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LESLIE WARE v. JOSEPH MCKNIGHT (10/26/87)

filed: October 26, 1987.

LESLIE WARE, APPELLANT
v.
JOSEPH MCKNIGHT



Appeal from the Order November 28, 1986 in the Court of Common Pleas of Philadelphia County, Family Court Division No. 80-04989.

COUNSEL

Matthew K. Perks, Assistant District Attorney, Philadelphia, for appellant.

Francis X. Nolan, Philadelphia, for appellee.

Cirillo, President Judge, and McEwen and Tamilia, JJ. Tamilia, J., dissents.

Author: Cirillo

[ 368 Pa. Super. Page 503]

This is an appeal from a denial of appellant's petition for reconsideration and to reopen to allow additional evidence, or in the alternative, a new trial. Appellant argues that the

[ 368 Pa. Super. Page 504]

Court of Common Pleas of Philadelphia County erred in denying her petition. We affirm.

The appellant presents three issues for our review: (1) whether the trial court erred in finding evidence insufficient to overcome the presumption of legitimacy; (2) whether the trial court erred in failing to consider the results of the HLA blood testing requested by and stipulated to by appellee; and (3) whether the trial court abused its discretion in refusing to grant a new trial after being informed of the after-discovered evidence.

Appellant, Leslie Ware, met appellee, Joseph McKnight, on May 15, 1976 and lived with him for almost three years. She became pregnant in November of 1977, and her child was born on August 7, 1978. Although appellant admitted she was married to another man in 1974, and not divorced from her husband until April 13, 1982, she testified that she had sexual relations only with appellee during October through December of 1977. Appellant indicated that during her relationship with appellee, her husband was involved with another woman. The parties continued living together for approximately nine months after the child was born. Appellee denies any sexual relations with appellant, but admits giving her fifty-eight dollars in 1985 because she was harassing him at work.

On July 23, 1980, a complaint for support was filed against appellee by the Pennsylvania Department of Public Welfare. At the first listing on August 18, 1980, no one appeared. The case was then referred to the Parent Locater Service. Appellee was located in California, so appellant was asked to file a complaint under the Uniform Reciprocal Enforcement of Support Act. 42 Pa.C.S.A. ยง 6761 et seq. On May 28, 1985, appellant filed a petition for support with the Philadelphia Domestic Relations Section.

On December 11, 1980, appellee appeared at a pretrial conference where he denied paternity of the child. He requested blood studies and signed a stipulation of admissibility. Although appellant was not present at the pretrial

[ 368 Pa. Super. Page 505]

    conference, this proceeding was entered on the docket. Therefore it became part of the record.

After several continuances, a non-jury trial was held on June 11, 1986. Prior to trial, appellee's counsel refused to stipulate to the admissibility of the blood test and appellant's counsel agreed to proceed to trial without the stipulation. Appellant's counsel never offered the results of the blood test as evidence. On July 24, 1986, the trial judge entered an order denying appellant's petition for support.

On August 6, 1986, appellant filed exceptions and a petition for reconsideration and to reopen to allow additional evidence, or for a new trial. After a hearing on November 28, 1986, the judge denied this petition. This appeal followed.

Appellant first alleges that the trial court erred in finding the evidence insufficient to overcome the presumption of legitimacy. There is a strong presumption that children who are born in wedlock are legitimate. In re Manfredi's Estate, 399 Pa. 285, 159 A.2d 697 (1960); Commonwealth ex. rel. Spangler v. Spangler, 283 Pa. Super. 190, 423 A.2d 1053 (1980). To overcome this presumption, the burden rests on appellant to show clear, direct, convincing and unanswerable evidence of non-access or lack of sexual intercourse or impotency. Connell v. Connell, 329 Pa. Super. 1, 477 A.2d 872 (1984).

Here, appellant's only evidence to overcome the presumption of legitimacy was that her husband was involved with another relationship while she was involved with appellee. The trial judge found this evidence did not overcome the presumption of legitimacy.

When, upon review, the issue is whether evidence presented was clear, direct, precise, and convincing, a question of law is presented and such issue is clearly for determination by appellate courts. In re Nicolazzo's Estate, 414 Pa. 186, 199 A.2d 455 (1964). The trial court's conclusions of law are not binding on an appellate court, whose duty is to determine whether there was proper

[ 368 Pa. Super. Page 506]

    application of law to fact by the trial court. 2401 Pennsylvania Ave. Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 507 Pa. 166, 489 A.2d 733 (1985); Linnet v. Hitchcock, 324 Pa. Super. 209, 471 A.2d 537 (1984). Although this court is not bound by the trial court's findings, where appellant's only evidence is that her husband was involved with another relationship, this court agrees with the trial court that the evidence is not clear and convincing so as to overcome the presumption of legitimacy.

Appellant next claims that the trial court erred in not taking judicial notice of the results of the HLA blood testing requested by and stipulated to by appellee. This claim lacks merit because counsel never requested the judge to take notice of results of the blood test. See Chaplin v. Pelton, 282 Pa. Super. 487, 423 A.2d 8 (1980) (the trial court could not take judicial notice of the effect of a tax deed without the request to take such notice). In the present case, counsel stated, "I was under the impression that there might be a stipulation between counsel, but evidently there will not be a stipulation as to the admissibility. So we are prepared to go forward, Your Honor." Counsel proceeded to trial without ever requesting the judge to take notice of the results of the blood test or the stipulation.

Upon review, an appellate court may take judicial notice of a fact to the same extent as the trial court. Goff v. Armbrecht Truck Sales, Inc., 284 Pa. Super 268, 426 A.2d 628 (1980). See also Tallman v. Florey, 179 Pa. Super. 354, 115 A.2d 752 (1955) (where a reviewing court could not take judicial notice of a medical treatise which had not been introduced into evidence). Upon review of the present case, this court cannot take notice of the results of the blood test or the stipulation of admissibility because the trial court did not take judicial notice of them and they were never offered into evidence.

As a final issue, appellant contends that the trial judge abused his discretion in refusing ...


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