No. 361 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Action-Law, at No. 100 July N.S. 1972.
A. D. Pyle, Pittsburgh, with him Jeannie A. Barrett, Pittsburgh, for appellant.
William F. Nee, Arnold, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 173]
Appellant contends that the lower court erred in vacating an unappealed support order, entered three years previously, on the basis of a blood test which excluded appellee as the child's father. We agree and, therefore, reverse the order of the lower court.*fn1
The pleadings and affidavits reveal the following facts. Appellant and appellee were married on July 8, 1967. In May of 1972, appellant filed a civil complaint*fn2 in the Court of Common Pleas of Westmoreland County in which she alleged that appellee had failed to support her and their three year old daughter, Stacie, since May 7, 1972. On September 26, 1972, the lower court dismissed the case without prejudice upon learning that appellee was a patient at Torrance State Hospital. However, the court subsequently re-opened the case on July 11, 1973, when it was advised that appellee had left the hospital and was gainfully employed. On July 23, 1973, appellee received notice of a support hearing to be held on August 3, 1973. A copy of that notice was also sent to appellee's attorney who had entered his appearance as appellee's counsel in prior support proceedings. Appellee appeared at the hearing on August 3, 1973, without counsel. At that time, appellant and appellee entered into a written support agreement which provided for appellee to pay appellant the sum of $200.00 per month.
[ 253 Pa. Super. Page 174]
Fifty dollars per month was for appellant's support; the remaining $150.00 per month was for the support of the two children, Stacie, born on October 18, 1968, and Julie, born on May 6, 1973. The agreement was signed and executed by both parties. In accordance with local practice, the court entered the agreement as an order of court on August 3, 1973. Appellee made support payments until November of 1973 when he was hospitalized and ceased to be employed. He did not appeal from the support order.
The case again appeared before the lower court in 1976 when appellee filed for a divorce. Prior to entering the divorce decree, the lower court, in accord with its practice, held a preliminary hearing on March 8, 1976, in order to resolve support and custody questions. Appellee appeared at that hearing and conceded that in order to expedite his divorce, and on the advice of counsel, he entered into a consent order on March 8, 1976, which provided for $150.00 per month for the support of the two children, Julie and Stacie Palchinski.
On April 26, 1976, after having obtained his divorce, appellee petitioned the lower court for and received an order directing appellant and Julie Palchinski to submit to blood tests. Appellant filed a petition to strike the order on May 13, 1976, in which she maintained that the doctrine of res judicata prevented further proceedings on the issue of paternity and thus precluded blood tests. After argument on this issue, the lower court denied the petition to strike and ordered the blood tests. The results of the blood tests excluded appellee as the father of Julie. On November 23, 1976, the lower court vacated the support order of March 8, 1976. This appeal followed.
Appellant contends that the lower court erred in ordering blood tests which enabled appellee to contest paternity three years after the entry of a support order for Julie Palchinski. Our Court has held that a support order necessarily determines the issue of paternity. If a party wishes to challenge a finding of paternity, he must do so by appealing directly ...