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JOHN M. v. PAULA T. AND MICHAEL T. (08/18/88)

filed: August 18, 1988.


Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 85-6320.


Steven B. Moss, Media, for appellant.

Scott D. Galloway, Media, for appellees.

Rowley, Wieand and Montemuro, JJ.

Author: Wieand

[ 377 Pa. Super. Page 75]

The principal issue in this appeal is whether a plaintiff who claims to be the biological father of a child born to a married woman can compel the mother's husband, who is a party to the action, to submit to Human Leukocyte Antigen (HLA) testing to assist the court in determining paternity. In the instant case, the trial court refused to order such testing and determined, after hearing, that plaintiff had failed to overcome the presumption of legitimacy which attached to the child's birth during coverture. From the dismissal of his complaint seeking to enforce visitation, the plaintiff appealed.

John M. and Paula T. met at work and began to see each other socially in September, 1977. By early 1978, they had become sexually intimate. Paula was then engaged to marry Michael T. Nevertheless, the relationship between John and Paula continued. John testified that they had discussed Paula's calling off the marriage but that Paula had declined, saying her parents ". . . would kill her if she called it off." In any event, the relationship came to an end in August, 1978, and Paula, in September, 1978, was married to Michael T. In March, 1979, however, Paula and John resumed their sexual liaison. On June 6, 1980, Paula gave birth to her first child. John has not claimed to be the father of this child.

After her first child had been born, Paula again renewed her affair with John. During January and February, 1981, they met several times in motels, where they engaged in sexual intercourse without birth control protection. In March, 1981, Paula discovered that she was pregnant, and on November 3, 1981 a second child, H.T., was born. During this pregnancy, according to John's testimony, Paula said that she thought John was the father of the child, and they discussed Paula's getting a divorce from her husband. John also said that on the day when Paula went to the hospital, she called him before and after H.T.'s birth to

[ 377 Pa. Super. Page 76]

    arrange a time for John to visit. John produced photographs of the baby which, he said, he had taken during his hospital visit. After H.T.'s birth the relationship between John and Paula was again renewed and continued until September, 1983, when it was terminated. Between November, 1981, and September, 1983, according to John, he continued to visit H.T. He also produced cards which had been sent to him by Paula, including a Father's Day card which contained H.T.'s name. He also offered photographs of mother and child which, according to his testimony, he had taken on the various occasions on which he had visited Paula and H.T. The only reason he had not contributed to the child's support, he said, had been Paula's fear of being unable to explain the source of the money to her husband. Meanwhile, John opened a trust account for H.T.

In 1984, after their intimate relationship had come to an end, Paula refused to allow John to see the child. She admitted, when called as of cross-examination, that she had had intercourse with John in early 1981, but said that she could not recall any discussion with him about the possibility of his being the father and denied any discussion about her getting a divorce. She said that the last occasion on which they had had intercourse had been in December, 1981. She also denied that John had visited her at the hospital after H.T.'s birth but conceded that she had sent a Father's Day card. She explained that John had been a friend whom she wished to cheer up. She denied any knowledge that John was claiming to be H.T.'s father.

In December, 1984, Paula, her child, and John submitted to HLA testing. The results, as interpreted by an expert whose deposition and report were admitted at the hearing, showed a 97.471% probability that John was the natural father as compared to a random male. The test also showed that he was 38 times more likely to provide the required genes for the child than a random male. The expert concluded that this percentage was "in the mid range of results" compared to test results in other cases "in which the alleged father was not excluded."

[ 377 Pa. Super. Page 77]

Michael T. did not participate in a blood test to determine paternity. He testified that he and his wife had never been separated and had engaged regularly in sexual intercourse. During December, 1980 and January and February, 1981, they had engaged in marital relations three or four times a week. He testified that he had been at the hospital when H.T. had ...

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