John M. v. Paula T.

• Decision Date: 19 March 1990
• Citation: 571 A.2d 1380,524 Pa. 306
• Parties: , 87 A.L.R.4th 555, 58 USLW 2619 JOHN M., Appellee, v. PAULA T. and Michael T., Appellants.
• Court: Pennsylvania Supreme Court

Page 1380

571 A.2d 1380

524 Pa. 306, 87 A.L.R.4th 555, 58 USLW 2619

JOHN M., Appellee, v. PAULA T. and Michael T., Appellants.

Supreme Court of Pennsylvania.

Argued Dec. 12, 1989.

Decided March 19, 1990.

Scott D. Galloway, Media, for Michael T.

Chester P. Confer, Media, for Paula T.

Steven B. Moss, Media, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT ^*

LARSEN, Justice.

This appeal stems from a Petition for Custody and/or Visitation filed by John M., the appellee, wherein he sought to establish that he is the biological father of a girl-child born to Paula T. while she was married to Michael T., and wherein appellee sought to compel Michael T. to submit to Human Leukocyte Antigen (HLA) blood tests against his will. The issue presented is whether the trial court erred in refusing to order the husband to submit to such tests upon appellee's Motion for Physical Examination pursuant to Pa.R.Civ.P. 4010(a).

Appellee John M. (the "putative father") and appellant Paula T. (the mother) became lovers at a time when the latter was engaged to marry appellant Michael T. (the "presumptive father"). Her relationship with appellee temporarily ceased in August, 1978, and Paula was married to Michael in September, 1978. Paula and Michael have lived together and have remained married since then.

In March, 1979, however, John and Paula resumed their relationship. This relationship continued, on and off, until September, 1983 when it was finally terminated by Paula.

Throughout their marriage, Paula and Michael have lived together and have engaged in sexual intercourse on a regular and frequent basis. On June 6, 1980, Paula gave birth to the couple's first child (whose paternity is not at issue). In January-February, 1981, John and Paula engaged in sexual intercourse on several occasions without birth control precautions. During that same period, Paula and her husband, Michael, were also engaging in sexual intercourse regularly, about three to four times a week.

On November 3, 1981, Paula gave birth to her second child, the child whose paternity is at issue (hereinafter referred to as "the Child"). Her husband Michael was in the delivery room and assisted in the Child's delivery. Subsequently, Paula gave birth to two additional children to Michael (a girl and a boy), and these six (Paula, Michael, and their four children) have lived together continuously and have always presented themselves to the community as a family.

There was conflicting testimony at the trial regarding John's attempts to establish and develop a relationship with the Child. Essentially, John claimed to have visited mother and the Child at the hospital upon the Child's birth, and to have kept up a relationship with the Child and her mother. John also testified that Paula had acknowledged to him that he was the Child's father, and that he had offered to support the Child, which offer was refused because Paula would have been unable to explain the source of the support money to her husband. John established a trust fund for the Child; however, at oral argument it was conceded that the trust was revocable at the will of the donor-John.

Paula admitted that she and John had sexual relations until December, 1981 (specifically including January-February of that year), that she remained friends with John until September, 1983, during which time John occasionally visited her and her daughters, but she did not recall ever having indicated to John that he was the Child's father.

Sometime in 1984, Paula refused to allow appellee to visit her and the Child. At appellee's insistence, Paula agreed to submit to a blood test, and HLA blood testing was done on mother, the Child and appellee in December 1984. The results of the HLA blood tests, according to Dr. Sherwood, appellee's expert witness, a hematologist, were that "the probability of paternity ... in this case was 97.47 percent. That is to say [appellee] is 97 percent more likely to be the true father of the Child than as a random man of the same race." Notes of testimony (N.T.) March 4, 1986, at 114. Dr. Sherwood also expressed his findings as showing that appellee was "38 times more likely to provide that assortment of obligatory genes as is any random man." Id. Dr. Sherwood admitted, however, that science can only give an assessment of probability that a particular person is the biological father and that "we cannot say with definitiveness that he is in truth the true father." Id. Dr. Sherwood further testified that "in our experience this [97.47 percent probability] is perhaps in the mid range of results that one gets in this type of testing." Id. at 115. Michael declined to submit to a blood grouping test to determine the scientific probability of his being the Child's biological father.

Appellee filed a petition and amended petition against appellants seeking partial custody and/or visitation of the Child wherein appellee alleged that he was her father. On December 17, 1985, appellee filed a Motion for Physical Examination pursuant to Pa.R.Civ.P. 4010(a) wherein he sought a court order to compel Michael T. to submit to blood testing, including HLA blood grouping tests. Said motion was denied pretrial by the Honorable Melvin G. Levy of the Court of Common Pleas of Delaware County, and was again denied at trial on March 4, 1986 by the Honorable Robert A. Wright. N.T. id. at 10-12.

A hearing was conducted before Judge Wright at which the foregoing facts and testimony were placed upon the record. A final order was issued by Judge Wright on July 29, 1987, which affirmed an earlier order that appellee had not overcome the "presumption of legitimacy" (i.e., the presumption that a child born to a married woman is the child of the marriage--see note 2, infra ), and that it would be unnecessary therefore to hold any additional hearings regarding visitation. Post-trial motions were filed and denied. In its opinion in support of denial of post-trial motions, the lower court reaffirmed its refusal to compel the appellant-husband to submit to blood tests, and its determination that appellee had not overcome the "presumption of legitimacy."

John M. appealed to Superior Court which, on August 18, 1988, 377 Pa.Super. 72, 546 A.2d 1162, reversed the lower court, holding that the lower court abused its discretion in refusing to compel Michael T. to submit to blood tests.

This Court granted Paula and Michael T.'s petition for allowance of appeal on February 27, 1989, and we now reverse the Superior Court.

Appellee predicated his motion to compel appellant-husband to submit to a blood test on Rule 4010(a) of the Pennsylvania Rules of Civil Procedure. ¹

Rule 4010(a) provides as follows:

PHYSICAL AND MENTAL EXAMINATION OF PERSONS

(a) When the mental or physical condition (including blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

Plainly, Rule 4010(a) authorizes a court to grant a motion for physical examination of a party only "for good cause shown," and places the "good cause" determination at the discretion of the court ("may order the party to submit"). In its opinion denying post-trial motions in this case, the lower court stated:

The Court did not abuse its discretion in refusing to order Husband to take a blood test. The explanatory note to Rule 4010 states "Good cause ... [is] intended to protect parties against undue invasion of their rights to privacy." Where a husband is living with his wife, has never separated from her, is the undisputed father of her first child, was having intercourse with his wife three to four times a week when her second child was conceived, was at the hospital and took part in the delivery of the second child, considers himself to be the natural father of both children and husband, wife and children are living together in the community as a family unit, it certainly is an undue invasion of the husband's right to privacy to order him to take a blood test in proceedings commenced by a person who is alleging that person is the father of the wife's second child.

Slip op. at 13-14.

The lower court's refusal to compel appellant-husband to submit to blood tests was based upon the "presumption of legitimacy," ² one of the strongest presumptions known to the law. Cairgle v. American Radiator Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951); Minnich v. Rivera, 509 Pa. 588, 506 A.2d 879 (1986); Commonwealth ex rel. O'Brien v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1957). This presumption (which we will henceforth refer to as the presumption that a child born to a married woman was the child of that marriage) could traditionally be overcome only by proof that the husband did not have access to his wife during the period of possible conception, or by proof of the husband's impotency or sterility. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 2342-43, 105 L.Ed.2d 91 (1989); Commonwealth ex rel. O'Brien v. O'Brien, supra; Cairgle, supra; Burston v. Dodson, 257 Pa.Super. 1, 390 A.2d 216 (1978). The trial court correctly held that appellee, the alleged or putative father in this case, had introduced no evidence that would come close to overcoming the presumption that the Child was a child of the marriage under the traditional standards.

Superior Court acknowledged that the presumption that a child born to a married woman is a child of the marriage is an extremely strong one, and...