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08/20/97 DIANNA L. CABLE v. EMMANUEL S. ANTHOU

August 20, 1997

DIANNA L. CABLE, APPELLANT
v.
EMMANUEL S. ANTHOU, APPELLEE



Appeal from the Order of the Superior Court entered April 11, 1996 at 1409PGH95 reversing and remanding the Order of the Court of Common Pleas of Washington County, Civil Division, dated June 26, 1995 at 1465 DR 1993. Composition OF The Court: Mr. Chief Justice John P. Flaherty, Zappala, Cappy, Castille, Nigro, Newman, JJ.

The opinion of the court was delivered by: Newman

MADAME JUSTICE NEWMAN

DECIDED: AUGUST 20, 1997

This appeal stems from a child support action in which the Court of Common Pleas of Washington County (trial court) ordered Appellant Dianna Cable (Cable), her daughter, and Appellee Emmanuel Anthou (Anthou) to submit to a second buccal swab *fn1 DNA paternity test after the first buccal swab DNA test revealed that Anthou was not the father of Cable's child. Cable appeals from the Superior Court Order reversing the Order of the trial court. The issue before us is whether the trial court may compel Anthou to submit to a second, duplicate buccal swab DNA test absent evidence that the initial test was not reliable for the determination of paternity. We hold that the party requesting an additional paternity test must prove that the first test was defective before the court can compel a second paternity test. We, thus, affirm the Order of the Superior Court.

FACTUAL AND PROCEDURAL HISTORY

On November 3, 1993, Cable gave birth out-of-wedlock to a baby girl. The birth certificate lists Anthou as the father. Although Anthou and Cable had arranged to give the baby up for adoption, after the birth, Cable decided to raise the child as a single parent. On December 30, 1993, Cable filed a petition seeking child support from Anthou, who denied paternity at a support hearing on February 1, 1994. The court ordered the parties to submit to blood testing pursuant to Section 4343 of the Domestic Relations Code, 23 Pa.C.S. § 4343, which governs genetic testing to determine paternity of children born out-of-wedlock. Prior to the date set for the blood testing, Washington County changed the method of testing from blood extraction to buccal swab DNA sampling.

Roche Biomedical Laboratories (Roche) administered the buccal swab tests, which revealed that Anthou was excluded as the father. *fn2 At Anthou's request, the trial court issued a Rule to Show Cause why it should not dismiss the support complaint. Cable filed an Answer and New Matter, asserting the following: (1) Anthou was estopped from denying paternity because of his numerous acknowledgments of fatherhood before the paternity test; and (2) the buccal swab paternity testing is scientifically flawed, therefore a blood test should be administered. *fn3

The trial court rejected the estoppel argument but ordered an evidentiary hearing on the issue of the scientific soundness of the buccal swab test. Cable submitted the expert report of Moses Schanfield, Ph.D., Laboratory Director of the Analytical Genetic Testing Center, Inc., in which he stated that his company does not use buccal swab DNA tests for paternity cases because they preclude the use of non-DNA markers, such as blood type and blood grouping, that are available through blood tests to verify that a mix-up in samples has not occurred. Dr. Schanfield did not, however, state that the test conducted in this case was defective or inaccurate, or that buccal swab DNA tests in general are unreliable.

Clifton Harris, Ph.D., Associate Director, Department of Paternity Evaluation, Roche Biomedical Laboratories, Inc., testified at the hearing regarding Roche's method of obtaining and testing the buccal swab samples. He estimated that Roche conducts approximately 50,000 paternity tests per year, from both blood and buccal swab samples, and of those, he was aware of only one case in which a blood sample had been mislabeled. He did not believe that the tests here were mishandled. Furthermore, he opined that buccal swab DNA testing is more accurate in excluding fathers than HLA blood grouping tests. Even if an HLA blood grouping test included Anthou as the father in this case, he would nevertheless conclude that Anthou was not the father based on the results of the DNA test.

Cable also presented another expert, Jeanne Thomas, Ph.D., who described the difference between the type of DNA testing she performs in the molecular diagnostic lab at Allegheny General Hospital and the type of testing performed by Roche. She did not testify that Roche's method of testing is inherently unreliable, nor did she state that Roche did not correctly perform the tests in this case. Instead, Dr. Thomas was concerned about a sample mix-up because the preprinted sample collection form that the Roche technician used was for blood samples, not buccal swabs. *fn4 She could not, however, cite any other reason for her concern.

The trial court concluded that Cable did not prove by a preponderance of the evidence that the buccal swab DNA tests were scientifically flawed; therefore, Cable was not entitled to a second test in the form of HLA blood grouping pursuant to DeAngelo v. Murray, 536 Pa. 206, 638 A.2d 966 (1994) (denying request for additional blood test because proponent did not first demonstrate that the initial blood test was unreliable). The trial court also rejected Cable's argument that she was entitled to an HLA test as additional evidence to the DNA test pursuant to Mastromatteo v. Harkins, 419 Pa. Super. 329, 615 A.2d 390 (1992) (permitting DNA tests subsequent to HLA blood grouping test without showing that HLA test was not dependable because DNA test would provide additional, more accurate determination of paternity). Nevertheless, after concluding that the buccal swab does not implicate Fourth Amendment privacy considerations due to its minimal intrusiveness, the trial court ordered the parties to submit to a second buccal swab DNA test. Anthou appealed to the Superior Court.

The Superior Court reversed the trial court and held that despite the degree of "intrusiveness" of a buccal swab, a proponent is not entitled to an additional round of paternity tests pursuant to DeAngelo unless he or she first proves that the latest test was unreliable. It reasoned that DeAngelo was not premised on Fourth Amendment considerations, but instead on the reliability of the initial test. The Superior Court held that unless the proponent of the second test demonstrates that there is reason to doubt the accuracy of the first test, a subsequent test would be duplicative and irrelevant; *fn5 therefore, it remanded for further proceedings.

We granted allocatur to decide whether a trial court can order a second buccal swab DNA test to decide paternity when there is no evidence that the first buccal swab test was inaccurate. We hold that unless the person requesting the second test proves, by a preponderance of the evidence, ...


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