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PATERNITY JEFFREY MENGEL. JAMES MCGARRITY v. KATHY MENGEL. APPEAL JAMES MCGARRITY (05/15/81)

filed: May 15, 1981.

IN RE PATERNITY OF JEFFREY MENGEL. JAMES MCGARRITY
v.
KATHY MENGEL. APPEAL OF JAMES MCGARRITY



No. 1211 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action Equity, at No. 80-5152.

COUNSEL

James McGarrity, Norristown, appellant, in pro. per.

Allan Greenwood, Phoenixville, did not file a brief on behalf of appellee.

Spaeth, Brosky and Hoffman, JJ. Spaeth, J., files concurring opinion. Hoffman, J., joins in both opinions.

Author: Brosky

[ 287 Pa. Super. Page 188]

Appellant filed a petition seeking a declaratory judgment of whether he is the father of the child, Jeffrey. He asked that the court order blood tests to be taken to make this determination and that other appropriate relief be granted if he is found to be the father. He alleged that it is physically possible that he is the boy's father and that the appellee, the mother, so claimed prior to Jeffrey's birth. Preliminary objections to his petition were sustained and it was dismissed.

[ 287 Pa. Super. Page 189]

The central issue before us is whether appellant has standing to obtain the relief he seeks through a petition of declaratory judgment. The lower court found that he did not. We disagree and therefore reverse the decision of the lower court and remand for further proceedings.

Standing requires an aggrieved party to show a substantial, direct and immediate interest in the subject matter of the litigation. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). In Administrative Law, Kenneth Culp Davis explained the essential element of the standing concept. He wrote: "Every issue of standing, . . ., involves the basically simple problem of whether or not petitioner's asserted interest is in the circumstances deserving of legal protection." K. C. Davis, Administrative Law, (1951) at 714.*fn1

The United States Supreme Court has held that an unwed father has a cognizable and substantial interest in obtaining custody of his children and that this interest is deserving of protection. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). See: State ex rel. Rothstein v. Lutheran Social Services (Memorandum Opinion), 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786 (1972).

This court has recognized the rights of unwed fathers. In the case of Commonwealth ex rel. Peterson v. Hayes, 252 Pa. Super. 487, 381 A.2d 1311 (1977), we held that whether an unwed father should have visitation rights is to be decided by the same standard as is applied in the case of legitimate children.

We wrote:

In Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208 [1213], 31 L.Ed.2d 551 (1972), it was held that the interest of a father in his illegitimate child was "cognizable and substantial." Id., 252 Pa. Super. at 492, 381 A.2d at 1314 . . . . It is only the father of an illegitimate child who has been relegated to a secondary position. To the

[ 287 Pa. Super. Page 190]

    extent that this secondary position depends on the traditional differentiation between the roles of a mother and a father it can no longer be accepted or enforced. Id., 252 Pa. Super. at 491, 381 A.2d at 1313.

In Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976), our Supreme Court held that unwed fathers have the right to contest the adoption of their children.

Inheritance rights of unwed fathers are provided in Title 20 P.S. § 2107 which provides:

(c) Child of father. -- For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:

(1) If the parents of the child born out of wedlock shall have married each other.

(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

As amended 1978, Nov. 26, P.L. 1269, No. 303, § 1, imd. effective.*fn2

Appellant argues that he has standing to obtain a declaratory judgment and the supplemental relief he seeks because a determination that he is the child's father would confer upon him the rights that accrue from paternity. He refers to inheritance rights and to his right to contest the adoption of a child found to be his as illustrative of the fact that an unwed father has rights with respect to his children.

[ 287 Pa. Super. Page 191]

As we have seen, unwed fathers do have the rights to which appellant refers. Those rights create a substantial, direct and immediate interest in the determination that one is the father of a child. Appellant seeks protection of those rights via a declaratory judgment action. Section 7531 of the Declaratory Judgments Act*fn3 provides that:

Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.

What appellant seeks to establish is his status as parent, his legal relation to the child and the protection of those rights that accrue from this relationship.

While we find no case in Pennsylvania in which a putative father has used declaratory judgment proceedings to determine paternity, declaratory judgment proceedings have been utilized in Pennsylvania to determine parentage and legitimacy. See Liddick v. Louden, 52 D & C 402 (1945), Spencer v. Spencer, 47 D & C 192 (1942).

Section 7541 of the Declaratory Judgments Act states in ...


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