was the father of the child. The court, however, stated: '* * * nevertheless, we are of the opinion that (Smith) stood in the position of 'in loco parentis' to this child and should continue to maintain and support him as he has done from the time of the child's birth, March 1, 1956, until January 15, 1965.' Upon appeal from that support order, the Superior Court, by a 4--3 vote, affirmed the order. See: Commonwealth ex rel. Morgan v. Smith, 209 Pa.Super. 364, 228 A.2d 6 (1967). To the majority Per curiam opinion Judge Hoffman filed a dissenting opinion wherein Judge Montgomery joined and Judge Spaulding noted a dissent. The propriety of that judgment of the Superior Court is now before us.

We, initially, must direct our attention to the matter of procedure. The...