*1 Jeffrey Paternity In re MENGEL.
James McGARRITY Kathy MENGEL. Appeal of James McGARRITY.
Superior Pennsylvania. Court
Argued Dec. 1980. May Filed *3 Nоrristown, James McGarrity, appellant, pro. per. Greenwood, Phoenixville, Allan did not file a brief on behalf of appellee. SPAETH, HOFFMAN,
Before BROSKY "JJ. BROSKY, Judge:
Appellant petition seeking filed a a declaratory judgment child, of whether he is the father of the He asked Jeffrey. that the court order blood tests to be taken to make this determination and that other relief be appropriate granted if he is , found to be the father. He alleged that he is the physically possible father and thаt the boy’s mother, appellee, the so claimed birth. prior Jeffrey’s Preliminary objections to his sustained and it petition were was dismissed.
The central issue before us is whether to obtain the relief through petition he seeks of The court declaratory judgment. lower found that he did not. We reverse disagree therefore the decision of the lower court and remand for further proceedings. an
Standing requires
to show a sub
aggrieved party
stantial, direct and immediate interest in the subject matter
of
litigation.
William Penn
Inc. v.
Parking Garage,
City
of
168,
464 Pa.
Pittsburgh,
(1975).
father has a cognizable and substantial interest obtaining of his custody children and that this interest is dеserving protection. Illinois, Stanley 645, 1208, 405 U.S. 92 S.Ct. (1972). L.Ed.2d 551 See: ex rel. State Rothstein v. Luther (Memorandum Social Services Opinion), 405 U.S. S.Ct. (1972). L.Ed.2d 786
This court has recognized the of unwed fathers. the case of Commonwealth ex rel. Peterson v. Hayes, Pa.Super. we held that whether an unwed father should have visitation is to be decided same standard as is in the applied legitimate case of children.
We wrote: Illinois,
In Stanley
645, 652,
405 U.S.
92
1208
S.Ct.
[1213],31
(1972),
L.Ed.2d 551
it was held that the interest
of a father in his illegitimate child was “cognizable and
Id.,
substantial.”
492,
252
at
Pa.Super.
extent on the tradi depends that this secondary position tional between the roles of and a differentiation a mother Id., 252 or enforced. longer accepted no be father can 491, 381A.2d at 1313. at Pa.Super. Walker, 165, Pa. Adoption A.2d 603 Suрreme right
our Court held that unwed fathers have the to contest adoption the their children. Title provided
Inheritance of unwed fathers are rights provides: P.S. 2107 which from (c) Child of of descent purposes by, father.—For wedlock, and born out of he be through person shall considered the child of his father when of the identity the father following has been determined in one of the any ways:
(1) If the the child born wedlock parents of out of shall have married each other.
(2) child, If the of the the father during lifetime his openly holds out child to be and receives home, child or into his holds the child out to openly his support for the child which shall be provides convincing determined clear and evidence. (3) convincing If there is clear and evidence that child, man father was the of the which include prior of paternity. court determination 1269, 303, 1, As Nov. imd. amended P.L. No. effective.2 he a declara-
Appellant argues obtain judgment and the relief seeks because tory supplemental he he is a determination that the child’s would confer him from upon that accrue He refers rights paternity. his right adoption inheritance contest of a child found to be as illustrative of fact that unwed father has to his children. respect C.D., (1971) Ind.App. 2. See also: A.B. v. N.E.2d 599 expectancy heir which the Indiana as an declaratory Court found that apparent present is a to maintain a interest sufficient judgment paternity. action to determine
191 seen, rights As we have unwed fathеrs do have the substantial, which refers. Those create in the one direct and immediate interest determination that is the father of a child. seeks of those Appellant protection rights via a action. 7531 Section provides Act3 that: Declaratory Judgments record, their shall respective jurisdictions, Courts within status, and other power rights, legal have to declare relations whether or not further relief is or could claimed. parent,
What seeks to establish is his status as relatiоn to the child of those legal protection and that accrue from this relationship. in While we find no case in which a Pennsylvania putative deter- judgment proceedings has used declaratory mine have been judgment proceedings paternity, declaratory legiti- utilized to determine and Pennsylvania parentage Louden, D macy. See Liddick v. 52 & C 402 Spencer Spencer, (1942). 47 D 192 & C 7541 of the Declaratory Judgments Section Act states relevant part: 7541. of subchapter. Construction
§
(a) General rule.—This
is
to be
subсhapter
declared
remedial. Its
is to settle and
from
purpose
to afford relief
status,
uncertainty
insecurity
respect
rights,
relations,
and other
and is
legal
to be
construed
liberally
added.)
administered.
(Emphasis
7537 of the
Section
Act
entitled
Discre
“Remedy
A 1976 amendment
tionary.”
origi
reenacts the
essentially
nal
of the
statute
language
Pennsylvania
and the Uniform
Act.4 The
section
limits
discretion that can be
clearly
9, 1976,
2;
July
ofAct
P.L.
No. 142
et
§
Pa.C.S.A. §
seq.
25, 1935,
April
26, 1943,
May
4. Act of
72 1
P.L.
and Act of
P.L. 645
§
again
1 amеnded former 12 P.S.
§
836. That section was
amended
9, 1976,
2;
July
the Act of
No. 142
P.L.
Pa.C.S.A.
additionally
language
which reenacted the
of the
Act and
grant
whether to
deciding
exercised
a court
*6
This court discussed
declaratory judgment.
of a
remedy
Melnick, 147 Pa.Super.
of Melnick v.
section in the case
we wrote:
(1942)
In
the Supreme
that a
Pfeiffer,
(1978)
case of Johannesen v.
ac-
judgment
declaratory
maintain a
putative father could
remedy
a
provided
shall not be
an alternative
that “the existence of
subchapter.”
ground
proceed
this
for the refusal to
under
child.
of an illegitimate
if
is the father
he
tion to determine
he is
which
rights
father has
that a
explaining
putative
which
rights
court discussed
protect,
entitled to
court
him to relief. The Maine
entitle
contends
adoption
to contest
right
held that inheritance
to seek
putative
which give
are rights
of his paternity.
of an
inheritance rights
discussing
adoption
After
court wrote:
unwed
the Johannesen
what other
point
not
at this
We need
decide
if
to assert
would be entitled
to the child
respect
that unwed
It
is now clear
he established paternity.
offspring
interests
their
fathers have important
*7
Illi-
v.
protection. Stanley
are entitled to constitutional
1208,
(1972).
Id. at 1114.
and, opinion, earlier in the statute
...
he
have under that
rights may
To protect any
have
father should be
to
[adoption],
permitted
a putative
his
his
while evidence of
status as
established
parent
has not
is still available even
the mother
though
Pfeiffer,
v.
proceedings. Johannesen
yet begun adoption
Me.,
(1978). Id. at 1114.
295,
Stroh,
(1974).
Wis.2d
The Court held that a Supreme Wisconsin father putative means which a proper ment action was can seek of his paternity. a determination Wisconsin, in
The court wrote that for establishing The specific statutory procedure only making provision children and parentage illegitimate care, in appears for their and maintenance custody [a support with the broad of the chapter dealing] problem dependents. 304,
Id. at
194 Illinois, v. cases, others, Stanley among
... Two recent 1208, 31 551 and 645, 405 92 S.Ct. L.Ed.2d (1972) U.S. Services, Lutheran 59 State ex rel. Lewis Social (1973) 826, effect, fa- recognized that Wis.2d N.W.2d fathers, to thers, right do have the including putative and, such, as have parent establish a natural they are right some and duties. parental C.D., A.B. v. Id. at 215 N.W.2d at See also: Everheart, Kendrick v. (1971); N.E.2d Ind.App. Fla., (1980). 390 So.2d was support putаtive
Because a action not available Slawek, court determined some other assert constitu- procedure must be to him to available tional The Declara- parentage. to establish natural right found tory provide procedure. Act was Judgments relating pursu- also a statute Pennsylvania support has 6767 of ant to can be determined.5 Section which paternity such Act, adjudica- for “Paternity” provides entitled tion support actions. Slawek, no statute provides
As was case in case, Jeffrey’s aid to instant mother In the appellant. in a of him and him. is not custody supports Appellant Act. position Support to institute under proceedings appel an action is available only institution such *8 lee, or has of custody one who the child.
It to that if could obtain appellant is note even important action, of the paternity support his in a adjudication to the longer is no bar remedy of such a availability of a granting declaratory judgment. Act 7541(b) Judgments pro-
Section оf the Declaratory vides: General Assem- remedy.—The of
(b) Effect alternative rendering bly principle finds and determines that where an relief unavailable in circumstances declaratory is remedy law or or a equity special statutory action at (1968).” Support Reciprocal Uniform Enforcement of Act “Revised 9, 1976, 2; seq. July Act et of No. 142 42 Pa.C.S.A. P.L. limited the of de- unreasonably availability available has relief and such is abolished. claratory principle hereby The of relief not be limited availability declaratory shall of 1 to provisions (relating statutory Pa.C.S. § remedy over remedy preferred law) common this provided subchapter shall be additional and cumulative to all other available remedies as except pro- (c). vided in subsection Where another is availa- remedy ble the of rath- declaratory judgment election remedy er than another available shall not affect remedy of parties, substantive and the court may рursu- venue, ant to rules general change require additional fix pleadings, the order of and take discovery proof, such other as action the interest of required justice. added.) (Emphasis exceptions (c)
None of the found in subsection apply this case.
As amended, most provides the statute also recently Section 7537 that “the existence of an alternative remedy shall not be a for the ground proceed refusal under this subchapter.” (Emphasis added.) if
Even the issue of his be raised in might paternity action, another such as type one amend the child’s birth certificate, or, as the trial court one to suggested, get rights, visitation can still appellant judg- seek declaratory ment of his paternity. determined
Having appellant obtain a we come to paternity, his contention his petition asserting “possibility” is sufficient. It is not. is as to controversy whether the child’s father. The declaration that is the “possible” father of does not end the as to Jeffrey uncertainty whether he is the father. The boy’s pеtition allege should paternity, it, not the possibility which is not at issue. we come to the trial court
Finally, appellant’s request order blood tests to determine the paternity question.
The Act on Blood Tests to Determine Paternity6 Uniform to all civil applies Section 6131 of the Act provides A is a civil action. matters. See: Act. Declaratory Judgments Section 7539 of the Act on Blood Tests to Determine Paternity Uniform provides: in which subchapter paterni- matter to this any subject fact, child is a relevant
ty, parentage or identity court its own initiative or made upon upon suggestion or or on may, behalf of whose blood is involved any person the action made time so upon motion of at a any party as not to shall order the delay proceedings unduly, mother, child and to submit to blood tests. alleged tests, If refuses to submit to such the court any party parentage identity resolve the or question paternity, a child such or enforce its order if the against рarty, so justice require. (Empha- others and the interests of added.) sis Section statute
The lower court was directed the aforesaid mother, child and who appellant, order blood tests of the is the alleged father. standing judg to seek
Appellant declaratory ment and other relief because of the appropriate obtain rights that to him as an unwed if he is found accrue action, he to be such. Because he has standing bring also has of blood tests. request ordering action, trial Since the motion comes from a to the party court must order the tests. who could
Appellant person asks that other “any in this action and blood possibly joined be the father” him, tests if the results of blood performed upon appellant’s test being Jeffrey’s do not exclude the of his possibility to make such an order. authority father. The court lacks provides: 7540 of the Act Declaratory Judgments Section 9, 1976, July 6131 et 6. Act of P.L. No. 42 Pa.C.S.A. seq. *10 or claim any who have parties be made All shall persons declaration, be affected the by which would interest not persons rights the prejudice no declaration shall proceeding. to the parties present the are affected rights whose persons
The only This is an action mother, appellant. child and action are the father; it is not one to is the appellant boy’s to determine if If the is not. if appellant who is the father determine father, then none is Jeffrey’s is judgment appellаnt that any refers had whom appellant fathers to the other possible child, none of them is for to the respect hand, appellant is that judgment the if the father. On other are father biological of the is then not proceeding. this intact and unaffected this action. Uniform is in properly joined No one else pro- therefore to Determine Paternity Act on Blood Tests child and on appellee, for tests authority only vides in the present alleged appellant, only who is action. and remand for lower court
We reverse the order of the whether ap- to determine proceedings declaratory judgment in to be ordered Blood tests are father. pellant Jeffrey’s Act on Blood the Uniform provisions accordance with Paternity. Tests to Determine
SPAETH, J., concurring opinion. files HOFFMAN, J., joins opinions. both SPAETH, concurring: Judge, appellant why in its majority explanation
I join he is as to whether judgment a declaratory to seek separately only I write or is not the father of Jeffrey. add the observations. following
-1- the fact allege must says The majority Strictly At 1163. of paternity. rather than the possibility because not reach this issue we need speaking amended his petition the lower court to add allegation that he is However, the father. N.T. 14-16. given statement, majority’s I wish to note opinion, my appellant’s original petition was sufficient. so, it has not
Although
always been
it is now clear
action
to determine a
brought
question оf fact as well as
question
of law. The Supreme
Liberty Mutual Insurance
held,
Court has so
Company
S.G.S. Company,
Friestad v.
(1974);
456 Pa.
and this has been holding codified in the new Declaratory Judgments Act, 9,1976, Act of 142, 2, 42 P.L. No. July 7539(a). See, Pa.C.S.A. Declaratory Judgments, Explana Note—1979, tory Pa.R.C.P. preceding 1601. actions
Declaratory judgment governed are the Rules Procedure, Civil which require pleading of facts. 1601(a), 1501, Pa.R.C.P. 1019(a). Appellant’s original peti- tion facts, however, did plead facts.1 These were not such as paragraphs appellant’s original petition 1. The relevant are as follows: McGarrity, residing 1. The Petitioner is James an adult individual Street, Norristown, at 900 DeKalb PA. is, Respondent, Kathy Mengel, 2. The and was at all times materi- hereto, Place, residing Bayless al an unmarried adult at 2036 Norristown, PA. Jeffrey Mengel residing 3. Bayless is an with his infant mother at 2036 Place, Norristown, PA. Jeffrey Mengel Respondent 4. is the child of and was born on December 1979. Upon belief, Jeffrey’s 5. information and no was named on Certifiсate, Respondent anyone Birth has not named as the birth, acknowledged paternity father since and no one has boy. Respondent 6. The Petitioner has sufficient contact with April Physically possible Jeffrey’s March and to make it that he is father. April Respondent 7. From last until mid-December the claimed petitioner only possible that was the her father of child. time, During Respondent 8. that held out Petitioner as father of family her child to and friends. time, During Respondent that claimed was fa- that Petitioner ther of her child under circumstances that made no sense to so claim unless Petitioner was the father. to know that he is the father of Jeffrey, enable petitioner but For the majority that he well be. only very say nevertheless, must that he is the father plead he must as fact litigant plead amounts to instructing believes he is uncertain about and that he something may not be fact. This instruction is inconsistent with the our of fact an underlying system pleading—that philosophy honest issues should be at the required statement instruction, stage. It is also an for pleading unnecessary is, more, appellant’s give without sufficient uncertainty him standing to an action. One who a father maintain has legal regarding Appel- his child. obligations lant is therefore entitled know whether he is the father of such, and as those Jeffrey obligations. See at 1164-1165. majority op.
The cases cited and the are differ- by appellant majority case, issue; ent from this for in them was not words, other the actions wеre not to resolve an issue about which the was petitioner uncertain. Thus in A.B. v. C.D., N.E.2d was not Ind.App. disputed that the was in plaintiff fact father. The issue was recognized whether he could be as legally given that the child *12 born to his was wife while she had been married to another man. The issue was much the same in Everheart, Kendrick 390 (Fla.1980). v. So.2d 53 And Stroh, Slawek v. 9 the 62 Wis.2d 215 N.W.2d mother, born, who was not married when the child was admitted that the was the petitioner disputed father but right legal to a with relationship the child. -2-
I agree with thе that not majority the lower court does have require to other authority anyone than appellant, appellee, and to submit to blood tests. Jeffrey Majority op. birth, Shortly Jeffrey’s Respondent 10. before told Petitioner that refused,
he was not the her father of child and and continues to refuse, paternity say to discuss the other than to an unnamed married individual is the father. Respondent voluntarily any 11. to submit tests has refused paternity determine the her of child. however, at 1168. I am unable to with the agree, majority’s statement that is that is Jef- judgment appellant “[i]f father, of frey’s possible then none the other fathers to whom refers had to the any rights respect child....” Id. at 1168.
The Act that “no Declaratory Judgments provides declara- tion shall prejudice parties not to the persons that on remand proceeding.” Suppose Pa.C.S.A. § evidence, the lower court determines on the basis tests, including the results of the blood that is the determination, father of desрite but that an- Jeffrey, other man files a action alleging he could be the father. It seems to me that the other man’s heard, action will have a finding and that in the present judicata action will not be res or otherwise a bar, as the suggests. Given this majority perhaps unlikely but nevertheless I troubling think we should be possibility, specific regarding the sort blood tests we have in mind.
The results of many by states statute the blood tests are admissible only when serve exclude man as the they See, father. g., e. Ark.Stats. 34-705.1. The reasoning when tests do not exclude the man as the father; does not follow is the that he not excluded although tests, he nevertheless still not be the father. However, techniques, particular modern human leukocyte “HLA,” antigen testing, often referred to as in- greatly Weeks, crease the of exclusion. probability Carlyon See au- (Fla.Dist.Ct.App.1980), So.2d the scientific thorities cited therein.
No decision has addressed the ad- Pennsylvania appellate of the results of HLA tests. missibility Commonwealth ex Singleton, rel. Atkins v. Pa.Super.
(1980), the results of HLA tests had been admitted
lower court.
did
not reach the issue of the
majority
of the results. The
admissibility
dissenting
assumed
opinion
*13
were
they
admissible but did not
discuss their
specifically
establish,
exclude,
use to help
rather than
the
of
possibility
Id.,
805,
282
at
201 Act on Blood the Uniform version of Pennsylvania 6131 et seq., 42 Tests to Pa.C.S.A. Paternity, Determine of found the statutes some not the language does contain a man as use tests to exclude the of blood restricting states should not that the statute the father. I therefore conclude of of the result limiting admissibility the be construed as a man the results exclude as tests cases in which the blood from conclusion that It to me to follow this father. seems order the lower court to blood remand, on we should instruct including HLA Jeffrey, of and appellee, tests appellant, See Joint tests, appellant. if have not excluded other tests Testing Serologic Present of AMA-ABA Status Guidelines: 10 256 Fam.L.Q. Parentage, Disputed Problems of as If of the tests are exclude (1976). the results of should resolve the issue the court Jeffrey, of of 42 as matter law. Pa.C.S.A. accordingly, not of tests do exclude 6136. If the results consider the results should as still court See, v. all the other evidence. Cramer the tests along Morrison, Cal.Rptr. (1979); 153 865 Shaw Cal.App.3d Test- Kass, Paternity Child and Support, & “Illegitimacy, testing HLA (1975). L.Rev. With ing,” Houston per of exclusion to exceed 98 is for the possible probability Weeks, Chorley, Tuinstra v. supra; cent. See Carlyon 5, 1980) (when probability (Mich.Cir.Ct. Fam.L.R. Nov. paternity ap- in establishing blood test accuracy cent, is admissible as “relevant result of test proaches 98 per tests to face blood limiting evidence” of statute even exclusion paternity).
-3- a conclusion Finally, acknowledge explicitly I wish to case, constitu- holding in this implied our which our hold- on authority tional and statutory principles rests, op. at 1164-1165. ing majority see protected, will rights, legally which Since man child, not just of a incident status as father to his will at only which be enforced support, as obligations, such state, follow that it must the mother or initiative of *14 an unmarried woman does not have the unqualified right refuse to cooperate legal intended to deter- proceedings mine the of her child. I recognize, as did the court, lower that this conclusion result in some intru- sion on a woman’s See lower court 3. privacy. slip at op. Nevertheless, one, in a case such as this that interest must yield.
With these additional considerations I join the opinion the majority. Pennsylvania,
COMMONWEALTH of DOLAN, Appellant. Robert Lawrence Superior Pennsylvania. Court of
Argued Nov. 1980. May Filed