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REGIS J. JOHNSON v. ELIZABETH J. BRINKER (04/13/84)

filed: April 13, 1984.

REGIS J. JOHNSON, APPELLANT,
v.
ELIZABETH J. BRINKER, APPELLEE



NO. 359 Pittsburgh, 1983, Appeal from the Order of October 29, 1982, in the Court of Common Pleas of Fayette County, Civil at No. 439 D.R. 1982.

COUNSEL

Robert J. Wetzel, Uniontown, for appellant.

Steve P. Leskinen, Uniontown, for appellee.

Brosky, McEwen and Beck, JJ.

Author: Mcewen

[ 326 Pa. Super. Page 465]

May the payment of the costs of court ordered blood grouping tests in an action for support of a child born out of wedlock be imposed upon an indigent defendant who denies paternity as a condition precedent to administration of the tests? The Common Pleas Court, after determining that both the appellee-mother and appellant-putative father were indigent and unable to make payment for the blood tests, concluded that the costs of blood grouping tests should be paid in advance by the requesting party, in this case, appellant. We reverse.

Appellee, shortly after the birth of her daughter, commenced an action for support on June 16, 1982, by filing a complaint against appellant, the alleged father of the child born out of wedlock. A solicitor for the domestic relations section of Fayette County, on behalf of appellee, then filed a motion for a non-jury paternity trial. Appellant, represented by the Southwestern Pennsylvania Legal Aid Society, Inc., thereafter filed, pursuant to the Uniform Act on Blood Tests to Determine Paternity,*fn1 a petition in which he denied paternity and sought thereby to establish his non-paternity by requesting that the court:

[ 326 Pa. Super. Page 466]

(1) Appoint experts qualified as examiners of blood types;

(2) Order and Direct [appellee, the child and appellant], to submit to various blood grouping tests before these experts for the purpose of determining whether [appellant could] be excluded as being the father of the said minor child . . .;

(3) Direct that compensation for these experts be paid by the County of Fayette in light of [appellant's] indigency, or, in the alternative, that the said compensation be otherwise taxed as costs and/or allocated among the parties and the county in such manner as the Court deems most appropriate, as per 42 Pa.C.S.A. ยง 6135 . . . .

Appellant also alleged in his petition that he was "unemployed and without income or assets sufficient to pay for the costs of said tests" and included with the petition an "Application Form for Blood Test In Forma Pauperis." The court, after concluding that both parties were indigent, on October 29, 1982, entered two orders, one of which granted the petition of appellant for blood testing and directed "[t]hat the costs of said blood grouping tests are to be paid by the defendant." The other order denied the application of appellant to proceed in forma pauperis for blood tests, but stayed all proceedings so that appellant could file an interlocutory appeal by permission.*fn2 The court then ...


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