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COMMONWEALTH EX REL. GOLDMAN v. GOLDMAN. (09/14/62)

September 14, 1962

COMMONWEALTH EX REL. GOLDMAN, APPELLANT,
v.
GOLDMAN.



Appeal, No. 244, Oct. T., 1962, from order of County Court of Philadelphia, Domestic Relations Division, Docket No. 3421, 1960, in case of Commonwealth ex rel. Geraldine Goldman v. A. William Goldman. Order affirmed.

COUNSEL

Arthur C. Thomas, for appellant.

James J. Boyle, with him Ettinger, Gallagher & Silverman, for appellee.

Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).

Author: Woodside

[ 199 Pa. Super. Page 276]

OPINION BY WOODSIDE, J.

We are here called upon to decide whether the Uniform Act on Blood Tests to Determine Paternity, enacted July 13, 1961, P.L. 587, 28 P.S. § 307.1 et seq., applies to an action brought for the support of minor children born during wedlock.

The petitioner is seeking support from her husband for herself and her three children. The parties were married May 29, 1948, and separated March 17, 1958. A divorce action is now pending. The petitioner gave birth to three children: Michael, on September 20, 1953, Gerry on December 16, 1957 and Claudette on November 19, 1959. She brought this action against her husband on August 9, 1960. Without taking testimony, the court entered a temporary order on December 2, 1960 and amended it on August 1, 1961. Prior to the taking of testimony relating to the entry of a "permanent" order, the defendant filed a petition denying paternity of the two younger children and praying for an order requiring submission of the necessary parties to blood grouping tests. After the filing of an answer by the wife and an argument on the question, the court directed the necessary parties to submit to the tests. This appeal followed.

There are three children involved in this case. The defendant does not question the paternity of the oldest child and an order of support for Michael must be made. The defendant does deny paternity of the second child who has conceived and born while the parties lived together, and the youngest child who was conceived and born after the parties separated.

[ 199 Pa. Super. Page 277]

The question of compulsory blood grouping tests was last before the appellate courts, a few years ago when the Act of May 24, 1951, P.L. 402, was in effect. That act authorized the court, in any proceeding to establish paternity, to order the parties therein to submit to blood grouping tests. It was held not to apply to actions brought for the support of minor children born during wedlock. Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1957).*fn1

We believe that the Uniform Act of 1961, which repealed the above act of 1951, does apply to actions for the support of minor children born during wedlock. Section 1 of the Uniform Act provides that blood grouping tests may be ordered by the court "In a civil action in which paternity parentage or identity of a child is a relevant fact," and § 6 provides, "This act shall apply to criminal cases ..." Section 5 provides, "The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child."

The action here, as in the O'Brien case, was brought under § 733 of The Penal Code of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4733. Mr. Justice COHEN, speaking for the Court, said in the O'Brien case, p. 555, "The present proceeding is one in which paternity is relevant... but it is not a proceeding brought to establish paternity." The Act of 1951 provided for compulsory blood grouping tests in proceedings "to establish paternity," while the Act of 1961 provides for such tests in actions in which paternity parentage "is a relevant fact." It is evident by this change of language that the legislature intended by the 1961 Act to extend

[ 199 Pa. Super. Page 278]

    the compulsory blood grouping tests to proceedings not covered by the Act of 1951.*fn2 Furthermore, § 5, supra, providing that the presumption of legitimacy of a child born during wedlock is overcome by certain evidence of blood tests, establishes that the act is applicable where the paternity of children born during wedlock is a relevant fact.

We are not impressed by the argument of the appellant that the act, although applicable to both civil and criminal actions, is not applicable to this proceeding because it has been referred to as a "quasi-criminal" action. See Commonwealth ex rel. Highland v. Highland, 159 Pa. Superior Ct. 633, 636, 49 A.2d 529 (1946). The act applies to both civil actions and criminal cases and is applicable to those proceedings which have some characteristics of both civil actions and criminal cases.

Section 5 of our blood tests act of 1961 is identical (except for an unimportant comma) with the uniform act recommended by the National Conference of Commissioners on Uniform State Laws.*fn3 The report of the commissioners on this section states as follows: "A new provision referred to in Section 5 has been drawn relating to children born in wedlock claimed to be illegitimate. Most states have a strong presumption of legitimacy - in fact, a conclusive presumption of legitimacy of children born in wedlock except in such situations as impotency, non-access, and a child of a different race. As to all other situations, the child is conclusively presumed to be legitimate when born in wedlock. This is based on social policy today. It has also been influenced by the difficulty of proof with certainty.

[ 199 Pa. Super. Page 279]

Where blood tests could determine with absolute accuracy the non-paternity of a child born in wedlock, the presumption should yield. Therefore, this Act is drawn to include those cases." 9 U.L.A. 109.

The Uniform Act contains the provision that "This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it." By including this provision, our legislature is directing us to examine the decisions of other states interpreting the act. The Uniform Act was enacted and became effective in the following states on the following dates: ...


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