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decided: September 11, 1969.


Appeal from order of Court of Common Pleas of Philadelphia County, Dec. T., 1968, No. 4274, in case of Commonwealth ex rel. Mildred Hall v. Albert S. Hall.


Harry J. Oxman, with him Silverberg and Oxman, for appellant.

Henry N. Fineman, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Wright, P. J. Dissenting Opinion by Hoffman, J. Spaulding and Cercone, JJ., join in this dissenting opinion.

Author: Wright

[ 215 Pa. Super. Page 25]

This appeal arises as the result of a petition filed by Mildred Hall requesting that an order be entered against her former husband, Albert S. Hall, for the support of a child, Lisa, born July 14, 1965. Albert filed an answer denying paternity, together with a petition requesting blood grouping tests. On January 29, 1969, the court below entered an order requiring these tests, and Mildred has appealed.

The record discloses that Albert and Mildred were married on July 22, 1961. Thereafter they lived together until January, 1965, at which time Mildred left the home. Three months later there was a reconciliation, and the parties resumed marital cohabitation. As previously indicated, Lisa was born July 14, 1965. The

[ 215 Pa. Super. Page 26]

    parties finally separated in November, 1967, the child remaining with the wife. On May 23, 1968, a separation agreement was executed, paragraph No. 4 of which is set forth in the footnote.*fn1 On June 18, 1968, Mildred instituted divorce proceedings, and a final decree was granted in October, 1968. Since Albert had stopped making support payments, Mildred filed a petition, December 3, 1968, requesting that a support order be entered for Lisa. In his answer denying paternity, Albert alleged that he had entered into the separation agreement upon advice of counsel, and that he had reasonable grounds to doubt that Lisa was his child.

Albert's petition requesting blood grouping tests was filed under the Uniform Act on Blood Tests to Determine Paternity. Act of July 13, 1961, P. L. 587, 28 P.S. 307.1 et seq. The allegations in this petition are set forth in the opinion below as follows: "In summary, they are that, for a year prior to the birth of the child, the wife was constantly visited by a certain named individual, a man, at the home of the parties, against defendant's instructions and frequently without his knowledge. The defendant worked at the

[ 215 Pa. Super. Page 27]

    post office from 9:00 p.m. to 6:00 a.m. This led to the separation of the parties about six months prior to the birth of the child, which separation lasted for about three months, after which the parties reconciled and the wife returned home. The child was born three months later and, shortly thereafter, the named male individual again began visiting the home of the parties in defendant's absence and staying until the early hours of the morning. The final separation occurred . . . when the defendant came home early one morning in November, 1968, and was admitted by his wife, who was entirely in the nude, and found the named male individual in the kitchen in his underwear. The defendant further avers, upon information and belief, that the named male individual has admitted paternity of the child".

Our analysis of appellate decisions dealing with the requirement of blood grouping tests in actions for child support properly commences with the case of Commonwealth ex rel. O'Brien v. O'Brien, 182 Pa. Superior Ct. 584, 128 A.2d 164. We therein held, in an opinion by the writer affirming an order of the Municipal Court entered by our present colleague, the Honorable Theodore O. Spaulding, that the husband did not have the right to demand blood grouping tests under the Act of May 24, 1951, P. L. 402, which related to proceedings to establish paternity, because that statute was not intended to apply to actions for support of children born during wedlock. Our decision was affirmed by the Supreme Court. See Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451.

The next case to come before us was Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Superior Ct. 274, 184 A.2d 351. In the meantime, the legislature had repealed the Act of 1951, and had adopted the Uniform

[ 215 Pa. Super. Page 28]

Act.*fn2 Mrs. Goldman had given birth to three children. No question was raised as to the oldest child, but the husband denied paternity of the two younger children. An order directing blood grouping tests was affirmed. However, in his opinion for the majority, Judge Woodside said: "We think that his right to question the paternity is not unlimited. Where the husband has accepted his wife's child and held it out as his own over a period of time, he is estopped from denying paternity . . . It does not appear from the record before us that the defendant is guilty of laches, nor of such ...

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