Appeal from the Judgment of the Superior Court dated January 22, 1985 at No. 344 Harrisburg, 1983 affirming the Order of the Court of Common Pleas of Cumberland County Pennsylvania, Civil Action Law entered on August 1, 1983 at No. 454 Support 1982; 341 Pa. Super. 627; 491 A.2d 926 (1985).
Daniel K. Deardorff, Carlisle, for appellant.
Michael R. Rundle, Carlisle, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a dissenting opinion.
We granted this petition for allowance of appeal from an order of the Superior Court, 341 Pa. Super. 627, 491 A.2d 926, affirming the lower court's grant of a new trial. The issue at trial was whether Cloyd Shaffer, appellant, was the biological father of an infant born to appellee, Shirley Smith.
A jury trial was held in the Court of Common Pleas of Cumberland County. At trial, appellee testified that she had had sex only with appellant during the possible conception period. Appellee's expert witness, a hemotologist, testified that blood tests conducted on appellant, appellee, and the infant included both red and white cell Human Leucocyte Antigen (HLA) bloodgrouping tests and that those blood tests established, in his opinion, a 99.99 percent probability that appellant was the biological father. His expert opinion was based upon the premise that blood types are inheritable according to genetic principles and the generally accepted reliability of HLA tests.
Appellant denied ever having had sex with appellee. Appellant also called as a witness Ed Smith, appellee's brother, (who is also appellant's stepbrother) who testified that he saw appellee's stepfather (Ed Smith's biological father) sexually fondle appellee during the possible conception period. Ed Smith also testified that he was present when appellee's mother took appellee and appellee's sisters to truck stops, where the girls would leave Ed Smith in the car and go to various trucks and return with money. The purpose of this testimony was to raise an inference that, contrary to appellee's assertions, she had engaged in sexual activity with persons other than appellant during the conception period.
The jury rendered a verdict in favor of appellant. The Court of Common Pleas, sitting en banc, granted appellee's post-trial motion for a new trial on two grounds. First, the court held that the verdict was against the weight of the evidence, stating:
"While we may not grant a new trial merely because there is a conflict in the evidence and we would have arrived at a different conclusion than the jury, in light of the strong scientific evidence supporting the [appellee's] claim and the lack of credible ...