Appeal from order of Superior Court, Oct. T., 1967, No. 242, reversing order of County Court of Philadelphia, Nov. T., 1965, No. 5029, in case of Commonwealth ex rel. Andree Leider v. David Leider.
Joseph N. Bongiovanni, Jr., with him Stassen and Kephart, for appellant.
Samuel Kagle, with him Oscar Brown, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen dissents. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.
Andree Leider (appellant) married David MacFarland in 1946 and of that marriage three children were born. The MacFarlands separated in 1956 and were divorced January 8, 1963. Appellant did not live with MacFarland after 1956 although he resided only a few blocks away and occasionally visited the children at her home.
Some time in the fall of 1960, appellant met David Leider (Leider) and soon thereafter began having sexual relations with him. Toward the end of 1961 the couple began living as man and wife and were eventually married January 17, 1963, nine days after appellant's divorce from MacFarland. Meanwhile, on August 9, 1962, appellant gave birth to a female child, Suzanne Mary, whose paternity is the subject of the present suit.
On November 18, 1965, appellant filed a petition in the County Court of Philadelphia County against Leider for support of herself and the child. The Leiders were divorced during the pendency of the support
proceeding and, as a result, the proceeding for the support of appellant was abandoned. The County Court entered an order requiring Leider to pay $20.00 weekly for the support of the child. Leider appealed to the Superior Court which reversed the support order, holding that Suzanne was the legitimate child of MacFarland since he and appellant were still married when the child was born.*fn1 (Commonwealth ex rel. Leider v. Leider, 210 Pa. Superior Ct. 433, 233 A.2d 917 (1967)).
The pivotal issue on this appeal is the propriety of the trial court's ruling allowing MacFarland and appellant to testify that they had not had sexual relations since 1956 although there is no question that they were still married when the child was born. In reversing the County Court's order, Judge Wright, speaking for the majority of the Superior Court, relied upon the well-established rule in this Commonwealth that a husband and wife cannot bastardize a child by testifying to their non-access to each other at the time the child was conceived. This rule is set forth in Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 255, 256, 257, 77 A.2d 439 (1951): "For reasons of public policy it has been the law for centuries that there is a tremendously strong presumption that children are legitimate. . . . In order to successfully rebut the presumption of legitimacy the evidence of non-access or lack of sexual intercourse or impotency must be clear, direct [,] convincing and unanswerable. . . . Moreover, our public policy is so firmly established and so strong that the courts have repeatedly declared that 'non-access cannot be testified to by either the husband or wife in order to overcome the presumption of legitimacy [citing authorities]' . . . .
In Janes's Estate, 147 Pa. 527, 531, 23 A. 892, the Court said: 'A child born or begotten in wedlock is presumed to be legitimate, and neither the mother nor her husband can bastardize it by testifying to non-access.'" (Emphasis added) See also: Manfredi Estate, 399 Pa. 285, 289, 159 A.2d 697 (1960); Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551, 555, 136 A.2d 451 (1957).
In dissenting, Judge Hoffman attacked the validity of the rule in general.*fn2 We find it unnecessary, however, to question the theory behind the rule in this case, for we conclude that the trial court's ruling does not offend the black-letter rule laid down in Cairgle. If Leider is found to be the father of this child, the child is not bastardized for Leider subsequently legitimated the child by marrying the appellant-mother. Even though the child was born when Leider and appellant were not married, the child, if fathered by Leider, was nevertheless legitimated by their subsequent marriage.*fn3 Therefore, since the child will not be bastardized by the testimony of the mother and her then husband, the rule does not prohibit their testifying to non-access. The facts established in the record surrounding the birth of the child underscore the ...