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decided: November 22, 1976.


Appeal from Order dated November 13, 1975, of the Court of Common Pleas, Criminal, County of Berks, at No. 731 S, 1971. No. 582 October Term, 1976.


David L. Allebach, Jr., Pottstown, for appellant.

Louis M. Shucker, Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Spaeth, J., files a concurring opinion.

Author: Cercone

[ 245 Pa. Super. Page 309]

This is an appeal from an order of the court below denying appellant Kenneth Andreas' petition to terminate his obligation to support appellee's minor child. The unique events giving rise to this appeal are as follows. In January of 1968, appellant arrived in Germany as a member of the United States Army. Shortly after his arrival appellant met and engaged in sexual relations with the appellee. Appellee was unmarried at the time, but was the mother of two illegitimate children. On this first encounter appellee expressed her belief that she was currently pregnant. Subsequent events, however, led the parties to conclude that she was not in fact pregnant at the time of their initial meeting. In any event they continued to cohabitate and appellee became pregnant and advised appellant that he was the father. On August 2, 1968, appellee gave birth and informed the hospital that appellant was the baby girl's father.

On February 5, 1969, the parties married and lived together until May of 1969 when appellant was sent to Viet Nam where he remained until the summer of 1970. In the meantime, the child's surname was changed to that of appellant's. In addition, the parties executed various immigration documents to enable appellee and her child to emigrate to the United States. Pursuant to the execution of these papers, appellant admitted paternity of the child and promised that he would support her.

[ 245 Pa. Super. Page 310]

On July 3, 1970, appellee and the child joined appellant in the United States. They lived together as a family until September of 1971 when appellee and appellant separated. On October 22, 1971, the parties entered into an amicable order of support under which appellant agreed to pay $30 a week for the support of appellee and the child. This order was reduced to $22.50 per week on April 10, 1972. When the parties appeared before the lower court in April of 1972, appellant stated that certain statements by appellee led him to believe that he was not the child's natural father. The court entered the support order without prejudice to either party and advised appellant to obtain counsel and raise the paternity issue in the proper manner. On December 31, 1973, the support order was further reduced to $12.50 per week for the support of the child only.

Nothing further transpired until February 26, 1975, when appellant filed a petition requesting that blood tests be taken to establish paternity. The tests, which were conducted on May 28, 1975, indicated that appellant was not the natural father. On July 8, 1975, appellant petitioned for termination of his support obligation. On January 8, 1976, the lower court denied the petition and directed that the previous order requiring appellant to pay $12.50 a week support for the child remain in full force and effect. This appeal followed, raising the issue of whether appellant is equitably estopped from denying paternity.

In Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Super. 274, 184 A.2d 351 (1962), the husband denied paternity of two children born during wedlock and petitioned for blood grouping tests. Although we affirmed the lower court's order that blood tests be taken, we observed that: "We think that [the husband's] right to question the paternity is not unlimited. Where the husband has accepted his wife's child and held it out as his

[ 245 Pa. Super. Page 311]

    own over a period of time, he is estopped from denying paternity." Id. at 283, 184 A.2d at 355.

Only one year later in Commonwealth ex rel. Weston v. Weston, 201 Pa. Super. 554, 193 A.2d 782 (1963), we reversed a lower court order directing the parties to submit to blood grouping tests. In Weston the husband questioned the paternity of two children born to his wife during wedlock. We held that since the husband lived with his wife from three to four years after the birth of the children, and accepted them as his own prior to petitioning for the blood tests, he was now estopped from denying paternity.

Similarly, in Commonwealth ex rel. Hall v. Hall, 215 Pa. Super. 24, 257 A.2d 269 (1969), we held that where a husband waited almost five years after the child's birth to question paternity, and executed a separation agreement which acknowledged the child to be his own, he was estopped from challenging paternity by requesting a blood grouping test.

Although all of the foregoing cases arose in the context of requests for permission to take blood tests, we are of the opinion that the doctrine of equitable estoppel is also applicable in the instant case where the parties have already submitted to the tests. In either case we believe the dispositive issue should be whether the putative father has indicated by his conduct that the child is his own. Nor do we feel a different result should obtain where the child is born out of wedlock, provided the putative father, as in the present case, subsequently marries the mother and accepts and recognizes the child as his natural issue. For it is fundamental that "[e]quitable estoppel applies to prevent a party from assuming a position or asserting a right to another's disadvantage inconsistent with a position previously taken. P.L.E. Estoppel ยง 21." Blofsen v. Cutaiar, 460 Pa. 411, 333 A.2d 841, 843 (1975). In short, equitable estoppel, reduced to its essence, is a doctrine of fundamental fairness designed

[ 245 Pa. Super. Page 312]

    to preclude a party from depriving another of a reasonable expectation when the party inducing the expectation albeit gratuitously knew or should have known that the other would rely upon that conduct to his or her detriment.

Instantly, the child was born in August of 1968 and the parties were married in February of 1969. Although interrupted by appellant's tour of service in Viet Nam, the parties lived together for approximately three years following the child's birth. During this period appellant supported the child as his own and never expressed any doubts about the child's parentage. Most significantly, some fifteen months after the child was born appellant executed various immigration documents and affidavits in which he represented that he was the child's natural father and that the infant would not be a public charge in the United States. It was only after the parties separated that he questioned paternity. Absent any overriding equities in favor of the putative father, such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized. Relying upon the representation of the parental relationship, a child naturally and normally extends his love and affection to the putative parent. The representation of parentage inevitably obscures the identity and whereabouts of the natural father, so that the child will be denied the love, affection and support of the natural father. As time wears on, the fiction of parentage reduces the likelihood that the ...

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