Estate of Pew

• Citation: 409 Pa.Super. 417,598 A.2d 65
• Parties: ESTATE OF Mary C. PEW, Deceased. Appeal of Grace Fleming PAYNE, Appellant.
• Decision Date: 01 October 1991
• Court: Superior Court of Pennsylvania

Page 65

598 A.2d 65

409 Pa.Super. 417

ESTATE OF Mary C. PEW, Deceased Appeal of Grace Fleming PAYNE, Appellant.

Superior Court of Pennsylvania.

Argued May 15, 1991.

Decided Oct. 1, 1991.

Avivah R.Z. Pinski, Philadelphia, for appellant.

Nina M. Gussack, Philadelphia, for Pew, participating party.

Before McEWEN, KELLY and FORD ELLIOTT, JJ.

KELLY, Judge:

In this appeal we are called upon to determine whether the trial court properly permitted the trustees of the Trust Under Deed of Mary C. Pew, Sur Trust for Walter C. Pew to rely upon the blood type information contained in a certified copy of the decedent's, Walter C. Pew's, hospital records for a blood transfusion he received in 1987 and the blood type information supplied by the appellant, Grace Fleming Payne, during discovery when making a non-paternity determination, where it has not been alleged that there are any existing samples of the decedent's blood available for blood type testing. We affirm.

The relevant facts and procedural history are as follows. The appellant was born out of wedlock in Cumberland, Maryland on November 12, 1926. The appellant's birth certificate states that her mother's name was Viola Humbertson and her father's name was Chuck Pew. The appellant attempted for forty-three years to locate her biological father. Her search led her to the decedent, Walter C. Pew, of Bryn Mawr, Pennsylvania. When the appellant attempted to contact Mr. Pew with her belief that he was her biological father, she was informed that Mr. Pew had died several months earlier on March 14, 1989. The appellant demanded a share of the principal of the trust which became distributable upon Walter C. Pew's death to the decedent's children. The trustees and the appellant's counsel agreed to an exchange of basic blood type information in order to expedite a determination of whether the appellant was the daughter of Walter C. Pew.

The appellant supplied a letter from her physician stating that her blood type was AB and a hospital laboratory report stating that the appellant's mother, Viola Humbertson Raney, had blood type B. The trustees submitted that Water C. Pew had blood type O, on the basis of his United States Army dog tag from the Second World War and certified 1987 blood transfusion records from Bryn Mawr Hospital. The trustees then informed the appellant that it was their position that she was not the daughter of Walter C. Pew. The trustees also retained a genetics expert, Dr. Laird G. Jackson, who issued a report which stated that on the basis of the different blood types he was 99.9% certain that the appellant was not the daughter of Walter C. Pew. A copy of this report was sent to the appellant. The appellant was then informed by the attorney for Mr. Pew's estate that there would be an audit of the "Trust under Deed of Mary C. Pew, Sur Trust for the benefit of Water C. Pew on May 7, 1990."

On May 3, 1990, the appellant, proceeding pro se, filed a claim on the audit of the trust in the Orphans' Court of Montgomery County. On July 11, 1990, the trial court issued a decree to allow the trustees to proceed with discovery. The appellant promptly responded to the trustees' interrogatories and request for the production of documents. On August 1, 1990, the trial court issued a decree permitting the appellant to conduct discovery. On August 6, 1990, the trustees filed a motion for summary judgment or in the alternative a petition for determination of non-paternity pursuant to Pennsylvania's Uniform Act on Blood Test to Determine Paternity, 42 Pa.C.S.A. § 6131 et seq. On August 8, 1990, the trial court issued an order which suspended all discovery and scheduled a hearing on the trustees' motion for August 20, 1990.

At the hearing, the trustees presented the testimony of Dr. Laird Jackson, a geneticist, who was qualified by the trial court as an expert. Dr. Jackson testified that on basis of the appellant's blood type (AB), her mother's blood type (B) and Walter C. Pew's blood type (O), that it was impossible for Walter C. Pew to have been the appellant's father. The appellant did not present an expert of her own to refute Dr. Jackson's testimony. Rather, she rested upon her cross-examination of the trustees' expert. On August 27, 1990, the trial court entered a final decree which determined that Walter C. Pew was not the appellant's father, granted summary judgment in favor of the trustees and dismissed the appellant's claim with prejudice. This timely appeal followed.

On appeal, appellant raises four issues for our review.

I. DID THE HEARING COURT ERR WHEN IT DESIGNATED SOMEONE WHO WAS NOT AN EXPERT IN PATERNITY BLOOD TESTING AS AN EXPERT UNDER THE UNIFORM ACT FOR BLOOD TESTING TO DETERMINE PATERNITY?

II. DID THE HEARING COURT DENY LITIGANT HER RIGHT TO DUE PROCESS UNDER THE UNIFORM ACT WHEN THERE WAS NO IN- COURT OPPORTUNITY TO CROSS-EXAMINE ANY OF THE PERSONS WHO DID ANY OF THE BLOOD TYPING, OR WHO WERE RESPONSIBLE FOR ANY OF THE ALLEGED BLOOD TYPE RECORDS WHICH CONSTITUTED THE FACTUAL BASIS FOR THE SCIENTIFIC OPINION CREDITED BY THE COURT AS THE DETERMINATIVE FACTOR IN ITS FINDING OF NON-PATERNITY UNDER THE UNIFORM ACT?

III. DID THE HEARING COURT ERR WHEN IT BASED ITS FINDINGS OF NON-PATERNITY SOLELY ON THE OPINION OF A MEDICAL WITNESS WHO RENDERED AN OPINION WITHOUT THE TYPE OF RECORDS WHICH A BLOOD TESTING EXPERT RELIES UPON FOR A DETERMINATION OF EXCLUSION OF PARENTAGE?

IV. DID THE HEARING COURT ERR BY DISMISSING THE CASE, WHEN, CONSIDERING THE RECORD IN THE LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY, THERE WERE ISSUES OF MATERIAL FACT?

Appellant's Brief at 3.

At the outset, we note that in reviewing orders granting summary judgment, our scope of review is limited. This Court has previously summarized the appropriate standard as follows:

A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. Moreover, it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the controverted allegations of the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.

Larkin v. Metz, 398 Pa.Super. 235, 238-39, 580 A.2d 1150, 1152 (1990); Hartford Mutual Insurance Company v. Moorhead, 396 Pa.Super. 234, 237, 578 A.2d 492, 494 (1990) (citations omitted); Pa.R.C.P 1035(d). Cognizant of this standard, we turn our attention to the appellant's appeal.

The appellant contends that the trial court erred in designating Dr. Jackson as an expert under 42 Pa.C.S.A. § 6134. The appellant argues that while Dr. Jackson may be a qualified as a geneticist, he is not qualified as an expert in the examination of blood types as required by the act. Thus, the trial court erred in permitting Dr. Jackson to testify as an expert. We disagree.

The admission of expert testimony is a matter for the discretion of the trial court and will not be remanded, overruled, or disturbed unless there was a clear abuse of discretion. Mitchell v. Randall, 368 Pa.Super. 421, 426-27, 534 A.2d 508, 510 (1987). The purpose for the selection of experts under 42 Pa.C.S.A. § 6134 is the same as the rule for expert testimony; to allow qualified "opinion" testimony in order to explain to the trier a subject matter which is beyond the experience and comprehension of the ordinary laymen. Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985). Experts in one area of medicine may be found to be qualified to address other areas of specialization where the specialities overlap in practice or where the specialist has had experience in a selected field of medicine. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989), appeal denied, 527 Pa. 635, 592 A.2d 1302 (1991).

Instantly, when Dr. Jackson presented his impressive credentials to the trial court, he stated that he was familiar with the process by which blood typing was done and through his work was personally familiar with and experienced in the analysis of blood types to determine inheritable traits. As the information on the blood types of the appellant, her deceased mother and Walter C. Pew were supplied to him by either the appellant or the trustees, it was not necessary for Dr. Jackson to conduct blood tests to arrive at his conclusion. Moreover, it has not been alleged by the appellant that there are existing blood samples of either Walter C. Pew or the appellant's mother which would permit Dr. Jackson or any other expert to conduct blood typing tests. Accordingly, because Dr. Jackson was qualified as an expert in a closely related field dealing with heredity and inheritable traits, the trial court properly permitted his expert testimony to the question of whether the appellant was the daughter of Walter C. Pew.

The appellant's second contention is that she was denied her due process rights under 42 Pa.C.S.A. § 6131 et seq. because she did not have the opportunity to cross-examine the people who had completed the blood typing tests on herself, her mother and Walter C. Pew, upon which Dr. Jackson had relied. The appellant asserts that because of her inability to cross-examine the people who had made the respective blood type determinations, the trial court's ruling on non-paternity should be overruled, the grant of summary judgment in favor of the trustees should be vacated, and the case should be remanded to permit the appellant to fully cross-examine all these responsible for the blood typing determinations. We disagree.

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