Wawrykow v. Simonich

• Decision Date: 29 December 1994
• Citation: 652 A.2d 843,438 Pa.Super. 340
• Parties: Danielle WAWRYKOW, Parent and Guardian of David John Simonich, III, Appellant, v. David John SIMONICH, Sr., Administrator of the Estate of David John Simonich, Jr., Deceased, and Nancy Simonich, Appellees.
• Court: Pennsylvania Superior Court

Page 843

652 A.2d 843

438 Pa.Super. 340

Danielle WAWRYKOW, Parent and Guardian of David John

Simonich, III, Appellant, v. David John SIMONICH, Sr., Administrator of the Estate of

David John Simonich, Jr., Deceased, and Nancy

Simonich, Appellees.

Superior Court of Pennsylvania.

Argued Oct. 4, 1994.

Filed Dec. 29, 1994.

Robert A. Lebovitz, Pittsburgh, for appellant.

James J. Ross, Ambridge, for appellees.

Before CAVANAUGH, POPOVICH and HESTER, JJ.

POPOVICH, Judge:

This case involves an appeal from the March 16, 1994, order of the Court of Common Pleas of Beaver County, Orphans' Court Division, denying a motion for exhumation and deoxyribonucleic acid (DNA) testing of the body of David John Simonich, Jr. (hereinafter "Simonich, Jr."), by the appellant, Danielle Wawrykow, parent and guardian of David John Simonich, III (hereinafter "Simonich, III"). We reverse.

The facts of record disclose that Simonich, Jr. died in a vehicular accident on February 7, 1991, following which suit was instituted against the Pennsylvania Department of Transportation and a local tavern by Simonich, Sr., administrator of the decedent's estate, to recover for the death of his son.

On November 19, 1992, the appellant filed a claim against the decedent's estate on behalf of Simonich, III, for its refusal to acknowledge the appellant's child as that of the decedent. In support thereof, the appellant prepared a legal memorandum asserting that she was the mother of the minor-child (born July 15, 1991) and that the child was conceived at a time when the decedent was the only person with whom she had sexual relations.

After delivery, the appellant listed the decedent on the certificate of birth as the father. Also, in the memorandum, the appellant averred that the 2 1/2-year-old child's appearance resembled closely that of the decedent. As a result, in furtherance of establishing paternity, the appellant sought DNA blood grouping samples from the decedent or his parents, she "be[ing] advised by Roche Biomedical Laboratories, Inc. that the blood groupings of the parties [ ¹] [we]re not inconsistent with paternity and that genetic testing based on blood samples obtained from the paternal grandparents, since the decedent [wa]s buried would be sufficient to verify [the] paternity of the deceased. In the alternative, [urged the appellant,] the DNA testing c[ould] be taken from the deceased in an unobtrusive manner to establish paternity." See Record No. 4 at 3.

In reply, the appellee contended that neither by statute nor case law could the decedent's parents be required to submit to blood testing. The court agreed and denied such a request by order dated December 17, 1993. An identical result followed with the court's order of March 16, 1994, denying the appellant's request to exhume the decedent's body for DNA testing to establish paternity. The present appeal was perfected from the latter (March 16th) order and raises nine (9) issues which, when distilled, question the propriety of the court's order denying exhumation and blood testing of the decedent for purposes of proving parentage.

All parties, including the court, agree that the question posed is one of first impression in this jurisdiction. Nonetheless, we find guidance from this Court's recent pronouncement in In re Estate of Greenwood, 402 Pa.Super. 536, 587 A.2d 749 (1991), appeal denied, 529 Pa. 634, 600 A.2d 953 (1991), concerning the rights of children born out of wedlock to establish paternity for inheritance purposes from one who has died prior to the posthumous-proving proceeding is instituted. As is herein germane, we wrote:

... the "right to inherit" in the case of intestacy is reserved exclusively to Chapter 21 of the Probate, Estates and Fiduciaries Code, as amended 1978.... Within the ambit of the Act of 1978, ... a person born out of wedlock is not foreclosed from proving parentage, by clear and convincing evidence, after the person claimed to be the father dies.

* * * * * *

It is beyond peradventure that proof problems have always been in the forefront of counseling against condoning an illegitimate's claim of paternal inheritance. This is an area with which the States have an interest of considerable magnitude. Trimble, [v. Gordon ] supra, 430 U.S. at 771, 97 S.Ct. [1459] at 1465 [52 L.Ed.2d 31 (1977) ]; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170, 92 S.Ct. 1400, 1404, 31 L.Ed.2d 768 (1972); Labine v. Vincent, 401 U.S. 532, 538, 91 S.Ct. 1017, 1020, 28 L.Ed.2d 288 (1971).

The interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate's Court has observed: "[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove." In re Ortiz, 60 Misc.2d 756, 761, 303 N.Y.S.2d 806, 812 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. "The putative father often goes his way unconscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy." Ibid. (emphasis in original); accord, In re Flemm, 85 Misc.2d 855, 861, 381 N.Y.S.2d 573, 576-577 (Surr.Ct.1975); In re Hendrix, 68 Misc.2d at 443, 326 N.Y.S.2d at 650 [ (Surr.Ct.1971) ]; cf. Trimble, supra, 430 U.S., at 770, 772, 97 S.Ct., at 1465, 1466.

Lalli v. Lalli, 439 U.S. 259, 268-69, 99 S.Ct. 518, 525, 58 L.Ed.2d 503 (1978). However, albeit "the lurking problems with respect to proof of paternity ... are not to be lightly brushed aside ...," Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), " 'neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.' " Trimble, supra, 430 U.S. at 771, 97 S.Ct. at 1466.

We find that Trimble and its progeny were preoccupied with a "proof problem" that has been ameliorated by the advancements made in the medical field with regard to blood testing. See Alexander v. Alexander, 42 Ohio Misc.2d 30, 537 N.E.2d 1310 (Probate Court of Franklin Cty. Ohio, 1988). As our learned colleague Judge Tamilia observed in Nichols v. Horn, 363 Pa.Super. 301, 525 A.2d 1242 (1987), on this exact topic of a state limiting intestate inheritance to a child born out of wedlock:

Formerly, an important consideration that mitigated against an extended window of legal susciptibility [sic ], was the difficulty of proof as time passed. This has been consierably [sic ] reduced with the advent of sophisticated blood and tissue matching procedures such as the Homologous Lucocyte [sic ] Antigen test. In the foreseeable future, it is likely that techniques will be capable of establishing, with certainty, the identity of the father instead of indicating the probability of paternity or exclusion of a man as the child's father. Thus the matter of proof is less a consideration than the need to have finality as to liability and reasonable expectation that a life and lives will not be badly disrupted after a certain time.

363 Pa.Super. at 308, 525 A.2d at 1245. Additionally, our Supreme Court has acknowledged that Human Leucocyte Antigen [HLA] blood grouping tests establish, in the opinion of experts interpreting the results, as high as a 99.99 percent probability that the blood of the person tested was the biological father of the illegitimate offspring. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). And, as such, the HLA test, although not conclusive, may be introduced as "some evidence of paternity." Id. at 426, 515 A.2d at 529. Accord Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983).

* * * * * *

Initially, we observe that 42 Pa.C.S.A. § 6133 authorizes a court to order a "mother, child and alleged father to submit to blood tests" where, in "any matter subject to th[e] subchapter [known as Uniform Act on Blood Tests to Determine Paternity] in which paternity, parentage or the identity of a child is a relevant fact," the court can act sua sponte or at the initiation of a claimant to resolve the question left open. Relevancy is extant.

Secondly, public policy is in favor of eliminating the stigma of illegitimacy, and one of the means by which to do so is by HLA testing ordered by the court and the admission of the results as "some evidence of paternity." See Turek, supra; see also Ptaszkiewicz Estate, 5 Pa.Fid.Rptr.2d 208, 210 (O.C.Allegheny Cty., 1984).

* * * * * *

Our reading of the statutes and case law indicates that where a decedent's blood sample is available for testing, which might conclusively eliminate him as the father or be used as some evidence of paternity, it is a "relevant" factor which should not be withheld from the testing mechanisms of today's medical procedures to facilitate a resolution on an issue of paternity since "th[e] form[ ] of proof ... do[es] not compromise the State['s] interests." Trimble, supra, 430 U.S. at 772 n. 14, 97 S.Ct. at 1466 n. 14.

From our scrutiny of the statute in question, there is no indication in the Probate, Estates and Fiduciaries Code ... that the Legislature intended to establish a barrier to an illegitimate's right to prove paternity beyond the purported father's lifetime so as to inherit by, from and through the decedent.

402 Pa.Super. at 543, 547-551 & n. 3, 587 A.2d at 752, 755-756 & n. 3 (Emphasis added in part; footnote omitted).

Consistent with the precepts enunciated in Greenwood, supra 402 Pa.Super. 536, 587 A.2d 749, we need to ascertain whether the decedent's blood/tissue sample is available for testing. It must be remembered that in Greenwood the coroner had retained blood and tissue samples of the decedent due to a...