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decided: September 14, 1967.


Appeal from order of County Court of Philadelphia, Nov. T., 1965, No. 5029, in case of Commonwealth ex rel. Andree M. Leider v. David S. Leider.


Samuel Kagle, with him Oscar Brown, for appellant.

Joseph N. Bongiovanni, Jr., with him Stassen & Kephart, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Dissenting Opinion by Ervin, P. J. Dissenting Opinion by Hoffman, J.

Author: Wright

[ 210 Pa. Super. Page 434]

This is an appeal by David Stephen Leider from an order of the County Court of Philadelphia requiring him to pay the sum of $20.00 per week for the support of a female child, Suzanne Mary, born August 9, 1962. We are not concerned with the amount of the order. The issue before us is whether any order should have been entered against this appellant under the circumstances. There were five hearings in the court below, with extensive testimony. Although counsel for the parties executed a statement of the case under our Rule 37, we have deemed it advisable to review the original record in its entirety.

On November 18, 1965, a petition was filed by Andree M. Leider against David Stephen Leider requesting that an order of support be entered for herself and minor child, Suzanne Mary. On January 13, 1966, the matter was continued upon condition that any order

[ 210 Pa. Super. Page 435]

    eventually entered should be retroactive to that date. On February 15, 1966, David Stephen petitioned for an order directing blood tests under the Act of July 13, 1961, P. L. 587, 28 P.S. 307.1 et seq. The blood tests did not exclude David Stephen as the father of Suzanne Mary. The support proceeding ultimately resulted in the order, January 3, 1967, which is the subject of the instant appeal. It will be helpful to briefly summarize the factual situation.

Andree Marie L'Allemand was born on October 7, 1924. She married David Paul McFarland April 8, 1946. Andree MacFarland (now Yost) was born January 22, 1947, David MacFarland was born December 8, 1950, Daniel MacFarland was born July 10, 1956. While living with MacFarland, Andree Marie admittedly "dated" other men. She and MacFarland eventually separated. The opinion below indicates that it was in 1956. However, in a petition for support filed by Andree Marie against MacFarland on August 11, 1961, No. 3600 August Term 1961, she averred that the separation occurred in July of that year. Joint income tax returns were filed until 1961. In any event, MacFarland remained in the general area after the separation and regularly visited his children. At the time of the conception of Suzanne Mary, he resided "about three blocks away". Some time in the fall of 1960 Andree Marie met David Stephen Leider, a college student sixteen years her junior, born November 3, 1940. Shortly thereafter Andree Marie and David Stephen commenced sexual relations. Following the birth of Suzanne Mary, Andree Marie obtained a divorce from MacFarland, January 8, 1963, and married David Stephen, January 17, 1963. While the instant action was pending, Andree Marie and David Stephen were divorced. The court below dismissed the petition for support so far as Andree Marie was concerned, and the order was entered for the support of Suzanne Mary only.

[ 210 Pa. Super. Page 436]

The pivotal issue on this appeal is whether the presumption of legitimacy was overcome. This presumption stands until met with evidence which makes it clearly appear that the husband at the time of conception (MacFarland) was not the father of the child: Commonwealth v. Carrasquilla, 191 Pa. Superior Ct. 14, 155 A.2d 473. The burden is on the Commonwealth to rebut the presumption: Commonwealth v. Atherton, 129 Pa. Superior Ct. 64, 194 A. 779. The law is well settled that neither husband nor wife may testify as to non-access: Commonwealth v. Oldham, 178 Pa. Superior Ct. 354, 115 A.2d 895; Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439. This court has been faced with a similar problem in a number of cases, of which we will mention the four most recent. In Commonwealth v. Fletcher, 202 Pa. Superior Ct. 65, 195 A.2d 177, and Commonwealth v. Ludlow, 206 Pa. Superior Ct. 464, 214 A.2d 282, it was held that the evidence on the issue of non-access was sufficient to rebut the presumption of legitimacy. In Commonwealth v. Carrasquilla, supra, 191 Pa. Superior Ct. 14, 155 A.2d 473, and Commonwealth v. DiBonaventure, 206 Pa. Superior Ct. 340, 213 A.2d 175, it was held that the evidence as to non-access was not sufficient to rebut the presumption.

In Commonwealth v. DiBonaventure, supra, 206 Pa. Superior Ct. 340, 213 A.2d 175, Judge Jacobs made the following pertinent statement: "Since the prosecutrix was still married at the time of conception, the Commonwealth was required to assume the burden of rebutting the presumption of legitimacy by sufficient competent proof to sustain a finding beyond a reasonable doubt of non-access by her husband . . . Whether it meets this burden depends, of course, on the particular facts of each case". Our ...

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