Appeal, No. 212, Oct. T., 1955, from order of Municipal Court of Philadelphia County, No. 126298, in case of Commonwealth of Pennsylvania ex rel. Adele T. O'Brien v. Robert J. O'Brien. Order affirmed.
Irving R. Shull, with him Alfred I. Ginsburg, and Bernard L. Lemisch, for appellant.
Norman R. Bradley, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.
[ 182 Pa. Super. Page 585]
In an action for the support of a minor child, born during wedlock, does the defendant have the right to require blood grouping tests under the provisions of the Act of May 24, 1951 P.L. 402, 28 PS 306? This statute reads as follows: "In any proceeding to establish paternity, the court, on motion of the defendant,
[ 182 Pa. Super. Page 586]
shall order the mother, her child and the defendant to submit to one or more blood grouping tests by a duly qualified physician to determine whether or not the defendant can be excluded as being the father of the child, and the results of such tests may be received in evidence but only in cases where definite exclusion of the defendant is established".
The parties were married on October 24, 1938, and were divorced February 27, 1950. Three children were born, one of whom died immediately after birth in 1943. The other two children are Barbara, born June 25, 1939, and Richard, born February 11, 1947. While the husband left the common habitation in 1942, there was no evidence of non access. "He came to the house any time he wanted to". On May 23, 1946, an order in the amount of $15.00 per week was entered for Barbara's support. On March 6, 1950, by agreement of the parties, this order was increased to $25.00 per week. On October 28, 1954, a petition was filed to amend the order so as to include Richard as well as Barbara. The court below refused to order blood grouping tests and amended the order to $30.00 per week for the two children. The order will be affirmed.
Appellant contends "that the only important word that requires definition in order to determine the scope of the Act is 'proceeding'". This contention overlooks the significant fact that the word "proceeding" is limited and modified by the words "to establish paternity". The order of support in the instant case was entered under the provisions of Section 733 of the Act of June 24, 1939, P.L. 872, 18 PS 4733. We have said that this act is "a quasi criminal statute", and that its purpose is protection rather than punishment: Commonwealth v. Widmeyer, 149 Pa. Superior Ct. 91, 26 A.2d 125. Our only prior consideration of the Act of 1951 was in Commonwealth
[ 182 Pa. Super. Page 587]
divorce proceeding, or when the order for Barbara's support was increased, and that the wife did not request support for Richard for over seven years. These circumstances do not constitute the type of evidence required to rebut the presumption of legitimacy. A mother cannot do impliedly that which she cannot agree to do specifically, namely, by her own agreement limit the right of the child to support: Commonwealth v. Beavin, 168 Pa. Superior Ct. 73, 76 A.2d 653. The delay in her demand does not relieve the husband of his responsibility: Commonwealth ex rel. Rovner v. Rovner, 177 Pa. Superior Ct. 122, 111 A.2d 160.
We do not find in the Act of 1951 a clear and express mandate to depart from a rule which has been so firmly established and so long followed. Nor do we believe that it was the intention of the legislature to remove the protection thrown around a child born during the marriage of his mother. Years ago an act was passed*fn2 which provided that "no interest or policy of the law shall exclude a party or person from being a witness in any civil proceeding". The Supreme Court said: "The language of that act at first blush might seem to include a case" involving the right of parents to bastardize their child, born in wedlock. However, it held that such a result was not in the legislative mind, and that the act "was not intended to abolish a valuable rule of law founded in good morals and public decency": Tioga County v. South Creek Township, 75 Pa. 433. Just recently, in an opinion by Judge WOODSIDE, we rejected a contention in ...