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DENIS J. KOLESKI v. KATHERINE D. PARK (05/04/87)

filed: May 4, 1987.

DENIS J. KOLESKI, APPELLEE,
v.
KATHERINE D. PARK, APPELLANT



Appeal from the Order entered on August 19, 1986, in the Court of Common Pleas of Bucks County, Civil Division, at No. A06-85-60858-C-15.

COUNSEL

Martin J. King, New Hope, for appellant.

Charles J. Conturso, Morrisville, for appellee.

Beck, Hester and Roberts, JJ.

Author: Beck

[ 363 Pa. Super. Page 25]

This case requires us to consider under what circumstances a court may order a party to submit to the extraction of

[ 363 Pa. Super. Page 26]

    a second blood sample for the purpose of performing additional paternity testing.

We find that constitutional rights implicated in the extraction of blood samples and resolution of questions of paternity require that the moving party show by a preponderance of the evidence that the results of the first tests were inaccurate before a second blood extraction can be ordered. This showing shall be made at a hearing before the trial court. We, therefore, reverse the trial court's order that appellant submit to the taking of a second blood sample and remand for proceedings consistent with this opinion.

On December 19, 1984, appellant Kathy Park gave birth to a daughter. Thereafter, appellee Denis Koleski instituted this action for partial custody, claiming to be the father of the child. Appellant filed an answer denying the alleged paternity and suggested blood testing to disprove appellee's paternity. On July 17, 1985, the parties entered into a stipulation to submit to the extraction of blood samples for red blood cell antigen and human leukocyte antigen (HLA) typing and grouping. The results of these tests excluded appellee Denis Koleski as the father of appellant's child.

Appellee filed a Motion for Appointment of Experts to Perform Independent Blood Tests on May 21, 1986. He claimed that the prior tests were inaccurate based on his interpretation of the lab report as indicating (1) that the blood was held seven weeks prior to the performance of the tests, and (2) that he did not possess paternal obligatory genes in the range of AW 24-BW 16, when in fact he did possess genes A-1, W24. Appellee offered no evidence, expert or otherwise, in support of his assertions.

The trial court ordered Kathy Park to submit to a second extraction of blood at Metpath Labs in Trenton, New Jersey, for tests to be performed by that lab. The order also stated that such tests would be admissible into evidence for or against any party to the action without expert testimony and without challenge to the chain of custody of the blood samples. Appellant filed a motion for a protective order, which was denied. This timely appeal followed.

[ 363 Pa. Super. Page 27]

Appellant raises the following issues on appeal: (1) whether the trial court violated her rights under the Fourth Amendment of the Constitution of the United States, and Article I, Section 8 of the Constitution of Pennsylvania, by ordering a second blood extraction without showing that the tests done on the first blood sample were inaccurate; (2) whether the trial court violated her rights under the Fourteenth Amendment of the Constitution of the United States in ordering a second blood extraction without affording her a hearing or some other proceeding in which to present her objections; (3) whether the trial court erred in ordering the second blood extraction and tests thereupon to take place at an out-of-state testing agency, to be admissible without expert testimony or challenge to the chain of custody; and (4) whether the trial judge should be required to recuse on remand of the matter to it.

We agree with appellant that the trial court erred in failing to hold a hearing on the alleged inaccuracy of the first test results and in ordering the second tests to be done at an out-of-state lab. We, therefore, reverse the order of the trial court and remand for proceedings consistent with this opinion. We do not find, however, that appellant ...


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