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MARIAN TYLER v. KENNETH KING (07/12/85)

filed: July 12, 1985.

MARIAN TYLER
v.
KENNETH KING, APPELLANT



APPEAL FROM THE ORDER JUNE 2, 1983 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, FAMILY NO. 81-10152

COUNSEL

Michael S. Bomstein, Philadelphia, for appellant.

Jane C. Greenspan, Philadelphia, Assistant District Attorney, for appellee.

Cirillo, Olszewski and Beck, JJ. Beck, J., files a dissenting opinion.

Author: Cirillo

[ 344 Pa. Super. Page 82]

Appellant, Kenneth King, appeals the order of the Court of Common Pleas of Philadelphia County declaring him to be the father of Christina Tyler, daughter of appellee, Marian Tyler. Appellant seeks a new trial or reversal of the finding of paternity. We find no error, and affirm.

[ 344 Pa. Super. Page 83]

Appellee filed a complaint for support for her daughter, born April 10, 1981. At the hearing, appellant was granted a continuance so that Human Leukocyte Antigen (HLA) blood tests could be taken of himself, appellee and the child, to determine the probability of his having fathered the child. Appellant stipulated that the test results were admissible as some evidence of paternity.

Appellee testified that she met appellant on July 25, 1980, and engaged in intercourse with him that night at his home. She also stated that on several occasions from April to July, 1980, she engaged in sex with another man. Appellant claimed that he did not meet appellee until October, 1980, and that she could not have spent the night of July 25 at his home because at that time his girlfriend and their daughter were living there. On cross-examination, appellee testified that she had lied to appellant about her use of a contraceptive, and that she had told a friend of appellant that another man may have fathered the child.

At the close of appellee's case, appellant stated his belief that proper interpretation of HLA test results was a matter of statistics, and that these results lacked legal significance without expert testimony. However, he did not object to their admission into evidence. He then moved to dismiss, on the ground that the Commonwealth had not presented proper statistical evidence, in the form of expert testimony, to explain the test results. The motion was denied.

The court found appellant to be the father of appellee's child. Following this determination, an order for support was entered.*fn1

Appellant presents four questions: 1) Did the hearing court err in finding that appellant waived his right to cross-examine blood test examiners or a statistician to explain the test results? 2) Did the hearing court err in holding that appellant was not entitled to the benefit of Turek v. Hardy, 312 Pa. Super. 158, 458 A.2d 562 (1983)? 3) Did the hearing court deny appellant procedural due process

[ 344 Pa. Super. Page 84]

    when it admitted the test results without allowing appellant the opportunity to confront and cross-examine appropriate experts? 4) Did the hearing court err by reaching factual conclusions contrary to the weight of the credible evidence?

We will dispose of appellant's first and third questions together, as both concern his right to cross-examine witnesses.

Appellant relies on Section 6134 of the Uniform Act on Blood Tests to Determine Paternity,*fn2 which states:

Selection of experts

The tests shall be made by experts qualified as examiners of blood types, who shall be appointed by the court. The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties. Any party or person at whose suggestion the tests have been ordered may demand that other experts qualified as examiners of blood types perform independent tests under order of court, the results of which may be offered in evidence. The number and qualifications of such experts shall be determined by the court.

Appellant argues that the court is obliged, in all cases where blood tests are involved in a paternity question, to call those persons who conducted the tests. He further claims that his stipulation to the admissibility of the results at issue was not a waiver of the Act's protections. We find his argument to be without merit.

Appellant presents us with a simple matter of statutory construction, which is for the court's resolution. Commonwealth, Higher Education Assistance Agency v. Abington Memorial Hospital, 478 Pa. 514, 387 A.2d 440 (1978). He emphasizzes that Section 6134 uses mandatory language when it states that "experts shall be called by the court." However, it has long been the rule in Pennsylvania

[ 344 Pa. Super. Page 85]

    that the word "shall," although usually mandatory or imperative when used in a statute, may nonetheless be directory or permissive, depending upon the Legislature's intent; we ascertain this intent after reviewing the entire act, its nature, object and purpose, the respective consequences of various constructions of the particular statute, and after determining whether the action allegedly mandated by the statute is the essence of the thing to be done pursuant to it. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965); Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 417 Pa. 299, 208 A.2d 271 (1965); Prichard v. School District of Willistown Township, 394 Pa. 489, 147 A.2d 380 (1959); Pennsylvania R. Co. v. Board of Revision of Taxes, 372 Pa. 468, 93 A.2d 679 (1953); In re Nomination Papers of American Labor Party, 352 Pa. 576, 44 A.2d 48 (1945); National Transit Co. v. Boardman, 328 Pa. 450, 197 A. 239 (1938); Commonwealth v. Kowell, 209 Pa. Super. 386, 228 A.2d 50 (1967); Wielebinski v. Unemployment Compensation Board of Review, 197 Pa. Super. 292, 178 A.2d 783 (1962); County of Allegheny v. Pennsylvania Public Utility Commission, 192 Pa. Super. 100, 159 A.2d 227 (1960); Borough of Pleasant Hills v. Carroll, 182 Pa. Super. 102, 125 A.2d 466 (1956) (allocatur denied); Turner v. Unemployment Compensation Board of Review, 163 Pa. Super. 168, 60 A.2d 583 (1948); Appeal of Baldwin, 153 Pa. Super. 358, 33 A.2d 773 (1943); Kuzmen v. Kamien, 139 Pa. Super. 538, 12 A.2d 471 (1940). See also Commonwealth v. Hess, 270 Pa. Super. 501, 411 A.2d 830 (1979), appeal dismissed, 499 Pa. 206, 452 A.2d 1011 (1982); Commonwealth, Human Relations Commission v. Transit Casualty Insurance Co., 478 Pa. 430, 387 A.2d 58 (1978); Sohmer v. Sohmer, 318 Pa. Super. 500, 465 A.2d 665 (1983); Fireman's Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa. Super. 497, 464 A.2d 431 (1983).

In particular, where a statute's mandatory language pertains to the action of a court, it is usually a grant of authority. Anderson's Appeal, 215 Pa. 119, 64 A. 443

[ 344 Pa. Super. Page 86]

(1906); Becker v. Lebanon & M. St. Ry. Co., 188 Pa. 484, 41 A. 612 (1898). Compare Morrison v. Unemployment Compensation Board of Review, 141 Pa. Super. 256, 15 A.2d 391 (1940) (statute purporting to require a deliberative body to render a discretionary decision within a stated time will be construed to be directory). The statute at issue here clearly concerns the power of the court, by presuming to oblige the court to call specified witnesses. It therefore can be construed on this basis alone as merely granting the court the authority to do so.

In addition, the intent and purpose of the Act are twofold. First, the Legislature believed that admission of blood test evidence would be helpful in suits where paternity is an issue, because these tests permit scientifically reliable exclusion of a given man from the group of those who could be a certain child's father. See Hummel v. Smith, 301 Pa. Super. 276, 286-87, 447 A.2d 965, 970 (1982) (Beck, J., concurring). However, Section 6134 seeks to protect putative fathers from adverse determinations based on blood test results not sufficiently reliable or adequately administered, and from the undue impression which "expert" evidence can make on a trier's mind. The Act's purpose is thus the same as the rule for expert testimony: to allow qualified "opinion" testimony in order to explain to the trier a subject matter which is beyond the experience and comprehension of the ordinary layman. See In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983); Zenith Radio Corporation v. Matsushita Electric Industrial Co., Ltd., 505 F.Supp. 1313 (E.D.Pa. 1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967); Swartz v. General Electric Co., 327 Pa. Super. 58, 474 A.2d 1172 (1984). Where the expert witness performed the test or experiment at issue, as is the case under Section 6134, calling him to testify allows a party to inquire into the circumstances surrounding the test, the factors influencing its result, the variables which could affect the result, and the procedures used in recording and preserving the result.

[ 344 Pa. Super. Page 87]

Parties are thus protected from any prejudice which may occur from the admission of scientific data which was not accurately gathered, analyzed or recorded.

However, we disagree with appellant that Section 6134 requires the court to call the described experts in all cases. First, the Act itself allows paternity determinations to be made without blood tests. Section 6133 states that "[i]f any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require" (emphasis added). See also Smith v. Beard, 326 Pa. Super. 95, 473 A.2d 625 (1984). In addition, expert testimony is not the sole or paramount form of evidence used in paternity cases. Section 6132(b)(3), governing the use of blood tests in criminal proceedings, allows the court to direct a verdict for the defendant "upon the conclusions of all the experts under the provisions of Section 6136 (relating to effect of test results), otherwise the case shall be submitted for determination upon all the evidence" (emphasis added). Section 6136, in turn, provides that "[i]f the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence" (emphasis added).

These sections of the Uniform Act demonstrate the Legislature's second intent, that the trier of fact decide paternity questions on all the evidence, not just on the pronouncements of experts. This is true even in a criminal prosecution, where the burden of proof is far higher and the defendant has such significant interests at stake. Logically, a "trier of fact" would be unnecessary in paternity cases if the verdicts were to be reached by the witnesses.

One final consideration supports our conclusion that Section 6134 does not mandate the calling of experts in every paternity case.

Such a requirement would give the parties to a paternity case a protection unavailable to other litigants. The defendant in a paternity case is ...


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