concurring:
I agree with the result reached by the majority, but for a different reason.
In both criminal complaints, appellant alleged that the defendant fathered the child sometime between January 1, 1975 and February 21, 1975. However, the second complaint charges failure to support this child over a later time period than was possible in the first complaint. Because Section 4323 is the offense of failure to support an illegitimate child, and not of fathering one,1 the two complaints thus charge two different and separate offenses. See Commonwealth v. Garris, 247 Pa.Super. 455, 458, 372 A.2d 914, 916 (1977).
*435Thus, the proper analysis here is not double jeopardy but whether this second prosecution is barred by the doctrine of collateral estoppel.
Under the circumstances of this case, state statutory collateral estoppel, 18 Pa.C.S.A. § 110, would bar this prosecution only if the prior prosecution ended in an acquittal or other termination which necessarily required a factual determination inconsistent with a fact which must be established in the second prosecution. Here, the first prosecution was terminated when the trial judge dismissed it upon his belief that Section 4323 was unconstitutional. As this disposition neither acquitted Kapp nor involved any factual determination on the merits, this second prosecution is not barred by Section 110. Furthermore, in light of the fact that the merits have never been tried, this second prosecution does not violate the constitutional collateral estoppel rule of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See Commonwealth v. Klinger, 264 Pa.Super. 21, 398 A.2d 1036 (1979) (HOFFMAN, J., dissenting).
. In fact, fornication and bastardy, Act of June 24, 1939, P.L. 872, § 506, is no longer a criminal offense in Pennsylvania. See Act of December 6, 1972 P.L. 1482, 1611; No. 334 Section 5(a).