RUTH F. v. Robert B.

Altman, 515 A.2d Feher v. rules of complied here has not with the Appellant Procedure. Pennsylvania service set forth in the Rules of Civil Heyman good v. Lamp She has not therefore satisfied faith standard. F.

RUTH Jr., Appellant. B., ROBERT Superior Pennsylvania. Court

Argued Sept. 1996.

Filed Feb. 1997. Fiffik, Michael Pittsburgh, appellant. for Hanna, Park, Carol L. appellee. Bethel for CAVANAUGH, J., CIRILLO, Before Judge President Emeritus, TAMILIA, KELLY, JOHNSON, FORD ELLIOTT, SAYLOR, SCHILLER, EAKIN and JJ.

TAMILIA, Judge. B., Jr., F.,

Robert Zachary appeals him, from May 1995 Order directing along Zachary with F., appellee/mother, Ruth testing to submit to blood purpose of determining Zachary’s paternity. At the time conception of Zachary period and until of more than years, three Zachary’s mother lived with presumptive biologi F., cal David as man and wife in an intact relationship. Ruth separated and David F. August, December, and divorced part 1993. As of the divorce agreement, the parents agreed that support husband would the two older children during marriage he fathered but not Zachary. Preliminarily, we find this a agreement nullity as parents may bargain away rights their children support. Hyde Hyde,

The issue squarely presented by appeal this is whether mother is estopped denying paternity pre- of the father, F., sumptive pursuing David and a and paternity support against father, B., action Robert Jr. The mother testimony by the court, ex parte review of

trial after officer, finding affirmed the hearing court-appointed before a presump- overcame the that the mother officer hearing of the and that the behavior of non-access because legitimacy tion of insuffi- F., herself was David presumptive of the and/or and finding this upon Based estoppel. an cient to establish the trial court testimony, mother’s from the conclusions drawn mother, Zachary and son testing of the authorized blood appellant. must be in error. The Order trial court was believe the

We Jr., B., must be against action Robert support vacated and with prejudice. dismissed determining Pennsylvania

The law and married man and woman a relationship between legal established, is well during marriage a child conceived time, time to there From easily applied. clearly stated application which confuse the in fact situations arise nuances careful way to a doctrine, invariably give these but time-honored stan policy considerations application at- Initially, despite a case. This is such proof. dards of the advent otherwise and times to insinuate in recent tempts . of almost incontrovertible by discovery technology of modern HLA and DNA through genetic, proving paternity means of is determined paternity of the issue of the resolution testing, behavior, during particular period conduct and intent of or by performance is unaffected time. This determination issue. tests, irrelevant to the which are demand for blood blood tеst to determine to obtain a right 4010, Physical and mental exami by Pa.R.C.P. is established 1915.8, Physical and mental persons, rule nation of and/or controversy. in persons, when the examination of cause shown. only good on motion for may be made The Order (1990). T., Paula John M. v. 524 Pa. a child conceived or custody where the case issue, parentage this turns on is at marriage husband/father, legitimacy child good there is before effectively must be rebutted the child of for a blood “The permit grant cause to the the motion test. from the legitimacy’ of arose reluctance ‘presumption illegitimate, ‘illegiti- declare a the law to child because status subjected significant mate’ a child so labeled to historically legal and social discrimination.” Id. at 312 n. 571 A.2d at (citations omitted). 1383 n. legiti

This case turns whether the of rebutted, macy upon has been which in turn is conditioned are on evidence parties estopped relying whether leading legitimacy. to rebuttal of the law paternity may evolved to the Pennsylvania point has be in in purposes, legitimacy question, established for all when ways. one of several Assembly principle “pa-

The General has codified the 17, 1971, ternity by in its Act of June P.L. estoppel” 26, 1978, § by No. as amended Act of November P.L. (Purdon’s § § Supp. No. 288 Pa.Stat.Ann. 1989) (hereinafter 167”), pro- referred to as “section which vides:

Children; legitimacy; determination of

(a) it enacted Repre- Be Senate and House Pеnnsylvania sentatives of the Commonwealth of Gen- met, eral Assembly hereby and it is enacted same, That all children shall be authority legitimate irrespective parents of the marital of their status any every case where children are born out of if they enjoy rights wedlock shall all the privileges they during parents, had been born the wedlock of such except provided as otherwise Title 20 Pa.C.S.

(b) purposes prescribing For benefits to children by, through born out of wedlock from and by any following shall be determined one ways:

(1) If of a child born out of wedlock shall parents have other. married each

(2) child, openly If lifetime of holds out the child to be his and receives the child into home, child out be his and openly

his or holds the which shall determined provides child support for by convincing clear and evidence.

(3) convincing is clear and evidence that If there may a prior man the father the child which include was of paternity. court determination M., 318-319, (emphasis at 571 A.2d at 1386-1387 supra John of the statute original). highlighted portions The above clearly the facts this case. apply to hearing at proceeding The detailed before the evidence commitment and convincing parental officer is clear and of the of Zachary. David F. with involvement of behalf hearing willingly accepted and trial court a revisionist officer of the to which the mother testified were view facts and which F., not present. uncontradicted David as he was its memorandum, pater- court “It is well settled that states: if, operates against only a husband nity-by-estoppel from reasonably he his he non-paternity, time became aware of continues the child and accept parental responsibility J., (Memorandum, hold the as his Kaplan, child out own.” omitted.) case, 5/9/95, 5; In this trial court p. citations non- reasonably found did not become aware of his husband mother him May, finally until when the told Zachary’s paternity. the truth of not and the Despite present the fact husband was self-serving, mother was it clear on testimony of the became that the had been cross-examination mother husband person aware of the likelihood that some other fathered outset, Zachary. Mr. F. according appellee, At the she and during covering had not intercourse several months had although still married. hav- period conception, Previously other this union and with the ing fathered two children knowledge the normal term of a Mr. F. could be pregnancy, reasonably his and to be sure expected question cross-examination, him. Zachary fathered On F. follows: responded Mrs. did, however, F.],

Q. And indicate that you [Mr. life with that the early years you suspected the child’s his; child was not is that correct?

A. Yes. continued, however, to treat the child as his

Q. And he of his children? own and raise child as one A. Yes. 8-9.)

(H.T., 9/7/94, F. pp. questioning, And later Mrs. early that from the child’s Mr. F. said the acknowledged years ongoing not his and that it was an contention in the child was (id. 13). Notwithstanding, they both maintained a marriage F. family relationship, treated Mr. as the father and to this birth, years Zachary after Mr. F. to his day, seven believes own, father. On her decided to the rela- appellee repudiate telling Mr. F. he not the father in tionship, May, was by voluntary which was followed a blood test which excluded him as the father. F., exchange telling

This and that Mr. convincing any under definition of a rule discovery might applied that case, to this did or of should have known his and non-paternity yet any failed to take purposeful steps exculpate himself Rather, from the responsibility he had undertaken. the evi clearly dence is to the an contrary Zachary was born into — 7, 1989, intact family June and for the next three years Mr. own, F. held the child out supporting financially as his him as emotionally. well as was on Zachary’s “[David F.]” listed father; birth certificate as his Mr. F. Zachary included on his plan medical and him regularly dependent claimed as a on the (as addition, tax family’s returns. the mother testified B.) by testimony corroborated of Mr. that in either late ’91 or (well October, early ’92 before the or separation 1992 1992), May, “disclosure” in Mr. F. met with appellant Robert B. proposed a transfer to F. of a of piece property Mr. compensation financial at rest any paternity set claims against appellant. Mr. B. refused. In the spring and summer 1992, appellee of to a that brought things by declaring head Robert B. was the father. Mrs. Despite F.’s desire to contin unit, ue as a in order to retaliate against her and Mr. 406 F., October, 1992, Mr.

B., against action Mr. filed was Zachary. complaint on behalf of B. and Mrs. F. and no principle appeal of the estoppel dismissed because by Judge Kaplan It that dismissal appears taken Mr. F. issue as to Mr. F.’s paterni- that action the resolved Also, the estoppel. paternity, of as to issue of ty on basis F. any action Mrs. judicata prevents of res principle against Mr. B. an opportunity have been afforded parties

Where litigate competent jurisdiction, before a court of a claim court decided the controver- finally has where of of the sy, parties require interests the state and validity any actually issue the claim litigated litigated again. in the ‍​​‌‌​​​​​‌​​​‌​​‌​​​​‌‌‌​​​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌​​​‍action not be Sulek, 615, 621-622, 8 Ham 422 620 A.2d Pa.Super. v. effects plaintiff whether Regardless action, may relitigate in the first he recovery [or she] AmJur.2d, adjudicated. once an action which has been § Judgments [524].

Application judicata requires of the doctrine of res possess following the two actions common elements: (2) (1) identity identity thing upon; sued (8) (4) action; identity identity parties; cause Stehman, 434 Matternas v. parties. capacity 255, 261, (1994); McArdle Pa.Super. 1219, 1222 A.2d Tronetti (1984) denied, (1993), 622, 641 allocatur 537 Pa. A.2d (1994) Co., ]; Pa.Super. v. Ins. 401 Valley Forge Banker [ denied, (1991), 367, 373-374, 504, 585 A.2d 508 allocatur (1991). 615, 529 600 A.2d 532 Pa. Co., at Pa.Super. 172] v. 439 [Dempsey

Id. Cessna Aircraft 174-78, 653 A.2d ^[679] 680-81 [ (1995) ]. See also: Ham Hammel, 230, 214, 237-239, A.2d mel v. 431 636 Pa.Super. Staats, 428 (1994); Morgan Trust Co. v. 217-218 Guar. (1993). 479, 491-493, 631, Pa.Super. 631 A.2d 367-638 to determina judicata applicable of res are also Principles Ascero, Pa.Super. v. tions of See: 379 paternity. Wachter (1988); Gardner, 618, v. 550 1019 371 Pa.Su A.2d Gardner

407 (1988), denied, 605, 256, 4 521 Pa. per. allocatur Manze, (1989); 555 A.2d 115 Manze v. 362 Pa.Super. Leedom, (1987); Pa.Super. 523 A.2d 821 Shindel v. B.L., (1986); Pa.Super. 504 A.2d 353 R.J.K. (1980); Nedzwecky ex rel. v. Ned A.2d Commonwealth 179, 199 zwecky, 203 A.2d 490 Pa.Super. (1995).1 Mershon,

Scott v. judicata the res we full Notwithstanding finding, believe a remaining discussion of the will facilitate the issues resolution cases such as this the courts. While this case was treated at the outset as an presumptive actually case as to the it turns whether or not the mother is estopped denying from legitimacy Zachary. The facts are incontrovertible as to fact, the mother. at oral argument mother’s attorney said parties agreed there was non-access between Mrs. F. and her husband at the conception time of and that she knew Mr. B. was the other only likely biological parent. Additionally, intact, kept Mrs. F. the family allowed the husband to exercise and fulfill the role of for years, over three and even now, at seven years age, Zachary believes Mr. F. is his during father. The time which the concept family of intact attaches is at the time of birth and the years thereafter parents which the treat child as member of the family unit. The dissolution of the marriage 1992-1994 had no bearing on the intact status of purposes mother, estoppel, and once the with irrefutable knowledge the child’s paternity, manifests intent and conducts herself husband, in a leading manner her the child and the world to treat Zachary marriage, as a child of the estopped she is denying the parentage the child now that she wishes to end marriage provider believes better would be Mr. B.

In a Superior recent Court referencing case Jones v. Tro jak, (1993), 535 Pa. 634 A.2d 201 we reasoned: appeal 1. While this issue was neither briefed on nor raised in the court below, jurisdiction dispose since it effects the of this Court to matter, may sponte. we determine the issue sua 408 a has concern

Jones teaches this Commonwealth “unit” created “family the unit.” The existence of this role in the parenting where father assumes a presumed the of, the what is begins development life of the child and be, the of mother marriage bond. While hoped lifelong falter, where a may ultimately parent-child and husband the interest developed, has Commonwealth’s relationship remains, relationship this as will the maintaining presump- marriage. of However tion that the child is a child the “family unit” has ever existed because husband where no child, the on role as to the parent has not taken resolving unit” is issue “family of a not at preservation parent-child relationship has paternity matters. Where role of never and husband has not tаken existed child, of which is parent purpose presumption, to the is no served. preserve existing relationship, longer an claim is a any paternity Therefore critical a resolution of upon of relationship parties determination based the facts. 383, 300, 304, McCleary, Pa.Super.

Dettinger v. 438 Bleem, (1994); Pa.Super. 385 see also v. 439 Kohler (1995) J., denied, (Tamilia, dissenting), A.2d 579 alloc. 654 (1995) (“The intact concept 541 Pa. 664 A.2d 541 of an it exists protect family which the law seeks to is the (not child the time conception at the time of or birth of separation)”.). v. governed by

The case is Christianson resolution this (1990), Seger 390 568 A.2d 961 Ely, Pa.Super. (1988), A.2d hold that Seger, which also paternity by estoppel may applied the doctrine of father. the mother who holds her husband out to be child’s Accord, (1976), Pa. Adoption Young, M., court, an The trial inversion supra. John rule, when it testimony ignored considered non-access to the testifying of the mother from to non-access due holding treating out and the child as that the husband finding not. trial knowledge that he was court’s despite Zachary’s mother concealed truth by testimony from the husband is belied of the mother and the actions of the father detailed holding above. The out of the by child as his own was established clear and convincing evidence of knowledge and evidence husband’s lack of was not convincing, but rather leads to a fair conclusion that he had reasonable information regarding person’s another paternity. If holding by out must be established clear and convincing evidence, it is in reasonable that the face of such evidence lack of knowledge of the questionable paternity must be equally established clear and by convincing evidence. The reliance on Kohler, Kohler, supra, by the trial court is In misguided. the alleged lack of knowledge specific the of the identity person (as fathering the child to the opposed knowledge the husband could not have fathered the child because he had a vasectomy) was the which upon majority basis the allowed testimony to rebut of legitimacy created the estoppel Opinion doctrine. The Kohler has not changed the law of parental estoppel unique but turns on facts applicable Here, here. knew putative husband he because attempted to make a deal with him to property obtain exchange for support continued the child while family was still intact. M., of In Baby case the Matter 109 N. J. (1988),

A.2d 1227 in which validity of a contract called “surrogacy contract” was reviewed the courts of New Jersey, Jersey the New Supreme Court stated:

We invalidate the surrogacy contract it because conflicts with the public policy law and of this State. we While recognize depth yearning infertile couples children, have their own we find payment to a money criminal, “surrogate” illegal, mother perhaps and potentially to women. degrading Here,

Id. at at 1234. any A.2d exchange money property between the and presumed fathers to final- ize paternity Zachary for would be likewise and/or demeaning odious and to the nature of child care and responsi- bility in our society. We do not tolerate purchasing children for adoption and the bargaining parenting rights over is Zachary exchange financial consideration

duties as to have Any thereby reached would reprehensible. agreement been unenforceable. when it finds:

The trial court misstates the law case, however, in this there “The factor significant most and, no reason to family intact therefore protect was no (Memorandum 6.) Since in most estoppel.” apply the applied is there cases which the doctrine filed, or complaint has divorce already separation been family longer legal no intact is of little fact that which is the significance. family protected The intact must be the denial conception until time one, or occurs, years can be two or even fifteen sixteen which of a certain of marriage, aspects later. dissolution Despite relationship the marriages, ongoing most such as between rights of to its of inheri parents, and that the child siblings claims, tance, to insurance and accident rights relating legal coverage a other hospitalization myriad and and medical child, parent from the status of and rights and duties derived is are also aspects important remain intact. It these which when doctrines are involved. considerations court, the trial which recognized by truth of this is position applies only states doctrine two instances— estoppel partial the father denies and support actions where Seger, mother paternity. actions where the denies custody 98, Pa.Super. Montenegro, In supra, and the Matter of instances, marriage longer In no A.2d 1381 both Thus, intact. family intact elements of the remain but an analysis in his of what constitutes trial court is inconsistent A estoppel intact it relates doctrine. how clear and the reasons behind policy the doctrine exposition Chrzanowski, v. 325 Pa.Su it Chrzanowski espoused were (1994), 298, which relies on the per. Beck, panel, for the Judge writing doctrine. Chrzanowski expressed rule behind this was best policy stated Andreas, 245 ex Commonwealth rel. Gonzalez (1976).2 any Absent overriding equities in favor of putative father, fraud, such as the law permit cannot party renounce even an assumed duty parentage when by doing so, the innocent child would be victimized. Relying upon representation parental relationship, child natu- rally normally extends his love and affectiоn to the putative parent. The representation of parentage inevitably obscures the identity whereabouts the natural love, so that the child will be denied the affection and the natural on, father. As time wears the fiction of parentage reduces the likelihood that the child will ever have the opportunity knowing or receiving the love of his natural father. While law cannot prohibit father from informing the child of their true relationship, it can prohibit him from employing the sanctions of the law to avoid the obligations which their assumed relationship would impose. otherwise

Chrzanowski, supra, 472 A.2d at quoting Gonza- lez, supra. our gender-neutral society, this principle ap- plies equally to the mother. Pennsylvania Constitution, I,Art. § Equal Rights Amendment; § 1 Pa.C.S. Equality of rights based on sex.

The trial court in goes this matter on and attempts to justify the mother’s actions and to relieve her of the implications of the estoppel doctrine in her interest and presumably in the child’s best interest. These are not relevant in considerations what has been determined to be a public policy pronounce- ment of overreaching significance to a stable society, where procreation and rearing of children are placed above the vacillating emotions and inconsistent objectives of the adults involved.3 Throughout Opinion

2. putative this we have used the term father to alleged biological mean the presumptive father and father to mean the legally recognized husband and father. In Commonwealth ex rel. Gon Andreas, 307, (1976), v. Pa.Super. 245 putative zalez presumptive father is the father. Mershon, In Scott v. Pa.Super. 441 3. 657 n. A.2d 2n. (1995), Judge Wieand stated: mother from the trial court also would relieve the

The in the appellant participated because effect her to bear the child instead creation and asked child’s for All should be thankful parties her terminating pregnancy. result, however, standing has no to putative that or custody payment or to insist custody pursue partial D., 110, 109 v. 491 U.S. S.Ct. see Michael H. Gerald support, (1989), 2333, 105 the mother L.Ed.2d 91 which relieves enabling interference them party father of third presumptive Zachary their child and to treating with as to forward go it that have to offer. How could him the best both provide him into a in interest to force Zachary’s best possibly be know, denies a whom he does not who with man relationship emotionally him or involved support to become any desire Zachary’s relationship him? remain hope best with man his mother and the he believes is half-siblings, his with him a son for most his father and who has treated as his early life. custody support, that either or as court admits trial (husband wife), each is estopped either of them

between The court cannot paternity the husband. denying from father when against to the wife open door him and closed to the custody purposes for it is closed anomaly This would create the for purposes. husband recognize legal law two unique must purpose, this socially unaccep- untenable and legally This would be fathers. relevant paternity tests determine become table. Blood may only ordered after A.2d v. Pa. Trojak, 535 has been overcome. Jones Zadori, (1993); A.2d 370 Zadori case, has not been overcome In this her husband’s estopped denying the mother is because ordering appellant in error in The trial court was paternity. test. to submit to blood law, great ad- day this medical and scientific

2. Whether the vances, to countenance the concealment should continue policy presumption is ‍​​‌‌​​​​​‌​​​‌​​‌​​​​‌‌‌​​​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌​​​‍a issue to be in fact fictional sometimes legislature Supreme Court. decided and/or Order reversed. relinquished.

Jurisdiction CIRILLO, Concurring Statement Judge President Emeritus.

EAKIN, J., concurs the result.

Dissenting Opinion by JOHNSON, J.

Dissenting SCHILLER, J., Opinion by KELLY, J., in which joins.

Dissenting Statement by ELLIOTT, FORD J.

Concurring by CIRILLO, Statement Judge President Emeritus:

I agree with the result reached by majority decision I today. write separately, however, to propose that our society has upon embarked an era in which the usefulness of legitimacy legal as a tool ques- must be tioned. Overcoming the presumption is becoming fast virtual- ly impossible. Advancements in technology, forms, all its travel, medicine to air have muddled clear and convincing rebuttal. The weakening rebuttal necessаrily alters the sub- stance of the presumption. my

It is opinion that the protection of the traditional family unit need not be dictated by the presumption; the protection of the family, exists, where one is the goal of the statutory and case law governing paternity. We cling need not to timeworn principles to support that I goal. believe a analysis careful each situation, factual in particular the relationship between the presumptive or putative child, father and as well as the “known factor” of against whom support made, claim bemay is necessary just to fair application paternity law.

Dissenting Opinion by JOHNSON, Judge: The Majority has concluded that Ruth F. equitably es- topped from denying that ex-husband, F., her David is the the proper I believe that Zachary. of her Because

father son litigation Zachary’s requires of this case resolution I respectfully dissent. paternity, At time of his June 1989. Zachary F. was born on Ruth, to F. mother, married David birth, was Zachary’s in engaged Ruth was Zachary’s conception, the time of Around time, and Robert B. At this same affair with an extra-marital Ruth David had ceased marital prior, months for several 2-3; Trial N.T., at Court September relations. 9,1995, at May 1-2. Opinion, Ruth in- into her pregnancy, one month

Approximately N.T., child. B. that he was father her formed Robert that she abort planned 6. also told Robert B. at She supra, B. this after con- Robert baby. plan Ruth abandoned Id.; Opinion, supra, Trial Court her to have child. vinced promised Robert B. Evidence was also presented at 2. N.T., 6. baby. supra, at kept Ruth if she by” “stand however, Ruth represented Throughout pregnancy, her Opinion, the child’s father. See Trial Court David that he was life, Zachary’s During years 2. first three at supra, of their product as and Ruth treated child David his named David was as child’s marriage. Id. expenses related to birth and medical birth certificate N.T., at 8. David and supra, David’s were insurance. paid tax returns joint on their income exemptions Ruth also took Zachary. Id. life, whether he Once, question David did early Zachary’s at 2. supra, Trial Court Opinion, was the child’s father. father; David that he was the David again Ruth told response, In June again. Id. question Zachary’s paternity did not however, Zachary. he Id. David that did not father Ruth told he, month, Zachary request, Ruth The next David’s had to determine whether David to blood tests submitted David Id. The results excluded as Zachary. fathered has that he father. Since David learned child’s natural Id. Zachary stopped treating he has Zachary’s was not at 3. his child. See id.

In August Ruth; David filed against a divorce action their divorce completed 1998. In December October 1992, David brought support against action B. on Robert Zachary’s behalf. The court dismissed action and David did not appeal. brought

Ruth the present support against action B. Robert 1994. April The trial court ordered the parties appear before a domestic relations hearing officer to determine whether estopped Ruth was from denying that David was Court, Zachary’s father. Order of June 1994. The hear- officer ing recommended that Ruth not estopped be litigating Zachary’s paternity and that the parties required to testing. submit to blood Robert B. filed exceptions this recommendation and this question argued before the trial court. The court exceptions dismissed Robert B.’s or- and B., dered Robert Zachary Ruth and testing submit blood to determine whether Robert B. was Zachary’s father. Rob- B. appealed ert a panel and divided of this Court reversed. The full Court granted then en banc certification to determine whether estopped Ruth was from denying that David had fathered Zachary. law, Pennsylvania

Under a child born to a married woman is presumed T., to be a of her child M. v. marriage. John Paula 306, 312-13, 524 1380, Pa. 571 (1990); A.2d 1383 v. P.C.S. J.E.B., 388, 442 391, 1043, (1995). Pa.Super. 659 A.2d 1045 (1) presumption This can be overcome in two ways: evidence (2) impotence husband; of by the or evidence of non-access or lack of sexual intercourse between husband and wife at the time of conception. 95, 105, Jones v. Trojak, 535 Pa. 634 A.2d 201, (1993); 206 Ermel, Commonwealth ex rel. Ermel v. 259 Pa.Super. 796, 797 if Even a party successfully rebuts this presumption, the husband or may wife still be estopped from if challenging paternity that person, by conduct, his or her accepted the husband as the father of the Jones, child. supra, at 634 A.2d at 206.

My point first of disagreement is with Majority’s recita- tion of the law this governing dispute. I Specifically, am troubled by the assertion that “whether the of presumption upon rebutted ... is conditioned whether

legitimacy has been leading relying are from evidence estopped the parties Maj.Op. at legitimacy.” of presumption rebuttal of the two separate This statement confuses 690 A.2d at 1173. presumption legitimacy doctrines —the child legitimacy arises when a presumption of estoppel. P.C.S., A.2d supra, at to a married woman. born hand, one on the other bars Paternity by estoppel, at 1045. if accept- or she challenging previously he has Jones, at child’s supra, ed held out a father. person Thus, we determine whether A.2d at 206. by looking at marital sta- legitimacy applies tus; by looking by estoppel applies if paternity we determine concepts are separate That these two parties’ conduct. may fact paternity by estoppel is further shown legitimacy, is no apply even where there 651, 656, 639 Perry, vice versa. See Jefferson (1994) are (stating “principles A.2d is conceived out wedlock suited where child peculiarly Thus, the regarding paternity apply.”). and no presumptions two separate conflates these majority’s statement law Majori- I However, only disagree with inquiries. do law, I disagree application its ty’s also with statement to the facts before the Court. law case, that found as a fact Ruth In this the trial court relations at time engaged David were sexual that and thus held Zachary’s conception 1995, at Opinion, supra, Trial legitimacy was Court rebutted. N.T., testimony. supported by 4-5. Ruth’s finding This was findings of fact those supra, at 2-3. This Court bound Wittman, 412 that in the record. See Stahli supported are (1992). I 281, 583, 284, Accordingly, 603 A.2d 584 Pa.Super. holding the trial court’s that would affirm evidence of non-access. See legitimacy was rebutted this Elliott, 358, 602, 2, 607 n. Selm v. (1992). therefore, Ruth is whether question, n. The crucial Zachary’s denying from David estopped should be father she had held because David out to be the child’s three years Zachary’s first life.

A mother misrepresents who her husband as the father of her child may estopped later be from challenging child’s if paternity accepts the father the child and treats him as his Jones, 105, 206; P.C.S., own. See at supra, A.2d at supra, 1046; Wilder, at 659 A.2d at Joanne Ross Pennsylvania (3d 1993). Family § Law Practice and Procedure 27-4 ed. This doctrine of paternity by estoppel is based on the notion that, circumstances, under certain it may inequitable to person challenge allow a a position that she previously M., adopted. See supra, John 571 A.2d at 1386. circumstances, however, Under some we may parties allow a challenge position concerning paternity they once ac if cepted equities weigh in favor of such a сhallenge. See Bleem, (2-1 Kohler v. 439 Pa.Super. 654 A.2d 569 deci sion), appeal denied 541 Pa. Kohler,

For example, a mother brought a support action against father. The mother’s husband had a had vasectomy prior to the marriage and was therefore sterile. wife, however, The pregnant became as the result of an husband, affair. adulterous with the knowledge that he was not the child’s accepted the child and treated it as his own after the mother told him that her pregnancy had resulted an affair that she had with a man who lived later, another state. years however, Five the husband learned that his wife had lied and that the biological child’s father was actually the couple’s neighbor. This revelation caused the husband stop treating the child as his and to divorce his wife. Id. at 654 A.2d at 571. The wife then filed action against the neighbor and sought have blood tests performed to determine the child’s paternity. The trial court, however, held that she was estopped from challenging her child because she and her husband had held the product child out as a marriage. their appeal,

On panel this Court held that the mother was not estopped from denying her ex-husband’s that blood tests should have been ordered. Id. at (1) our the

A.2d Three factors dictated conclusion: at 577. by had been rebutted evidence legitimacy (2) unit; sterility; family the the lack an intact husband’s (8) to invoke the seeking estoppel the doctrine party the misrеpresentation. stated that party had been a to We most family lack of an intact unit —was the second factor —the in our resolution of the case. Id. important factor paternity by “the doctrine of A.2d at 575. We noted that family protection out of concern for the the estoppel grew exists, longer logic no it defies unit” and that when that “unit to equitable principles perpetuate to apply fairness intact, unit not family was we pretense.” Id. Because against of the situation militated equities concluded that the Id. applying the doctrine. estoppel Further, of the impact misrepresen- we also considered the Although it tation the child’s was regarding paternity. wife, father, actively putative misrepresented not the who inequitable it to concluded that would paternity, child’s we We putative estoppel. allow the father invoke concluded, had that unclean essentially, an permitted not been invoke hands and thus should have based this determination several equitable doctrine. We (1) factors, misrepre- he had: including acknowledged (2) sentation; relationship an intimate with admitted (3) conception; time of was aware mother (4) child; he fathered the admit- conclusion that had mother’s (5) sister; her did the mother and ted his hus- misrepresentation to the mother’s nothing dispel n. Id. at 397 n. 654 A.2d at 576 9. band.

I factors that dictated the result in Kohler believe First, prеsent legitimacy are this case. of non-access. Trial Court has been rebutted evidence Second, he 4-5. after Ruth told David that Opinion, supra, at Finally, Zachary’s their dissolved. him conduct, believe, prevent I from invok- Robert B.’s should in inter- engaged B. had ing doctrine. Robert of Zachary’s conception. Ruth around the time course with Ruth’s that he was pregnancy Robert B. knew one month into keep Ruth to pleaded B. with of her child. Robert the father N.T., at 6. supra, her.” to “stand promised the child and Kohler, misrepresent actively B. did not As in Robert misrepresented had he knew that Ruth but child’s and he remained silent. to David Zachary’s paternity Cf. on Kohler, at 576 n. 9. Based 397 n. supra, at not allowed facts, that Robert B. should be I would hold these from to bar Ruth equitable estoppel to invoke the doctrine Further, I id. want Zachary’s paternity. challenging Cf. this, only the involving in a such as that case emphasize considering only we are limited to mother and parties. the conduct of those with the express my disagreement

I write separately also This issue was neither Majority’s judicata. discussion of res The Majority in the trial court. appeal nor raised briefed this asserts, authority, that it can discuss without citation Maj. at jurisdiction. Op. it our issue because affects authority supports n. 1. I know of no A.2d at 1175 juris- matter judicata subject affects our res proposition Rather, in ‍​​‌‌​​​​​‌​​​‌​​‌​​​​‌‌‌​​​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌​​​‍this appropriately more judicata or, diction. res — context, prevents a doctrine that collateral —is decided. Because this doc- previously of issues relitigation this is without jurisdiction, is unrelated to our Court trine sua See Pa.R.A.P. 302 authority sponte. to reach this issue (issues for the trial court cannot be raised not raised time on appeal). first Majority’s finding that a

Finally, disagree I also with the Ruth is David and portion agreement of the divorce between 1172. David is Maj. 690 A.2d at Op. unenforceable. case; Ruth is not agreement to this his with party not Majority I that the erred several before this Court. believe First, of that by addressing validity agreement. ways Court; before this validity agreement properly of that is issue. See authority are without to address this thus we Second, validity agreement because the of that Pa.R.A.P. 302. case, I necessary to the resolution of this is not an issue that is discussing Majority Opinion that that portion conclude Sedat, advisory opinion. constitutes an See agreement (1992) (an 1, 4 Fisher, A.2d Inc. v. unnecessary to decide the case advisory is one that opinion court; prohibited courts are Pennsylvania before the Third, validity by deciding issuing advisory opinions). opportunity David the agreement granting this without heard, process rights, David’s due Majority implicated has Pennsylvania Consti- guaranteed by the United States tutions. B., Zachary Robert requiring

I would affirm the order I respectfully Accordingly, Ruth to to blood tests. submit dissent. SCHILLER, Judge:

Dissenting Opinion by dissenting opinion my I in of the learned join the thrust however, to ex- compelled, I feel colleague, Judge Johnson. the need to reconsider our outmoded my views on press in in wedlock. disputed paternity cases of jurisprudence F., a Ruth divorced appellee, The issue before us is whether mother, putative estopped by appellant, can be him, child, from because the child seeking support her F., the marriage presumptive born her to David father. application this court to consider the requires

The case by estoppel and the presumption legitimacy, paternity doing, in In so for blood tests wedlock.1 statutory provision distor- of the common law and the the limitations come inflexibly applied caused when it is tion of fact and law by of its contem- sharp Deprived original purpose into relief. today only legitimacy, laws on porary case, consider, majority as relevant to the would also have us 1. surrogacy judica- right bargain away support, contracts and res child analogy, are based on inference and unsubstan- ta. The first two issues fact, question presently legal tiated and both are irrelevant before us. judicata is not the issue of is res The contention brought by A Mr. F. in supported the record. action against parties dismissed because in this action was October 1992 Thus, adjudication there was never an the F. divorce was not final. the merits. of accurate scienti- availability disregard forces the law of the evidence,2 misapplication to the but also leads fic case, in the instant estoppel. As corollary equitable rule of of each often, underlying objective the result stands the too its head. and their families—on to children doctrine—fairness serves Opinion this case Precisely Majority because the families, I dissent respectfully nor their must neither children rigid application in a and unrealistic grounded from a decision of the law. because They repeating are critical.3 bear

The facts here testing identity requires of a father determination of the 2. The accurate testing paternity became available biological Medical evidence. testing, group which development of ABO blood the 1930s with the paternity. Initial tests estab- provided the scientific evidence of first through high degree probability, non-paternity, indicating to a lished markers, father. genetic particular man was not a child's whether a Note, Sex, Challenging Elingboe, Lies and Genetic Tests: Deborah A. Act, Parentage Presumption Paternity the Minnesota Under Marital advances, (1994). Subsequent fn. 12 scientific Minn.L.Rev. (HLA), recently leucocyte antigen and most including human test fingerprinting affirmative use of blood tests to have led to the DNA testing, particular, positively paternity. identifies DNA establish specific rеpresentations DNA father on the basis of individual and the child. Ronald configuration of the the mother Comment, Richards, Paternity Testing, 22 Fingerprinting and J. DNA U.C. Davis L.Rev. 612-613 recognize efficacy reported case to of these The first American Zammarelli, (1931) cited v. 17 Pa.D & C 229 tests was Commonwealth 563, O'Brien, 551, Pa. in ex rel. O’Brien v. Commonwealth (1957). a child born out of wedlock. 456-457 Zammarelli involved blood test evidence was admitted to overcome the In (Commonwealth legitimacy in wedlock. Id. ex rel. of a child born (1935)). Visocki 23 Pa.D & C 103 testimony, styling majority repeatedly the mother’s it as The discredits 3. parte, self-serving If there are deficiencies in ex and revisionist. are, evidence, agree they our own and I that there are the result of a procedural legal relevant when the rules and the doctrine Procedurally, appeal contested. this is an to child born in wedlock is requiring testimony only parties claim. support claim of the to that Thus, party provided and he has no Mr. F. was not a to the action testimony might of the truth of allow an accurate determination various statements about his conduct. Furthermore, large is measure a the evidence on the record in applicable parties’ of the of both efforts to meet the criteria reflection wit, estoppel: whether or not Mr. and Mrs. common law doctrine of to F., Zachary’s paternity, ways despite uncertainty behaved in about and un- contеmporary fragility marriage,4

they reflect court in protecting role of the heightened derscore the in dramas. caught children these F., an single parent, brought Ruth April appellee son, Zachary, against for child on behalf of her support, action father. At the time of alleged biological the child’s appellant, action, months. divorce had been final for five appellee’s in two older children produced Her which had born marriage, troubled. she had long 1983 and had been Since relations with her former husband and having ceased sexual appellant. Appellant involved with intimately had become nor that when he learned she deny relationship, does not abortion, considering urged an he her pregnant child, he would stand her. saying have in Despite F. was 1989. some doubt Zachary born June child’s former husband that he was the part appellee’s father5, together F. to remain as a attempted Mr. Mrs. year, of 1992. In June of that family until the summer Zachary period suggested the world that was their child Thus, prior paternity challenge. we find the determination of to the being made on the basis of evidence such as the father’s certificate, signature of the child as a on the child’s birth the claim return, significantly dependent couple's tax and most the moth- on the deduction, course, logical complicity conduct. The is that er's in this F., struggling disintegrating than with their if Mr. and Mrs. rather childrеn, implications had marriage and the for a with two other Zachary's immediately F. was not father and announced that Mr. accordingly, compelled undergo a then Mr. B. could be treated him however, failed, test; they things to make work and blood since tried accepting responsibility Zachary. his Mr. B. is insulated from illogical result is that we make a determination of what is best for this feelings, past or current evidence on the actual child without accurate facts, potential capacity, other relevant from either father. economic or report 4. A recent on the condition of American children notes that early many 1980s will be children of as half of all children born in cases, mothers; custody divorce. In of these will awarded to 90% cases, support agreement roughly be no child there will 41% marriage agreement place when the ends. Even when such an Weissbourd, place, renege support. Richard of all fathers on full 50% The Vulnerable Child 52-53 Appellee husband raised the issue of his 5. testified that her former only definitively he paternity one occasion before she told him that was not the father. Zachary’s he was not former husband that told her appellee confirmed his non- tests which F. blood requested father. Mr. and filed for divorce marriage then left the He paternity. finan- Zachary not supported that time he has August. Since F. also filed a this Mr. emotionally. During period or cially Mrs. F. his which against appellant, action wife support preserve marriage. wanted to she opposed because 1993. The divorce were divorced December parties The reflecting incorporated agreement settlement decree Zachary. acknowledgement paternity mutual of the parties’ older children of support for the two agreed provide Mr. F. him to support was no marriage, provision but there Zachary. the child finding support herself unable April

alone, support against appellant. an action for appellee filed argued Appellant invoked seeking support from from appellee estopped should officer, upheld by A whose determination was hearing him. court, found had rebutted the appellee the trial was estopped seeking support. Appellant and was testing to submit to blood to determine ordered brought He then this support to a determination. preliminary appeal.6

> n { sj« % % sk majority holding policy now bases its on the consider- originally development presump- motivated ations useful- approach tion of Such an has outlived its legitimacy. available, and It blinks at the best scientific evidence ness. efforts to inapposite makes a determination to nationwide squarely child on the shoulders of identified place fаthers.7 responsible pursuant appeal, although interlocutory, permissible to the

6. This Trojak, Supreme Pa. Court decision in Jones v. September 1996 is the 7. An Executive Order issued the President delinquent support payments. effort to address the issue of child latest loans, deny requires agencies such as small The Order federal federal loans, loans, loans, parents, farm and home to deadbeat and to business computer systems identify receiving individuals federal streamline 424 a common law doctrine with legitimacy,

The law, children from the developed protect in Roman to roots and to stabilize relation illegitimacy harsh realities Fatherhood, Kisthardt, Families Mary Kay ships. Of D., 65 Tul. Michael H. v. Gerald Legacy The Fantasy: (1991). 585, religious prevailing 589 Reinforced L.Rev. monogamous from recognition of children favoring attitudes Kisthardt, swpra, presump at relationships, marital the child of her a child to a married woman was tion that born “beyond if the was not was conclusive husband husband (i.e., country) prior to or four was within seas” D., D. H. and v. Gerald Michael Victoria pregnancy. (1989) 2342-2343, 105 L.Ed.2d 91 U.S. S.Ct. (J. 1826)). Chitty ed. 1 Blackstone’s Commentaries (citing for Thus, legal blood ties were critical an era when status, conject matter of was a biological paternity social but definition of ure,8 legal the basis for the marriage became construct as well as a Fatherhood became a social paternity. of such a construct were advantages fаct. The biological many. his could inherit from protected by legitimacy

A child his support against enforceable legal right had actions, wrongful tort such as pursue and could certain (Fathers well, example, through death suits. benefitted born, only through a child was curtesy, which vested when were rights No such earnings.) entitlement to children’s They could not inherit from to children. illegitimate available fathers, from their right limited to a their were and, support, of such became wards mothers the absence support. No. payments who also owe child Exec.Order Fed.Reg. 51763 characteristically captured Skepticism about in these 8. Shakespeare: cynical lines from bastards, We are all I And that most venerable man which my I know not where Did call father was stamped. When I was Cymbetine,act. sc. 5. from was also freed marriage A child of

the state or church. Kisthardt, at 587-589. bastardy. supra, stigma of the social in common law rules also reflected was rule, known as Lord Mansfield’s evidentiary An evidence. and wife Rule, prevented husband first articulated Id. conception. time of to lack of access testifying of non- proof added to Subsequently, proof impotency rules, These traditional presumption. access rebut and, intended, secondarily, protect children primarily, areas of married private from intrusions into shield families 2348, H., 125, virtually at life, at 109 S.Ct. supra Michael any child bоrn to paternity on the foreclosed an attack in the of the law. couple eyes married on the adopted based Pennsylvania, presumption In the illegitimacy, children from shielding concerns of public policy Sanitary Corp., v. American Radiator & Standard Cairgle (1951), 249, 255, 439, 442 the supporting 77 A.2d 366 Pa. O’Brien, ex rel. O’Brien v. family. marital Commonwealth (“This (1957) 451, 551, 555-556, presump 390 Pa. 136 A.2d 453 in the society tion is in which any essential unit.”) maintained consistently fundamental Our Courts have the evidence admissible presumption’s strength by limiting it. the “four seas” doctrine was abandoned Although rebut direct, 18149, “clear, rule early only as under modern non-access, convincing proof impotence and unanswerable” was sufficient to overcome the or lack of sexual intercourse (citations 256, at A.2d at 442 Cairgle, supra 77 presumption. McCue, omitted); 604 A.2d Pa.Super. McCue v. 413 (“Blood (1992) may paterni 741 test not be used rebut pre in ty Following the first instance.... rebuttal marriage by a child of clear and sumption that the child is Tilghman stating Chief found the doctrine unreasonable 9. Then Justice that: other, (husband wife) they ... where live at a distance from each very improbable, legitimacy of the child should so that access is be decided on a consideration all circumstances. (1814) Binney Shepherd, v. 286 cited in Common- Commonwealth 560-61, O’Brien, supra O’Brien v. 136 A.2d at 455-456 wealth ex rel. added). (Chidsey, dissenting) (emphasis J. evidence, relevant to deter the blood test becomes convincing omitted). (citations parentage_”) mine chal- relevant years, In the law past has significantly in wedlock been of children born lenges The Pennsylvania legislature. two actions of the by affected the Uniform Assembly passed when the first occurred § et Paternity, 28 P.S. 307.1 Act on Blood Tests to Determine 1951 law which ambiguously the more worded repealing seq.10, to actions for of children apply held not to had been O’Brien, wedlock, ex rel. O’Brien v. Commonwealth born explicitly The Act 136 A.2d 451. Uniform 390 Pa. supra, over- legitimacy might presumption that the provided come test evidence: blood wed- legitimacy a child born conclusions of all if the court finds

lock is overcome upon the evidence based experts as disclosed of the child.11 that the is not the father tests show husband inherent in § to the challenge P.S. 307.5. The later and led to a decision year this section reached court subsequent jurisprudence all shaped that has wedlock. Goldman, Commonwealth wedlock, (1962), of children support an action for born

351 1961, 587, 13, Subsequently July §§ 286 1 to 6. 10. Act of P.L. No. 9, 586, 142, (42 §§ § July by P.L. No. 2 Pa.C.S. 6131 amended on 1976 19, 1990, 1240, 206, 2, 6137) § 23 Pa.C.S. December P.L. No. to and on § 5104. exactly of language the same in the amended version 11. This remains legitimacy. 5104(g) § 23 Pa.C.S. the law. of —Effect 5104(c): Act, § authority is found in the current for the test Under paternity, parentage any subject in which or matter to this section fact, court, upon initiative identity a is a relevant its own of child any person suggestion by whose blood upon made or on behalf or involved, or, any party a may upon to the action made at motion of delay proceedings unduly, order the shall time so as not mother, any alleged tests. If child and father to submit to blood tests, may question party the court resolve the refuses to submit to the party identity against or paternity, parentage or of a child justice rights and the interests of so its order if the of others enforce require. 5104(c). § 23 Pa.C.S.

427 in the right, even had that a husband held this Court to an order impotency,12 or non-access of evidence absence his paterni- contested when he tests grouping blood requiring born after and another during marriage born of a child ty considered, and court also The Goldman separated. parties had wife plaintiff counterargument. a new accepted, should be estoppel equitable the doctrine contended that paternity. his right question limit the husband’s applied that the Recognizing 355. 184A.2d at Id. at families— support legitimacy goals assure had twin —to estoppel princi- the doctrine of accepted court the Goldman however, found that instance, the court In this ple.13 overcoming pre- him from estop did not father’s conduct children voluntari- supported both having his sumption despite received demanded and having lives and part of their ly order. Id. temporary under a rights of visitation modernization, with the clash of tradition Squarely confronted 12. Goldman, Pa.Super. 184 A.2d v. the court in Commonwealth tests, tamper (1962), with right but refused to granted the to blood years by went prohibition. Thirteen law testimonial the common v. ex rel. Savruk in Commonwealth before the doctrine was overruled (1975). Derby, analogizing adop- from accepted the doctrine The Goldman court 13. had never before by estoppel. noted that this doctrine tion The court rules relat- Pennsylvania "primarily because the strict applied been legitima- presumption of necessary ing evidence to overcome to the becoming estoppel an issue.” cy kept Goldman, questions and laches supra A.2d at 355. precluded adoption by estoppel Pennsylvania, Long recognized in adoption parent legality an where the questioning the parent from operated pri relationship. parental The doctrine recognized the had children, inheritance, legally adopted protecting marily in the context of legally asserting that the child was by estopping parties from other e.g., Appeal parent. See deceased adopted, the conduct of the based on (Pa. 1888). Wolf, 13 A. 760 by estoppel estoppel an adoption by Each —is doctrine — equitable which in doctrine of application of the common law differently doing an act generic preclude one from form "acts its or deed to was induced word in which another than the manner Foundation, Dermatology and Research expect.” Education Zitelli The doctrine has been 534 Pa. denial, questioning of repudiation or widely prevent the invoked "to adopted of an ... the status property, ‍​​‌‌​​​​​‌​​​‌​​‌​​​​‌‌‌​​​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌​​​‍ settlement of claims divisions of 1.10(8). § legitimacy.” 31 CJ.S. child or a status 428 1990,

In extended to a mother “cannot estoppel was who (of child) and, hold out her husband be the father her thereafter, upon separation, charge pa- a different man with 398, 402-403, ternity.” Ely, Pa.Super. Christianson 961, Christianson, an action for support A.2d by father the mother of a child brought against putative man, her to another refused during marriage born this court until the trial court allow blood tests mother determined whether the had established clear and convincing evidence that she and the husband were not es- from topped denying paternity. the husband’s The case was for remanded further evidence determine whether 409, at 568 A.2d at 966.14 applied. Id. 1971,

The second act occurred in when significant legislative Assembly legal the General eliminated the distinction between children, § legitimate illegitimate and 23 Pa.C.S. 5102.15 As a result, legitimate regardless all children were declared parents marital status of their and were accorded all the if rights privileges they and “as had been born ” The parents.... provided wedlock of such Code also ways three to determine the of children out of born 398, (1990), Ely, 14. Christianson v. relied D., 110, D. v. on Michael H. Victoria Gerald 491 U.S. 109 S.Ct. 2333, (1989), proposition 105 L.Ed.2d for the that "an permissible Order for a test would blood not be to overcome legitimacy unless it had first been established that the presumptive parent estopped denying paternity.” was not Chris- tianson, 4, supra at 403 fn. 568 A.2d at 963 fn. 4. Justice Scalia was clear, however, limiting holding H. Michael to those cases where is, conception the mother to, at the time of the child’s married birth with, man, cohabiting another both of whom wish to raise the offspring pronouncement child as the union.... We their limit our possible to the relevant this case because it is at least that our facts regard traditions lead to a different conclusion with to adulterous fathering parents of a child whom the marital do not wish to raise as their own. H., supra (emphasis Michael fn. 109 S.Ct. at fn. 7 added). 17, 1971, § 15. Act of June P.L. No. 17 1 as amended Act of 26, 1978, again November P.L. 1216 No. 288. The Act was amended 206, § on Dec. P.L. No. 2.

429 the father identifying for the means wedlock,16 parallel which of purposes father for through the descent determining when Code, 20 Pa.C.S. Probate, Fiduciaries Estates and The 2107(c). § that the fathers ways the statutes maximized

These identified, protected and could be out of wedlock children born inability to inherit. children from the these Pennsylvania that the law suggests now majority “well-established, clеarly stated subject arise. where these issues any fact situation applied” easily 1172) History precedent at 690 A.2d p. (Opinion Pennsylvania years, In recent otherwise. demonstrate application on the spoken has twice Court Supreme estoppel, legitimacy, equitable of the interplay presumption T. M. v. Paula See John to blood test evidence. right and the (1990), cert. T., Pa. and Michael (1990); 112 L.Ed.2d 107 denied, 111 S.Ct. 498 U.S. Pa. Trojak, Jones M., partial for petition addressed a the Court John sought to establish petitioner

custody/visitation which during the father of a child born biological he was to show man. to another Unable marriage of the mother during husband impotency non-access or either sought compel petitioner period, relevant time provide evidence to submit to blood tests husband legitimate § to be 5102 Children declared 16. (b) purposes prescribing benefits paternity. Determination —For through by, wedlock from and children bom out of following ways: any by one of the paternity shall be determined (1) each of wedlock have married parents of a child born out If the other. (2) child, If, clear and it is determined the lifetime of the openly child to be convincing holds out the evidence that the father provides support the child into his home or his and either receives the child. (3) convincing man was the evidence that the If there is clear and child, prior may cоurt determination which include father of paternity. § Pa.C.S. 5102. Acknowl

might legitimacy. overcome the statute, that, in no light legitimacy of the 1971 edging issue17, underlined the force of the longer an Court good compel that there was no cause to presumption holding already the blood test since had been established and no evidence sufficient to overcome it had (Justice concurring opinion, joined by Nix’s presented. been Justices, stands party, four found that when a third who claim relationship, challenges outside a marital the husband’s that the child is the issue of the paternity, only by proof establishing can overcome of facts husband be M., 322, at impotency. supra non-access or John at 571 A.2d 1388.) rely estoppel, explained The court did not but at the doctrine’s role in the Common length implementing in preserving relationships responsibili wealth’s interest ties of those who assume and by established conduct in roles whether or out of wedlock. Id. at accept parentage 318-320, 571 A.2d at 1386-1387. The force of this public of the policy by application was underscored discussion codification of 23 Pa.C.S. legislature’s paternity estoppel, 5102(b), § as one means to determine the of children 318-319, 1387, marriage. born outside of Id. at 571 A.2d at 98, citing Montenegro, In re (1987). In these instances is established and blood M., test evidence irrelevant. John at may supra be A.2d at 1386. Jones, however, held that a divоrced mother Court estopped

was not father of her compelling child, another, was born while she married submit blood tests for of a claim. The Court first purposes held that court tests to determine paternity, ordered blood Second, though interlocutory, even are the Court appealable. distinguished implement- the Commonwealth’s concerns when legal “legiti 17. The Court that since the between declared distinction statute, illegitimate” mate and children had been eliminated phrase “presumption legitimacy” meaningless was and would now "presumption a child of the born to married woman is child therefore, and, marriage,” of the woman’s husband. John M. v. Paula T., T. and A.2d Michael 524 Pa. 312-313 fn. 1383- 1384 fn. 2 marriage longer no existed as the law cases where ing marital was intact. Con- family to those where the opposed M., in Jones with that John Chief trasting the situation Nix wrote: Justice important

“Trojak comprehend fails to appellant] [the John M. the facts reasoning our distinction between M., In John grew our rationale out of instant case. of the concern for the survival of the family this Commonwealth’s unit.” added). Thus,

Jones, 106, 634 A.2d at 206 supra (emphasis at intact, pre- of the power the marital where others, such as the sumption unquestioned, remained but case, remained, Jones marriage adopted the Court where no relationship to the “actual an looked approach Id., citing Chris- father and natural mother.”18 presumptive tianson, supra at 966. court, the Jones framework, in a fact sensitive

Using this were over- analysis, found that the come: repudiated

... father and mother their presumptive marriage long ago. Additionally, vows we have evidence child as his presumptive accept that the father did not Moreover, the trial court found that own.... conceived, sexually time Katie was Jones was not involved father and presumptive impotent, with the because he was by presumptive this not rebutted testimony was either being no Thus, putative father or the father. ... there intact considerations family present, a determination re- Trojak’s is to garding [putative paternity necessary father’s] claim support [mother]. resolve the child made Jones Jones, supra, undeniably Supreme it that 18. While is true Court rules, utilizing a evaluated the case under traditional thus case analytical approach, extrapolate could from the Court's case one dependence family on the absence of intact considerations a theoretical M., (where distinguish family objecting to such as John basis cases unit) presented by to the blood test was an intact and the situation Jones (where family disintegrated prior present unit and the case had however, entering legal system). extrapolation, the case Such an Supreme may It that Court would rest with the Cоurt. be time for important this area of law. reexamine 432 added). 106-107,

Jones, (emphasis A.2d at 207 at supra, that test evidence reached the conclusion blood The Court taken fact that Mr. Jones had despite admissible would be birth; his acknowledged had hospital give his wife to the records; and had baptismal child’s birth and on the his insurance. Fur through of hospitalization the cost paid children remained thermore, and their three other the Joneses for 6 months after the child’s family an intact together as Pa.Super. 586 A.2d Trojak, v. birth. Jones (1993). See also (1991), 535 Pa. aff'd., Dettinger McCleary, governed by, factually congruent case is present

with, test It an from an order for blood appeal Jones. father. The against putative to a action preliminary acknowledged the child’s real couple marital have There is uncontroverted evidence separation. since their sexually involved when the and wife were not the husband are no intact consider- child conceived. There And, convincing have clear and evidence finally, ations. we has, best, feelings, at ambivalent presumptive that the and, worst, He has feelings Zachary. toward be- bitter Jones, held, as the trial court accordingly. haved Under tests of seeking not blood estopped should appellee a support evidence relevant to determi- father as B., Pleas of F. v. Court of Common Slip Opiniоn. nation. 94-044081995, 9,1995. May FD Allegheny County, ^[*] # ^{[*] [*]} # of this sad and difficult case was under- My exposition Rather, taken, however, I solely precedent. to vindicate write by procrustean jurisprudence, caused highlight damage reality approach recognizes and to for a new argue an would elimi- weighs approach all relevant evidence. Such nate, legitimacy, pre-trial stage, at the com- legislative and heed the equitable estoppel the role of in all about disputes that blood test evidence is relevant mand I am not advocating change, this biological parentage. from blood tests are determina- suggesting that results such is admissible. five, It is a but that blood test evidence considered, along relationship factor to be with the legitimate a by equitable estoppel, by presiding judge highlighted factors (financial responsibility for the welfare or ultimately fixing other) of a child.19 purely application

The effect of the reflexive of the tradi- of this for highlights tional rules under the facts case need change. estopped seeking support this Ruth F. is now from for biological years from the child’s because three she held out as a child of the Zachary marriage (Op. at 1175); compel appellant undergo A.2d at she cannot testing necessary blood for a determination of paternity.20 Appellee’s former is legally husband determined to be the father of Zachary liability support with the concomitant for and he from collaterally estopped contesting is issue. child, whose well-being objec- should be the fundamental law, tive of the left without assurance of optimal economic and with likelihood of support, support even less emotional from man might Appellant, either whom he call father. on the hand, estoppel, shielding other benefits from himself factual determination that duty he has a a child however, whose he has never denied. The majority, assures us that the mother and the father are presumptive party now relieved of third interference them to “enabling go treating Zachary forward with as their to provide child and him the best that have to offer.” (Op. both 690 A.2d at 1177). hubris, of judicial hope Whether a function or this distorts,reality. statement defies reason and We can be certain on record that F. Zachary this will never again be treated as the child of the marriage between Mr. and Although fully recognizing parent’s responsi- that this case is about a 19. bility support, compelled question for financial I am whether the majority's position necessity would be the same if the issue were the investigate genetic predisposi- accurate medical information order to suspect tion to illness. I that it would not. Despite today's holding, we note that after this Court’s recent deci- 20. Javan, (1996), Shirley sion in Zachary probably bringing F. subsequent would not be barred from right. action in his own all but, importantly, more public, F. Since Mrs. known him, siblings, his have including close to those seven, Zachary has Now Zachary’s parentage. of actuality F. is relationship with Mr. that his out undoubtedly figured matter only it is a why, different, if he hasn’t determined Only alleged him. his informs his mother time before by avoiding the truth to hide attempted has biological his family. For or his current with the child connection any a the idea because efforts, Finally, he is rewarded. involve- who has avoided presumptive edict legal him his best give will years, child for five with this ment illusion. mere its justify permanently its aim cannot that misses

“The rule Cardozo, Nature the Judicial The Benjamin N. existence.” a once legitimacy, Process unknowable, a has now become surrogate for valuable purpose protecting its primary truth. Absent to the barrier — courts have embraced illegitimacy children —our marital families. secondary protecting for its doctrine role— of its regardless any marriage, assumption on the Based interest, have we duration, of a child’s best is the measure designed barriers edifice of doctrinal an elaborate built from ever fact of legal presumptive prevent It is paternity. biological fact of the scientific confronting therefore, down, respect- I come barriers to time for those dissent. fully

KELLY, J., joins. ELLIOTT, Judge: Statement FORD

Dissenting Dissenting Opinion in the reached join I in the result analysis Johnson, Judge I with Johnson’s agree J. legitimacy between the interplay proper However, to ex- I write separately by estoppel. reliance on whether any with my disagreement pressly state ‍​​‌‌​​​​​‌​​​‌​​‌​​​​‌‌‌​​​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌​​​‍as a critical family” an “intact dealing with or not we are of whether question I don’t believe analysis. factor in the family a together as living or still are still married parties in a any estop- unit has determination of whether application pel applies.

Rather, I agree Judge analysis with Tamilia’s that “the time during concept family which the of intact attaches is at the time of birth and the thereafter which years parents child a family (Opinion by treat the as member unit.” 1175.) Tamilia, J. at 690 A.2d at It is the status of the unit that child as member is relevant whether family the mother and father of that unit are still married. If that marriage child is child arises, purposes challenging then for that it presumption, presumed parents should matter that are divorced. token, rebutted, if By ques- the same estoppel application tion of whether has should not depend whether or not the are married or presumed parents still grow divorced. doctrine of did indeed out of the unit, protection not the marital unit. The of the child to the mother relationship and the father I recognize stating my unit survives divorce. so on this thoughts represent minority matter view. Pennsylvania, Appellant, COMMONWEALTH APONTE, Appellee. Maritza Superior Pennsylvania. Court

Argued Jan. 1997.

Filed March 1997.

Case Details

Case Name: RUTH F. v. Robert B.

Court Name: Superior Court of Pennsylvania

Date Published: Feb 6, 1997

Citation: 690 A.2d 1171

Court Abbreviation: Pa. Super. Ct.