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COMMONWEALTH EX REL. BURK v. BURK (11/14/68)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 14, 1968.

COMMONWEALTH EX REL. BURK
v.
BURK, APPELLANT

Appeal from order of Court of Quarter Sessions of York County, Dec. T., 1966, No. 19, in case of Commonwealth ex rel. Carolyn Burk v. George W. Burk.

COUNSEL

James R. Gailey, Jr., for appellant.

Lewis Markowitz, with him Markowitz, Kagen & Griffith, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Concurring Opinion by Spaulding, J.

Author: Per Curiam

[ 213 Pa. Super. Page 246]

Order affirmed.

Disposition

Order affirmed.

Concurring Opinion by Spaulding, J.:

This is an appeal by Walter Burk, appellant, from the order of the court below requiring him to support his minor child.

Appellant and his wife, the mother of the minor child, separated September 12, 1966, and were divorced March 17, 1967. The child was born August 3, 1967, 329 days after September 8, 1966, the date on which the lower court found that the parties last engaged in intercourse.

Appellant contests his paternity of the child. He contends appellee has not shown by competent medical testimony that the child could have been born after a gestation period of 329 days and consequently she has failed to establish his paternity. The average or "normal" gestation period for a child is 270 to 280 days after fruitful coitus. Commonwealth v. Young, 163 Pa. Superior Ct. 279, 60 A.2d 831 (1948). Although in Commonwealth v. Young, supra, this Court stated in dicta that pregnancy has in certain instances extended to 334 days after coitus, 312 days has been the longest gestation period in which the paternity of the putative father has been held to be established. Commonwealth v. Watts, 179 Pa. Superior Ct. 398, 116 A.2d 844 (1955).

While I concur in affirmance of the order of the court below, this order is not the establishment of a precedent that paternity may be proven by the showing of a pregnancy lasting 329 days after intercourse.

[ 213 Pa. Super. Page 247]

The child whom the appellant has been held liable to support was conceived during appellant's marriage to the appellee. Under these circumstances, there is a strong presumption that the child was legitimate. Thorn Estate, 353 Pa. 603, 46 A.2d 258 (1946); Commonwealth v. Carrasquilla, 191 Pa. Superior Ct. 14, 155 A.2d 473 (1959). As was pointed out by Judge Woodside in his dissent in Commonwealth v. Watts, 179 Pa. Superior Ct. at 402, supra, this presumption has a sociological foundation designed to strengthen family relationships and is not for the purpose of establishing the true paternity of children conceived during wedlock.


*fn* Although Judge Woodside suggests in his dissent in Commonwealth v. Watts, supra, that fewer than one child in one million is born after a gestation period of 312 days, I do not express an opinion on whether there is the certainty and unanimity of medical opinion which would permit a trial court to take judicial notice of the degree of probability that a birth may occur after a pregnancy of unusual duration.


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