Koleski v. Park

• Decision Date: 04 May 1987
• Citation: 525 A.2d 405,363 Pa.Super. 22
• Parties: Denis J. KOLESKI, Appellee, v. Katherine D. PARK, Appellant. 2368 Phila. 1986
• Court: Pennsylvania Superior Court

Page 405

525 A.2d 405

363 Pa.Super. 22

Denis J. KOLESKI, Appellee, v. Katherine D. PARK, Appellant.

2368 Phila. 1986

Superior Court of Pennsylvania.

Argued Feb. 10, 1987.

Filed May 4, 1987.

Martin J. King, New Hope, for appellant.

Charles J. Conturso, Morrisville, for appellee.

Before BECK, HESTER and ROBERTS, JJ.

BECK, Judge:

This case requires us to consider under what circumstances a court may order a party to submit to the extraction of a second blood sample for the purpose of performing additional paternity testing.

We find that constitutional rights implicated in the extraction of blood samples and resolution of questions of paternity require that the moving party show by a preponderance of the evidence that the results of the first tests were inaccurate before a second blood extraction can be ordered. This showing shall be made at a hearing before the trial court. We, therefore, reverse the trial court's order that appellant submit to the taking of a second blood sample and remand for proceedings consistent with this opinion.

On December 19, 1984, appellant Kathy Park gave birth to a daughter. Thereafter, appellee Denis Koleski instituted this action for partial custody, claiming to be the father of the child. Appellant filed an answer denying the alleged paternity and suggested blood testing to disprove appellee's paternity. On July 17, 1985, the parties entered into a stipulation to submit to the extraction of blood samples for red blood cell antigen and human leukocyte antigen (HLA) typing and grouping. The results of these tests excluded appellee Denis Koleski as the father of appellant's child.

Appellee filed a Motion for Appointment of Experts to Perform Independent Blood Tests on May 21, 1986. He claimed that the prior tests were inaccurate based on his interpretation of the lab report as indicating (1) that the blood was held seven weeks prior to the performance of the tests, and (2) that he did not possess paternal obligatory genes in the range of AW 24-BW 16, when in fact he did possess genes A-1, W24. Appellee offered no evidence, expert or otherwise, in support of his assertions.

The trial court ordered Kathy Park to submit to a second extraction of blood at Metpath Labs in Trenton, New Jersey, for tests to be performed by that lab. The order also stated that such tests would be admissible into evidence for or against any party to the action without expert testimony and without challenge to the chain of custody of the blood samples. Appellant filed a motion for a protective order, which was denied. This timely appeal followed.

Appellant raises the following issues on appeal: (1) whether the trial court violated her rights under the Fourth Amendment of the Constitution of the United States, and Article I, Section 8 of the Constitution of Pennsylvania, by ordering a second blood extraction without showing that the tests done on the first blood sample were inaccurate; (2) whether the trial court violated her rights under the Fourteenth Amendment of the Constitution of the United States in ordering a second blood extraction without affording her a hearing or some other proceeding in which to present her objections; (3) whether the trial court erred in ordering the second blood extraction and tests thereupon to take place at an out-of-state testing agency, to be admissible without expert testimony or challenge to the chain of custody; and (4) whether the trial judge should be required to recuse on remand of the matter to it.

We agree with appellant that the trial court erred in failing to hold a hearing on the alleged inaccuracy of the first test results and in ordering the second tests to be done at an out-of-state lab. We, therefore, reverse the order of the trial court and remand for proceedings consistent with this opinion. We do not find, however, that appellant has shown cause for us to direct assignment of this matter to a different judge on remand.

Our starting point in resolving these issues is the stipulation entered into by the parties. Whatever the parties' rights to blood testing may be under statute or case law, they are free to waive them by stipulation, so long as the stipulation does not affect the court's jurisdiction or due order of business. Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985).

Stipulations are interpreted according to the intent of the parties. Longenecker v. Matway, 315 Pa.Super. 411, 416, 462 A.2d 261, 263 (1983). We conclude upon examination of the stipulation that the parties did not intend to bind themselves, one way or the other, as to a second blood extraction. The agreement very specifically sets forth a date, place, and time for the extraction of blood, and calls for appellee to produce one check in payment of the testing. It provides that the results of the tests shall be admissible into evidence, without expert testimony or challenge to the chain of custody of the samples, but does not indicate that these results will be conclusive. It neither requires nor forbids a second blood extraction.

We next turn to the Uniform Act on Blood Tests to Determine Paternity ("Act") ¹ to determine what rights to further blood testing it might provide for appellee. ² Section 6133 of the Act provides:

In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.

We find the Act to be inconclusive on the question of further blood testing. The language of Section 6133 is ambiguous as to the number of blood extractions and blood tests that may be ordered from each party.

In any event, regardless of the literal meaning of the section, we are bound to give it a construction that will preserve its constitutional validity, a result we must assume the legislature intended. Com. Dept. of Transportation v. Emory, 91 Pa.Commw. 580, 498 A.2d 26 (1985). To preserve Section 6133 from conflict with the Fourth Amendment, we construe it as requiring a showing that the first blood test results were inaccurate before a second blood extraction can be ordered. ³

The Fourth Amendment to the Constitution of the United States expressly provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..." (Emphasis added). ⁴ Compulsory administration of a blood test falls within the scope of the Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). The Fourth Amendment's "proper function is to constrain, not against all intrusions [into the body for blood] as such, but against intrusions which are not justified in the circumstances." Id., at 768, 86 S.Ct. at 1834.

We determine what is justified under the circumstances by examining the values served by making a second blood test broadly or narrowly available. An outright prohibition against a second blood extraction here would promote the appellant mother's right to her bodily integrity. However, it could also destroy the appellee putative father's ability to prove his claim that he is indeed the father of the child. The United States Supreme Court in Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), found "plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody and management of his or her children' " is an important and legally protectible interest. Id. at 27, 101 S.Ct. at 2159, quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972).

Appellant's child also has a "compelling interest in the accuracy of such a determination [of paternity]." Little v. Streater, 452 U.S. 1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627 (1981). First and foremost is her interest in the care and companionship of her father. Additionally, an adjudication of paternity would give her rights to her father's estate, ⁵ workmen's compensation benefits, ⁶ and financial support. ⁷

We are not, however, blind to the possibility of harrassment where one party could impose multiple blood testing upon the other. We recognize that paternity actions create emotionally-charged circumstances. We therefore limit the right to subsequent blood extraction to those situations in which the proponent of further testing shows by a preponderance of the evidence that the initial test was defective and a subsequent test is needed for an accurate determination of paternity.

As the accuracy of different tests and combinations of tests varies, ⁸ so too will the difficulty of making the required showing. If the tests performed on the first blood sample are of minimal accuracy, a motion for further blood extraction and testing should be readily granted. ⁹ Where the tests conducted on the first sample are scientifically believed to yield a highly accurate result, ¹⁰ however, the moving party will have to demonstrate that the tests were conducted or interpreted improperly before further blood extraction will be ordered.

We turn now to the question of by what procedure the determination that the first blood tests were inaccurate shall be made: whether a hearing is required, or whether some other procedure, such as affidavits, will suffice. Appellant argues that the due process of law guaranteed her by the Fourteenth Amendment to the Constitution of the United States requires that the trial court afford her a hearing to...