Commonwealth ex rel. O'Brien v. O'Brien

• Decision Date: 18 November 1957
• Docket Number: 2884
• Citation: 390 Pa. 551,136 A.2d 451
• Parties: COMMONWEALTH of Pennsylvania ex rel. Adele T. O'BRIEN v. Robert J. O'BRIEN, Appellant.
• Court: Pennsylvania Supreme Court

136 A.2d 451

390 Pa. 551

COMMONWEALTH of Pennsylvania ex rel. Adele T. O'BRIEN v. Robert J. O'BRIEN, Appellant.

No. 2884

Supreme Court of Pennsylvania

November 18, 1957

Argued May 29, 1957

Appeal, No. 274, Jan. T., 1957, from judgment of Superior Court, Oct. T., 1955, No. 212, affirming order of Municipal Court of Philadelphia County, Domestic Relations Division No. 126298, in case of Commonwealth of Pennsylvania ex rel Adele T. O'Brien v. Robert J. O'Brien. Judgment affirmed.

Same case in Superior Court: 182 Pa.Super.Ct. 584.

Proceeding upon petition of relatrix for increase of support order and for inclusion of additional child. Before SPAULDING, J.

Order entered for increased amount, to include additional child. Defendant appealed to the Superior Court, which affirmed the order of the court below. Appeal by defendant to Supreme Court allowed.

Judgment affirmed.

Irving R. Shull, with him Alfred I. Ginsburg and Bernard L. Lemisch, for appellant.

Norman R. Bradley, for appellee.

Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.

OPINION

MR. JUSTICE COHEN

We have allowed this appeal from a judgment of the Superior Court in order that we might determine whether, in an action for the support of a minor child, born during wedlock, a husband may obtain compulsory blood grouping tests in order to exclude himself from being the father of the child.

The present proceedings were instituted by the relatrix in 1954 in order to increase the amount of a support order entered in favor of herself and a daughter, and to include therein a son born before her divorce. ^[1] At the hearing before the Domestic Relations Division of the Municipal Court of Philadelphia, the former husband moved for compulsory blood grouping tests of his wife, the son, and himself under the Act of 1951, providing, inter alia: "In any proceeding to establish paternity, the court, on motion of the defendant, shall order the mother, her child and the defendant to submit to one or more blood grouping tests ... to determine whether or not the defendant can be excluded as being the father of the child. ..." Act of May 24, 1951, P.L. 402, § 1, 28 P.S. § 306 (Supp).

The Municipal Court denied the motion, entered an order for the support of the son, and increased the weekly payments. On appeal the Superior Court affirmed, with three judges dissenting. ^[2]

We are not here called upon to decide the general question of the admissibility of, or the probative weight to be accorded to, blood grouping tests offered in evidence. Nor are we required to determine the specific issue of whether a trial court might in the exercise of its discretion refuse to proceed in an action for support until the relatrix consents to undergo such an examination.

The sole question before us is whether in an action for support a husband may obtain, as a statutory right, compulsory blood grouping tests of the mother and her child born during wedlock.

At the outset we note that the legislature placed two qualifications upon the right to compulsory blood grouping tests which substantially limit the scope and application of the act: 1. Only a male defendant who is the putative father may move to have the blood grouping tests taken. 2. Such tests are permitted only in "proceedings to establish paternity."

These qualifications render the statutory procedure unavailable, among others, to the following parties who might seek blood grouping tests to negate paternity: husbands bringing an action for divorce on the ground of adultery, ^[3] or an action for annulment because of fraudulent representations as to parenthood; ^[4] mothers seeking custody of children; ^[5] parties seeking a determination that they are the parents of a child of whom another claims to be the father; ^[6] Parties disputing the claim of a child to share in an estate; ^[7] parties attempting to prove non-citizenship of a child; ^[8] or to defendants in prosecutions for rape in which the prosecuting witness testified that as a consequence of the rape she became pregnant and gave birth to a child. ^[9]

On the other hand, the act does apply to at least two classes of cases - prosecutions for fornication and bastardy, Act of June 24, 1939, P.L. 872, § 506, as amended, 18 P.S. § 4506 (Supp.), and actions for neglect to support a bastard, Act of June 24, 1939, P.L. 872, § 732, 18 P.S. § 4732. Thus, apparently the act was designed to aid the man who is accused by an unwed mother of being the father of her illegitimate child. Except for protestations of innocence, a blameless defendant is often helpless to refute such a charge lodged against him, and consequently is convicted of the crime. In addition to being compelled to support a child which he has not fathered, the defendant also receives the condemnation of the community. The legislature apparently believed that the occasions of injustice in these two classes of cases were so numerous as to overcome any reluctance to compel a complaining witness to submit her body to blood tests at the option of a defendant, and therefore provided this procedure whereby a defendant might successfully assert his innocence.

The husband herein, however, contends that this action for support of a child born during wedlock is also a "proceeding to establish paternity" within the meaning of the act's second qualification. ^[10]

We cannot agree. It is true that the present proceeding is one in which paternity is relevant or one in which paternity has been controverted, or one in which paternity is an issue, but it is not a proceeding brought to establish paternity. In actions brought by a wife against a husband for support of a minor child born during wedlock, paternity has already been established in the eyes of the law by operation of the presumption of the legitimacy of children born during wedlock. Cairgle v. American Radiator & Std. San. Corp., 366 Pa. 249, 255-56, 77 A.2d 439 (1951). The presumption of legitimacy is invoked at the very moment of birth and no further proceedings are required to establish the paternity of the child. ^[11] This presumption is essential in any society in which the family is the fundamental unit.

The result urged upon us by the appellant has been reached in other jurisdictions through the interpretation of statutes containing a broader provision for blood group testing than that set forth in our own act. ^[12]

Several legislatures have seen fit to make blood tests available in any civil or criminal action in which paternity is a relevant fact. This is the provision of the Uniform Act on blood tests to determine paternity. ^[13] New Jersey permits blood tests: "Whenever it is relevant to the case of the prosecution of the defense in a proceeding involving parentage of a child," and "Whenever it shall be relevant in a civil action to determine the parentage or identity of any child. ..." ^[14] And the language of the statute adopted by New York reads: "Wherever it shall be relevant to the prosecution or defense of an action, or wherever it shall be relevant in any proceeding pending in a court of record jurisdiction. ..." ^[15] Even the Pennsylvania legislature employed terms of wider application when it made birth certificates prima facie evidence of their contents in proceedings in which "paternity is controverted." ^[16] The fact that our own legislature declined to choose any one of these provisions of more liberal scope when it enacted the present compulsory blood test statute indicates that it did not intend to extend the application of the act beyond the two proceedings - prosecutions for fornication and bastardy and actions for neglect to support a bastard - the abuses of which were the motivating forces behind passage of the legislation. ^[17]

The Court held: "As the present indictment is not a 'proceeding to determine the question of paternity,' § 12A does not in our opinion authorize the court to order the mother and children therein named to submit to a blood grouping test. The language of § 12A is the same (sic) as that employed in Title 28 Purdon's Pennsylvania Statutes, § 306, inserted by a statute enacted in 1951. The matter of blood grouping tests on order of the court appears to have been first presented to the Massachusetts Legislature in the form of a proposed bill (1954 House Doc. No. 666) which, following the language of Ohio Rev. Code, § 2317.47, provided that the court order submission to a blood grouping test "Whenever it shall be relevant in a civil or criminal action or proceeding to determine the paternity or identity of any person ....' It is significant, and persuasive of the correctness of our construction of the statute, that in the final draft of the proposed bill (1954 House Doc. No. 2495) and in the statute as enacted the language of the Pennsylvania statute was adopted in preference to that of the Ohio code. This Pennsylvania statute has been construed in that Commonwealth to be inapplicable in a proceeding similar to that in the present case. Commonwealth v. Heydt, 3 Pa. Dist. & Co. R.2d, Pa., 129, 130."

We hold, therefore, that the present proceeding is not a "proceeding to establish paternity" within the intendment of the Act of May 24, 1951, and that the defendant herein was not entitled to have compulsory blood grouping tests taken of his former wife and their child.

DISSENT BY: CHIDSEY

DISSENTING OPINION BY MR. JUSTICE CHIDSEY:

The majority opinion makes it quite clear that it is not concerned with the question of "the admissibility of, or the probative weight to be accorded to, blood grouping tests offered in evidence." Indeed, the question of admissibility is not an open one in Pennsylvania. The introduction and probative value of blood grouping tests in various...