
    Commonwealth v. Felbaum
    
      
      George A. Conti, for prosecutrix.
    
      R. H. Buchman, for defendant.
    May 16, 1973
   MIHALICH, J.,

This case is before the court en banc for disposition of defendant’s exceptions to the vacating of the order of court dismissing the prosecution against defendant.

On October 10,1973, the court entered an order of court dismissing the case for failure to prosecute. Thereafter, prosecutrix filed an answer to a rule made absolute by the October 10, 1973 order. She also filed a petition to vacate the October 10, 1973 order. After hearing, the court vacated the October 10, 1973 order and granted leave to prosecutrix to make answer.

Defendant contends that since the order to dismiss was absolute, the court erred in vacating that order. The petition of prosecutrix points out that the rule to show cause why prosecution should not be dismissed was never served upon her and, in fact, her first awareness of said rule came on September 26, 1973. Prosecutrix filed an answer to the rule prior to the expiration of the 20 days from her first awareness, but two days subsequent to the granting of the final order. Since the rule was never properly served upon prosecutrix, the court properly entertained her petition to vacate the final order of October 10, 1973.

Defendant further contends that the law on failure to support a child born out of wedlock and for the support of bastards is unconstitutional.

Defendant has submitted for the court’s inspection a brief filed by the Commonwealth’s Attorney General, stating that above-cited acts are in violation of article 1, section 28 of the Pennsylvania Constitution, forbidding the type of sex-based classification appearing in the statutes in question. However, the court will point out that the act covered by the Attorney General’s brief is that of fornication and bastardy and not failure to support a bastard child. In fact, the brief specifically states at p. 37:

“Additionally, there is also the Act of 1973, Dec. 6, P.L., No. 334, §1, eff. June 6, 1973 (18 C.P.S.A. §4323) which provides a criminal sanction for failure to support a bastard child. This particular provision replaces the Act of 1939, June 24, P.L. 872 §§506, 732, as amended (18 P.S. §4506, 4732).”

For these reasons the court will enter the following

ORDER

And now, May 16, 1973, it is hereby ordered, adjudged and decreed that defendant’s exceptions are dismissed.  