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MARY K. TUREK v. ALBERT HARDY (03/25/83)

filed: March 25, 1983.

MARY K. TUREK, APPELLANT,
v.
ALBERT HARDY



No. 12 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas of Fayette County, Civil Division, at No. 537 of 1980 G.D.

COUNSEL

Steve Peter Leskinen, Uniontown, for appellant.

Thomas P. Ruane, Jr., Uniontown, for appellee.

Brosky, Johnson and Montgomery, JJ. Johnson, J., files a concurring opinion.

Author: Brosky

[ 312 Pa. Super. Page 159]

The sole issue before us in this paternity action is whether the lower court erred in ruling that the results of a Human Leukocyte Antigen (HLA) test could not be used to prove paternity. Because we conclude that such test results are admissible as some proof of paternity, we reverse and remand.

The record in this case discloses that prior to trial, appellee Hardy petitioned the court to order appellant Turek and her child to submit to blood tests in order to determine whether he could be excluded as the father. Such an order was entered on June 30, 1980.

On July 1, 1980, appellant, appellee and their attorneys signed a written stipulation that the

     results of certain biochemical tests and blood grouping test (viz. HLA Test and Red Cell Test) to be performed at the University of Pittsburgh Paternity Testing Laboratory, shall be admissible at any trial of this matter without the necessity of calling any expert or custodian of records . . .

At trial, appellant attempted to introduce blood test results and certain expert testimony, but an objection to this evidence was sustained. The jury trial resulted in a verdict

[ 312 Pa. Super. Page 160]

    for appellee, Albert Hardy, and this appeal followed the denial of a motion for new trial.

It is clear that the admission or exclusion of evidence is within the sound discretion of the trial court and the exercise of such discretion will be reversed on appeal only for a clear abuse. Catina v. Maree, 272 Pa. Super. 247, 415 A.2d 413 (1980); Zadogna v. Hester, 255 Pa. Super. 517, 388 A.2d 1087 (1978).

The lower court explained in its opinion that its decision to exclude the proffered evidence was based on its belief that such evidence must be made admissible in the first instance by the Legislature.

The "Uniform Act on Blood Tests to Determine Paternity"*fn1 does permit the introduction of blood test results that exclude a defendant as a possible father and in fact provides that blood tests can serve as conclusive evidence of non-paternity. See 42 Pa.C.S.A. ยง 6136. The statute as enacted in Pennsylvania does not address the question of whether blood test results that show that a defendant is likely to be the father are admissible as proof of paternity. Such a provision was a part of the Uniform Act ...


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