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HomeMy WebLinkAbout99-00131 (2) .-5 - 3 .Ii: 7i ~ o l / ~ ~, j: . ; , - en - I 0- cr . ' ~' .~. '-... JAN 11 199t' ~ v. I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO, 99 - /3/ c;;.J JEFFREY A. MOORE, Plaintiff : LAUREEN ULRICH, Defendant CML ACTION - LAW CUSTODY AND NOW, this \ L-\ day of d(\\'-.',,,~ ,1999, upon consideration of the attached Complaint, it is hereby directed that th partIes and their respectIve counsel appear before \-\,)0- r-\- '!.., ('" \ r,,'-.! ' \=Csn, ' the Conciliator, at-\\-'",,~ ~\, ~nn-5 ~m n rY'Ih-rl-hr\ r" Pro rfun)~ _ on the \ \ day of \-\nc- r 'r-. , 1999, at (1', ~(:) (t.m. for a Pre-Hearing Custody Conference. At such Conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the Court, and to enter into a Temporary Order. All children age five or older may at the request of either attorney or party, be present at the conference. Failure to appear at the Conference may provide grounds for the entry of a temporary or permanent Order. FOR THE COURT, By: _ Custody Conciliator The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 ... _ FlLED-Oj:FlG: 0= l't-~:: c;::rri"U"""~"I"""':"V , '__' , '. .; . ." ....11'...1. 99 In' I - "I to ,n-,,~ :J Hr : 09 eLI' ,.._-, -,_.i-... . ,: ,", -, . "'! .~. .. 1"",-, ..,,-~!,;_r~..'.) IJI.}UI\' I I PCi~>~SYLV\\~:,\ /.6-L9P' dd ~./td~ z;a.-?f ~ //5,0' 7~L ~~ :h cb)!-. ;-/sflj' dyy~-?tA- ?f/-~?~' . ,. PETER J. RUSSO, ESQUIRE PA Supreme Court 10: 72897 61 west Louther Street Carlisle, PA 17013 (717) 249-2721 Attorney for Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99 _ i3/ CIVIL ACTION - LAW CUSTODY JEFFREY A. MOORE, Plaintiff v. LAUREEN ULRICH, Defendant : COMPLAINT FOR CUSTODY AND NOW, comes the Plaintiff, JEFFREY A MOORE, by and through his attorney, Peter J. Russo, Esquire, and respectfully submits the following in support of Plaintiff's Complaint for Custody: 1. The Plaintiff is JEFFREY A. MOORE, residing at 11 Fairfield Street, Newville, Pennsylvania 17241. 2. The Defendant is LAUREEN ULRICH. residing at 25 Regency Woods North, Carlisle, Pennsylvania 17013. 3. Plaintiff seeks custody of the following child: Name Baby Moore Present Residence 25 Regency Woods North Carlisle, PA 17013 4. Baby Moore was born out of wedlock. DOB Unknown 5. The child is presently in the custody of Defendant, who resides at, 25 Regency Woods North, Carlisle, Pennsylvania 17013. 6. During the past five years, the child has resided with the following persons and at the following addresses: .. 7' Persons Address Duration Defendant 25 Regency Woods North Carlisle, PA 17013 7. The mother of the child is Defendant, currently residing at 25 Regency Woods North, Carlisle, Pennsylvania 17013. The mother is married. 8. The father of the child is Plaintiff, currently residing at 11 Fairfield Street, Newville, Pennsylvania 17241. The father is single. 9: The relationship of plaintiff to the child is that of father. The plaintiff currently resides with the following persons: Name Carisa Carey Relationship Fiancee 10. The relationship of defendant to the child is that of mother. The defendant currently resides with the fOllowing persons: Name Keith Ulrich Chad Ulrich Chelsa Ulrich Relationship Husband Son Daughter 11. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. 12. Plaintiff has no information of a custody proceeding concerning the child pending in a court of this Commonwealth. 13. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 14. The best interest and permanent welfare of the child will be served by placing legal and primary physical custody of the child with Plaintiff. .. WHEREFORE, Plaintiff requests this Honorable Court to order that primary physical and legal custody of the subject minor child be placed with Plaintiff. Respectfully submitted, ~Q~~- Peter J. Russo Attorney for Plaintiff Date: II ~/q9 , ., .- VERIFICATION I, Jeffrey A. Moore, verify that the statements made in the forgoing document are true and correct. 1 understand that false statements herein are made subject to the penalties of 18 Pa. C. s. 9 4904 relating to unsworn falsification to authorities. D.ted 1-1/11 / ~ -.... .~ --- ~~ '=" ~ ~j ~~, ~ '\> \ \ ,,\ \ ~ ~ ~ ~ \r) ~ '% ~ ~ o-=. ;s.' 0 ~ lJ_/!~l c:::: ~)- ~ ~ .Lj:S":; (:J I~ ::-~~ I C\ cC CJr-,: C!t'~. ?' /~~ Jj ,.-:::.- ~ "'I'-~"? ..... I -;; <5 5{ f:: ,- .-5 r5.~~ ~ ,Uj (15 :-.'/:l.. :5 (J .' ~..... . . ..". SHERIFF'S RETURN - REGULAR CASE NO: 1999-00131 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MOORE JEFFREY A VS. ULRICH LAUREEN DAWN KELL CUMBERLAND County, Pennsylvania, who to law, says, the within COURT ORDER , Sheriff or Deputy Sheriff of being duly sworn according IN CUSTODY was served upon ULRICH LAUREEN the defendant, at 19:43 HOURS, on the 14th day of April 1999 at 25 REGENCY WOODS NORTH CARLISLE, PA 17013 ,CUMBERLAND County, Pennsylvania, by handing to LAUREEEN ULRICH a true and attested copy of the COURT ORDER IN CUSTODY and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 4.34 .00 8.00 :?.;u .Yi So answe~~ ./e. :r-~~<:. ~<? K. l~omas Kilne, b erl f PETER RUSSO 04/15/1999 by ))a.tPY\ -a. 10..u..- lJepucy "her~ff Sworn and subscribed to before me this /::r~ "day of ~ 19 99 A:-:D. lA?L @o~ry~~- , " \ ~...;;::.,....., III ",-:- - - , , MAR 2 3 19991/7 JEFFERY A. MOORE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW LAUREEN ULRICH, Defendant NO. 99 - 131 CIVIL IN CUSTODY COURT ORDER AND NOW, this ~ Ir 7h day of March, 1999, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: 1. A hearing is scheduled in Courtroo~ No. Lj of the Cumberland County Courthouse on the .Q/..oCday of n l'A { j!.> , 1999, atq:C/J A.M. at which time testimony will be taken in the above' case. At this hearing, the Defendant, Laureen Ulrich, is directed to appear and, at a minimum, account to the Plaintiff all information regarding whether Defendant has given birth to a child who is a child of the Plaintiff. 2. Defendant may through her counsel contact the Custody Conciliator in this case and arrange for another Custody Conciliation Conference in advance of the mentioned hearing date. At this Conciliation, the parties can exchange the pertinent information relating to this child and also attempt to reach an agreement. 3. Counsel for the Plaintiff is directed to have a copy of this order served on the Defendant by personal service via the Cumberland County Sheriff's Office. BY THE COURT, cc: Peter J. Russo, Esq. C ' :=. _ ~(o~ ~,,~ Laureen Ulrich J. RLro-cmCE OF TFt: FROn,Oi-,OTARY 99 Hf\R 26 flli 1\: 23 CU;'./3~i-1tI~<D cot.:\'!1Y r:cN;\SYC\i'i\\':~:\ .' . "- ."" ! ,...... .... rJ-. ...... . JEFFERY A. MOORE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW LAUREEN ULRICH, Defendant NO. 99 - 13 I CIVIL IN CUSTODY Prior Judge: CON CILIA nON CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: 1. The pertinent information pertaining to the child who is the subject of this litigation is as follows: Baby Moore. 2. A Conciliation Conference was held on March II, 1999, with the following individuals in attendance: The Plaintiff, Jeffery A. Moore, with his counsel, Peter J. Russo, Esquire. The Defendant did not appear. 3. Plaintiff asserts that he is the father of a child that was born at an unknown date. Plaintiff does not know the child's name. Plaintiff suggested that the child was born a few months ago and that the Defendant Mother had made attempts to put the child up for adoption. Plaintiff desires to exercise visitation rights with respect to the minor child. 4. The Defendant did not appear at the conference. Plaintifrs cotlllsel provided the Conciliator with a certified mail return receipt evidencing that the Defendant had been served with notice of the Conciliation Conference. 5. Based upon the above, the Conciliator recommends the attached order. >(22/ q ? DATE Huoert X. Gilroy, Esquire Custody Conciliator [..1'236-98) IN THE SUPREME COURT 01' PENNSYLVANIA MIDDLE DISTRICT TIMOTHY STRAUSER. No. 44 M.D. Appeal Docket 1998 No. 45 M.D. Appeat Docket 1998 Appellanl v. Appeal from the Orde! of Superior Court entered 12/4/97 nt No. 1010HBG96, reversing oraer entered 11/25/96 in the Court of Cammon Pleas of Juniata County, Civil Divi~ion. at No. IT.2~1:J96 APRil A. STAHR. Appellee STEVEN STAHR. Intervenor ARGUED: November 17, t998 OPINION MR. ,",U3nCE SAYLOR DECIDED: MARCH 30, 1999.' The issue in this case is whether U10 preSurT;ltion of patcmity bars 1imothy Strouser ("Appellallt") from secking to establish, on the basis of bloOd tests favorabte to his c1tlim, that he is the father of Am~nda Sttl.hr, the younge~t of three children bom to April Stahr ("Mother") during her marrillgc to Steven Stahr ("Husband"). fv'lothcr and Husband remain married, and they OPPOSe Appellant's claim. The Superior Court concluded that in such circumstances the presumption does indeed bar Appellant from asserting such daim. We affilTll. On May 20, 1990. Aooejlant filed a cus.tody complamt against Mother. In the complaint. Appellilnt asserted that he is Amanda's father; t1"k.lt Mother had 3.Cknowledged 04/13/99 13:05 TX/RX NO.2562 P.002 . his patemity, ensured that he enjoyed frequent visits \\ith Amanda. and sometimes entrusted Amanda to his care; and that he. Mother, and A~nda had submitted to blood tests. the result::;, of which disclosed d 99.99% probability that he was Amanda's to.ther. Appellant also aUeged thai since reCeMI1Q the blood f~st rP.5ults. MotJ,er had interfGred with his relationship With Amanda. In view of tho bond that existed between him and Amanda. Appellant asserted, it would be in the child's best interest5 jf he were granted parlinl CustOdY or ner. Moth€!1' filed preliminary objections in which she sought the disrni~1 of Appellant's complaint on the basis of the presumption that Amanda was a child at the Stahrs' marnnoe (also known as tho presumption of legitimacy, or of Husband's paternity). Husband filed a petition to intervene, which was granted. He Ule" filed preliminary objections seeking. as had Mother, to have Appellant's complaint dismissed based on the presumption of paternity_ Hl:J afso asserted that Appr::lIant was eqlJitably estopped from asserting paternity. as he had not financially or emotionally supported the child. On November 25, 1996, following a hearing on preliminary ObjectionS, the mal CQUrl entered 3.n Order slating '1hat the blood test results are hereby admitted a.nd this mattp.r shall be schedlJled for a hearing on the issue of vvhat is best tor the SUbject Chlld." In an accompanyinQ memorandum, the tnal court redted its factual findings. ns follows: 1) Mother and Appellant had engaged in sex on at least ono occasion around the- time of AmAnd~'s conception; 2) Mother and Husband \'Vero also having Sex during that period of time ana were using the wtthdrawaJ method of birth control; 3) Mother and Husband were marned at the time of Amanda's conception and birth, remained married. dnu tlud nover separated; 4) Mother had held Amanda out to others in tho community as Appellant's child and had promoted a relationship between Appellant and Amanda; and 5) Husband had exhibited an attitude of Indifferenca tow..rd Mother and the children, which attitude promoted Mother's relationship \-\lith Appellant. [J-236-981 . 2 04/13/99 13:05 TX/RX NO.2562 P.003 . In its opinion ann ordel' of Novembor 25. 1996, the tri<:1l court acknowledged that It it were to rely on the case law submitted by Mother nnd Husband, the cnsc would be dismissed, as Appellant had fu.iled to overcome the presumption of paternity by showing non-Access or impotenc,,' on the part of Husband. NeverthC'l~ss, the trial court concluded that Mother. having held Amanda out to be Appellant's child and having voluntarily submitted to blood testino tor the ouroose or determining pntemity. was equit.ably estopped from contesting Amanda's paternity, TIle court then decidea to admit the blood test results over Hush;md's objQction and, on the basis of those results. concluued that the presumotion of legitimacy had been ovorcome. Accordingly, the court directed th.'1t n hearing be herd "on what is best for the Child," Mother and Husband filed sepnrate appeals. which were subsequentiy consolidated, to the Superior Court. The Superior Court conduded that, tn view of U10 f.1ct that the Stahr family remained Intact and Husband had AS-.'-.UITlOO. parentoJ r"Qsponsibility for Amanda. Ule presumption of paternity in Husband's favor was irrobuttable. Therefore. the court reasoned, the blood test results should nor Ilave been aamilted into eVidence. The court reversed the trial court's order and dismissed Appellant's complaint with preiudice. We granted allocatur to con~ider whether the presurnplion of paterniry applied in the present case. The presumption at issue - that a child born to a married woman is the child of the woman's husband - has been one of tho strongest presumptions kno'Ml to tho IDW.1 John , In _'ohn M, v Paula T" 524 Pa. 306, 571 A.2d 1380 (Pa.), ~!!, denied. 498 U,S. 850,111 S. Ct. 140 (1990), this CQurt noted that tne c:tcslgnation "presumption of legitimacy" had outli"led its usefulness, as the General Assi";mbly had abolished the legal distinction bP.tween "Iegitima.te>! and "illegitimate" children. Id, 524 Pa. at 3t3 n.2. 011 A..2o at 1383- 84 n.2 (clling 48 P.S. fjI67). The Court chose to refer instead to the 'presumption that a child bom to <1 married woman is a child ot the marringe:' & For the 'Sake of conciseness. we will refer in this opinion to the "prc5tJmption 01 paternity," the paternity at Issue being, of COUrse, the husband's. [J-236-98) - 3 04/13/99 13:05 TX/RX NO.2562 P.004 . M. v. Paula T., 524 Pa. 306, 312.13, 571 A.2d 1330, 1383 (Pa.). ~!.!!ill.!fQ, 498 U.S. 850, 111 S. Ct. 140 (1990); Ci1.imlp. v American Radiator & Standard Smutarv Com., 366 Pa.. 219, :255, n A.2d 439, 442 (1951). lladitionally, the presumption can be rebutted only by proof either that the husband was physically incapable of falh~ring a child or th~t he did not have access to his wife during the period of conception. Freedrmn v McCandless. 539 Pa. 584. 591. 654 A.2d 529, 532 (1995); Jones v. Tro;ak, 535 Pa. 95. 105. 634 A.2d 201, 205 (1993); Jonn M., 524 Pa, 31313-14,571 A,2d at 1384: C;lirale. 366 Pa. 3t255, n A.2d at 442. Thm:.. it has been held that. where tho presumction applies. blood lest results (e-xisting or potential) are irrefcvo.nt unless and until the presumption has been OvercorM. ~, 535 Pa. at lOS, 634 A.2d at 206. It has also been held thai, in one particular situation, no amount of evidence c."m Overcome the presumption: where the famHy (mother. child, and husband/presumptive famer) remains intact at the time that the husband's paternity is challenged. the presumPtion Is irrQbuttab1G. Frccdmnn, 539 Pa. at 592.654 A.2d at 533; Coco v. Vandemrift, 416 Pn. Super. 444. 448, 611 A.2cJ 299. 301 {1992}. This is suCh a case. Nevertheless, Appellant contends that the presumption of paternity is inapplicable. CIting this Court':;; plurality opinion in nrinklev v. Kinl1, 549 Fa 24 t. 701 A.2d 176 (1997), Appellant argues lhat the presumption Will no longer be aDPlied autcO'k"lUcally. but only where such application will further the policy on which thll presumption Is ba.sed. That pQlicy is, in Appellant's view, the best interests of the chlld. According to Appellant, application of the presUmption Wilt not promote the best interests of the child In this instance because of thA "unique factI:" of tho casQ, induding the o.3~erted fuet that Molhblr and Husband, although roamed, "Cfo not enjoy tho traditional maroage and f;:amily unit" Appellant also contends lhat IV10ther and Husband are estopped by their own conduct from inVOking the presumption of patemity. [J-236-98)' 4 04/13/99 13:05 TX/RX NO.2562 P.005 . Brin~ concerned the patemity of Lisa Brinkley's daughter, Audt1anna. Arthougn Audrianna was conceived during Usa's marriage to George Brinkley, Usa, accon:ting to her own testimony, was not having seX\lW relations witn her husband during that tIme, but vms ha.....ing sexual relations with Richard King. Georgo Brinkley moved out of the mantal residence four months before Usa was born, and the parties eventually divorced. Lisa. tilod a cOmplaint for support aga.inst King and, after King denied paternity, a motion lor adjudication 01 paternity. King responded w'ith the assertion that Usa ......'as preduded from c1atmlng that he was Audrianna's father because she had failed to rebut lhe presumption of her former husband's paternity, The trial court aQre~, and the Superior Court arfilTl'\E':d. This Court granted allocatur '1n order to review the way in which the presumption of paternity functions in Pennsylvania law." kl at 246,701 A.2d at 178 (footnote omitted). In the lead opinIon, the pluraDry (Chief Justice Aaherty, joined by Justice Cappy) set forth the fundamentals of the law of presumptil:e paternity, as summarized Qbove. Among these fundamentals was the principle that "the presumption is irrebuttable when a third party seeks to assert his own patemty as against the. husband in an intact marriage." Id, at 248. 70t A.2d at 179. The public policy in support of the presumptlcn, the pluralrty axplainod. was "the concem that marriages which runctlon as r<1mry units should not be destroyed by disputes over the parentage of children cancQlv~d or born during tho marriage." ~ at .2.49. 701 A.2d at 180. Thus. -{tlhird parties shoufd not be allowed to attack the integrity ot a funcfioning marjtal unit, and members of that unit should not be allowed to deny their Identities as parents." 19.:. (footnote omitted). Having SlJmmAr1700 the controlling prinoiplco, fhe plurttJity articul<3ted a r'lilruBWOtk by which those principles should be applied: [T}he esse-nliallegal analysis in these c.:lses is r.vorold: first. one considers whether the presumption of paternity applies to a particular case. If It does, one then considers whether the presumplfon has been rebutted. Second. It the presumption [J-236-98] - 5 04/13/99 13: 05 TX/RX NO.2562 P.006 . has been rebutted or is in.'lpplicable. one then questions whether estoppAl Rpp!ies. Estoppel may bm cilhcr So plAintiff from making the claim or a defendant from denying paternity. If the presumption has been rebutted or doos not apply, and if the facts of the case include estoppel evidence, such evidence must be considered. It the tlier of fact finds that one or both 01 the parties are estopped. no blood lasts will be ordered. !!i.. at 250,701 A.2d at 1ao. This analysis. as the plurality recognized. begs the Question of when fha presumption was to be applied. The plurality's answer, taking into uccount the dramatic changes in the nalure of malE",'-fcmale relationships that had occurred since the pre~umption was created. was that it'le presumption of paternity applies in any casu where thA. policies which underlie the prcsurr.prion [namely, the preselvation of marriiJges] . . . , would be advanced by its appfication, and in othor cases, it docs net apply" !<;t. at 250.St. 701 A.2d at 181 (footnote omitted). Thus. the prurn1i1y reasoned. the presumption did not apply in the case then at bar, as there \Vas no marriage to protect. Accordingly, {he Superior Coun's order was vacated and Ule case was remanded to the tnal court for a hearing on the issue of estoppel. Justice Zappala concurred in the result but expressed the View that the traditional definition of non~access was unnecessarily restrictive. Justice Nigro. who also concurred in the result. suggested that "the better course of action in these cases is to allow the trial COUlt to determin@ pa.ternlty on a case-by ctlse basis, unburdened by the obligatory application of a presumption or an estoppel theory" kl, at 253. 70t A.2d At lA2 (Nigro, J.. concurring ;;lind dissenting). In Justice Nigro's view, the trial court should be allowed to order bk>od testing of both the alleged and the presumed fathers. Justice Newman. joined by Justice Castille, filed a concurring and dissennng optnlon. 8M Concurred In the view that the presumption should not appty where its PlIrposa would not thereby be served. but also opined that. when the presumption did apply. blood tests should be aV\'ulable to the [J.236.9SJ - 6 04/13/99 13:05 TX/RX NO.2562 P.007 . '. pArties tiS R menns of rebutting the presumption. JU3tice Newman agreed .....~th the plumli1)' IMt the presumption did not apply in the case before the Court. but did not agree IMi the case p.-esented a question of estoppel. Accordingly. she wus of the view that the C<lSC should be remanded for blood testing of LIsa. Audrlanna. and King "to finally resa/vA the issue of Audrianna's father." !.tl.. at 269, 701 A.2d at 190 (Newman, J.t concurring and dL~~enting). Allhough thl:!: sl:!v(:!raJ opinions in Orinklev reftect the criticism that has been directed toward the presumption of paternity in recent years, Appcllo.nt's rclkmco on thClt dccbion is unavailing. In the present case, the m:unago into which Amanda was born contjnu~s. Indeed, desplto tho mantal difficulties that they have encountered. Mother and Husband have never separated. Instead, they have chosen to preserve their marriage and to r.:l.isc as a family the \hree cniJdrcn born to them. includin9 Amanda.. As this Court observed In John M., [t]hem i!\, in shott. n t.!lmily invclvt"d here. A woman and a mml who have married and lived together as hus.band and wife. givinQ birth to and raising [several) children, have obvious interests in protecting their family from the unwanted Intrusions 01 outsiders (even onos who have h<'ld serious rela.tionships with the mother, father or children). The Commonwealth mcognlzes and ~eeks to prot~ct this basic and foundational unit of sodetY. the family, by the presumption that a child born to a woman while she Is married is a child of the marriage. td at 317-18. 571 A.2d at t386 (Cllatlon omitted). Thus. the present case comes within U,e limited set of circumstances in v\'tllch. according to the Brink1cv plurality, the presumption of paternity continues to apply. In lhls Case, moreover. the presumption is not rebuttable.' ~ In her dissenting opinion, Madame Justic~ Newman discerns a conflict betweet'l this holding and tho Uniform Act on Blood Te~t~ to Determine Paternity, now eodlncd at 23 Pa.C.S. 55104, which she views as Codifying the public policy that blood testing mo.y always be emoloyed to rebut tho pmsumptlon of paff".mily. Such position, however. ha~ (Gor"ttinued...) [J-236-9B)- 7 04/13/99 13:05 TX/RX NO.2562 P.OOB . '. Appellant argues for a ditterent result by citinn the "uniquQ facts" of tho c.~so. HA asserts that HU$oand and Mother's marnage I<1CKS love and innmacy and eXists in name only; Husband and Mother have experienced conflict c.1.used by adultery; Mother represented to others that Amanda "\'as Appellant's child; Husband suspected that Amanda was not his child; and Husband exhibited an attitude of indifference tow:ud Mother and Amanda. In sum, Appellant asserts. Mother and Husband "do not ~nioy the traditional marriage and larruly unit." While App(!lIant's assertions ma.y bo f~etu.::l.l. they are not unique!. To tho contra.ry. they indicate that the marriage of Mother and Husoand. like many, has encountered. scnous difficulties. It Is In preclsety this situation. as was suggested in John M., that the presumption of paternity serves its purpose by allowing husband and wife. despite past mistakes. to strengthen and protect the-Ir family. Appellant's argument on this point is therefore without merit. Nor are Husband and Mothe, estocccd. as Acoellant suggests. trom Invoking the presumption. Estoppel in paternity actions is merely the legal detennination that because af a person's conduct (e.g.. holding out the child as his own, or supporting the child) that person. regardless of his true biological status, will not be permitted to deny parentage, nor v.ill1he chil:l's mother who has participated in this conduct be permitted to sue a third party for ~upport, claiming that the third party is the true father. (...continued) never commanded a majority of this Court. See John M.. 571 A.2d at 1385 (stating that .section 6133 of the Act [now 23 Pa.C.S. fi51 04(0)] does not gi....e (he putative Cather the rioht to compel a presumptive father (husoand) to submit to blood tesls"): t";f!A Also John M . 571 A.?d at 1389 (Nix. C.J.. concurrmg, and joined by aU others)(deoIo.nng that "a third party who stands outside the marital relationship should not be allowed, lor any purposo, to challenge the husband's claim of parentaqe"). [J'Z36-98] . 8 04/13/99 13: 05 TX/RX NO.2562 P.009 . '. Brinklev, 549 Pa. at 248 n.5. 701 A.2d at 180 n.5 (quoting Frccgmon, 53!) Po:. o.t 501-92. 654 A.2d at 532-33). As the plurality noted in Brinklev, tI1e question of estoppel does not arise unless and until "'the presumotion has been reuutteu or hi inupplicnblc. . ..~ hJ~ at 250.701 A.2d at 180. Here. tile presumption apOlies anti is not1.rebuttal.Jle. Appellant's reliance on the doctrine of estoppel is therefore unava.iling. Order affil'JT'led. Mr. Justice Nigro files a Dissenting Opinion. MAdame Justice Newman filos a Dissennng Opinion In v.:nich Mr. Justice Castille joins. [J-236-98] . Y 04/13/99 13:05 TX/RX NO.2562 P.OlO . . . (J-236-'996] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT TIMOTHY STRAUSER. No. 44 M.D. Appeal Docket 1998 No. 45 M.D. Appeal Docket 1998 Appellant v, Appeal trom the Order at the Superior COull AI\IAreI11214{97 Mol No. 10tOHDG96. reversing the Order entered 11/25196 in tho Court of Common Pleas of Juniata County, Civil Diloision, at No. 172-1996. APRIL R, STAHR. Appellee ARGUED; Nov~mber 17. 1996 DISSENTING OPINION MR. .JUSTICE NIGRO DECIDED: MARCH au. 19~9 Since I believe that, the trial court properly found that the blood test results ctisdosing a 99.99% probability that Appellant is Amanda's father were admiSSible. respectfully dissent In effect, lho mojority concludes lhat tha "presumption of patemity" autom~ticaJly fomcloses any consideration of the blood lest results at issue here, which \\Il3re voluntarily ~aken and all but confirm Appellant's status as Amanda's biologi~1 fAThP-f. By ngicly apptyina this presumption. the majority only perpetuates the disturbing trend noted by my concurring and dissenting opiruon in Brinklov v. K\n!). 549 Pa. 241, 701 A 2d 176 (1997) (plurality) (Nigro. J.. concuning and diss@nting). illl;'!re. I observed that the strict application of the pf9S1Jmption doctrine has only acted as ~n obst:l.clo to the discretion of the trial court 04/13/99 13:05 TX/RX NO.2562 P.Ol! . {J'230'1998] to order Llnd tJ:::iH t;Jlooo testing 01 the parties. which i$ "the Single most valuable tcCMIQUC avnllable to a court in determining patt'nrage." lQ. at 253. 701 A.2d at 182. As noted by tho mOIOrity, my opinion in Brinklev advocates that the tletter approach in paternity matters \'VOuld be to allow trial courts to determine paternity on a case-by-Ci1.SA ba.:.b. unburdened by the ubllgatory dppllcation of the presumption do~t11ne. !!;!. 3t:ch an approach permits a court to weigh the relevant evidence and circumstances of each particular SItuation, including blood test results, concerns as to tho maintenance of an Qxisting family unit ancllhe interests of the child. in order to reech an equitable re$utt. Irl. .at 254.701 A.2d 0.1 18::1. The benefits of this approach are exemplified by the circumstances of me Instant case. Here. voluntary test results rBpresenting \/irtua1Jy conclusive eVIdence of Appellant's patemity are availi'lbfe and undeniably probative of the quostlon of ""no Amlnda's biological f.3thAr is. Arlditionally, though Amanda's moth~r and her husband remain married. I do not believe that their marital status should serve as a license to completely disregard a blolOlJir.al f;;tlh~r's interest in having 8 relationship 'With his child. Moreover, lor rredic31 and orner reasons. It may very well be In tl1~ best Interests of Amanda to know the identity of her bioloQical father, It is simply unreasonable. in my view. 10 prcdude the tn,,1 r.nurt from consLdering the interests of those involved and the evidence of the blood tests sOIay on thR basis of a presumption that i:; no Icnger rcilcctivc of today's social r~ality, For IIlH:SM reasons, I believe the trial court propeny admitted the blOOd lest results Into evidence and directed that a hearing be held on the issuo of who.t is best for Amanda. Thus, I would rp.ve~e thlof Sup~rior Court and affirm the order ot ~ tl1a\ court. 2 04/13/99 13:05 TX/RX NO.2562 P.012 . [J-236-98] IN THE SUPREME COURT OF PENNSVLVANIA MIDDLE DISTRICT TIMOTHY STRAUSER. No, 44 M,D, Appeal Docket 1998 NO. 45 M.D. Appeal Docket 19!Jl:I Appellant V. Appeal from the Order 01 Superior Court entered 12/4197 at No. 101OHBG96. reversing order entered 11/25/96 in the Coun of Cornman Pleas at JUnlata County Civil Division, at No. 172-1996 APRIL R. STAHR. Appellee STEVEN STAHR. Intervenor ARGUED: November 17, 1998 DISSENTING OPINION MADAME JUSTICE NEWMAN DECIDED: MARCH 30. 1999 For lIle reasons set forth below. I reSpeCtfUllY dissent. While I agree that the .presumption of paternity" attaches to the facts or this casu. I oi:;;agree that it is Irrebutable. Rather. this presumptIon should be open to rebuttal by reli.:'lblo blood tQst evidence. April and Steven Stahr have been married since April 4, 1992 and they continue to be married, reside together and have never been separated. The couple has three children, all born during the marrrage. The custody dispute that underlies rhi.~ sui. involves the youngest of these three chHdren. The record indIcates that April Stahr. at one time, aCk.nov,1edgel1 that Mr. $tn:l.u~l;;'r. not her l1uSbanCl, was tnls mIld's tatner and allowed Mr. Strauser ftequent vi!->if!; with the child. Apnl, the child and Mr. $1r-.-u'lOgr even 04/13/99 13:05 TX/RX NO.2562 P.013 . ~u\:)mIUed tu voluntary blood t~st:;" whIch !>now a 999n.;.. prO'03.OIlity th<tl Mr. ~tf;)UCOr i~ Ihe child's 1.).\tlAl". Mr. SIl1iu~cr tilp.d \1 complaint flq""nst Apnl $Iahr ~e.ftklnQ t)artliJ.\ cuEtOOy 01 his oaughtl:!( alter April beQ::m to Inw.-{.efB ...",tn OlE Vlsltaliull with thO Child. April'S hll~and. Steven. inlflrvencd In me a...-.tlon nnd rcq\u~~Ie<J \h;d Iht> comolaint bH dlp.\"i~ heCO,usa 01 the pre$\,lln~t1on lh3.t h~ W;).S 1M chIId's r~lhel" the trtal l,,;curt o,.Mruled tl.1r. Staht'~ objoctio(\~. QQlY\mQd Ule blood 10$1 ()vlalint,;~ Md orocNd a l!1,',)nno Ii} detenTlIM wrul C\\stoctv arrangeml:!nt wa3 In ':he be!>' intt!res's Of th~ chihJ. The Stahrs hle.d u"",lr appeal of this l.Ie'ermination boetom Illtt trial c:.un. euuld kold the o\Jotod'l~"ntl. Till,;' C.,re Issues lnvoh.....i in thIS 3OP~ are: ",-hettler me \Ii~ umrt crroQ In rotusil1U to dlSnu~S Mr. Suaus,<"ir'S carr.plwnt l;l~\~""rt en thE: .prewmp1ivn 01 p-au;mil'/' 'm favor ....t Mr. gtJhr and wl'Athcr tM t.:uurt erred in o.dmi1bnq gQnetlc lJlood to=>1 C\';Oe-I1C~ to r~but tl'!::lt pr~"l,Il"l--'.l(m. In orOGr to d@o'Bnnin~ whether Ihe pm,",-ump'lcn ot pate-mily a\to.we3- to a. partiL,t,IM r..!13e. WO: m\J::J1 fi~t df!Qda ,I the. caSl't proo;;;I1V aj",alICe5 th~ Cllll'POSC of tM pW':>\lmptlOn. Brinklev \/. Kir,a, ~49 Pa. :.11, 9tO-61 , 701 A.2d. 176. 1U5- e.s f\~97}. Here, I aQrec that tM prH$umptlOn of p3telnlty IIp;:llleS beCal,i:'': 1M pl..Oro::::e 01 toe pr~slllnption l~ \l"ldlcallid in th~ filets beloro liS - ~peCl1ica"y tlla! tM St..-.tut; llWrtl<l.ge is currcnrtv. a.nd ..t an relevun1 til11~ ":\$ been. IIlta.ct. !.:,L. (NQWITlOJl J. COIlWlring nnd diSSOfntU11J statemcnlllPuroosl:i (Of tJ(e.~umptn::n l~ liu.iler! ~ ::l~ccervatIOI1 of IhA 1"'\aTTI8gcl. N~xt, w.a l'Tl1.I'" addre~3 whem~f IhFt presumPtiOn n11d1 bl": rebutted. !Q.. Th~ MAlority poSlts that in mis case. vmelH the ~rriaQc Is int""..:t., ~lb\tc oa:iC'(' NI.tuirA5 thai tnlil: pre5ulI,~\iOn be lrrcbuuot,,_ 'rlIsa.orcc. I' Is 9'-""'lrally not tor itIi$ C'llll't to rn.,\<'\!I 04/13/99 13:05 TX/RX NO.2562 P.014 . ~uCl'\ assvrOOns 01 "pUbliC polley" tJnl('!~S sucn poliCV i" c\enr ~,r._,q., MtlSCllrUW ,,t. UnllOO St:olte'!;, ~N U$. 49. 66 (lc).1'3I(MpubltC Dollev Is to Ul:' ?Isccrta\l'l.cd by rclmenm to tl'le law~ "'I'd legal prcccaants "".\lJ ....,t from Q=naral L'onsioQn\tiom, ot hllPUO~ public iHtere~t")~ Mam!!D v G0nq~. ~O p~. ~U, 32'1.11 A 2d 407. 4QB (19"'I(.',n ...."r j:..;d:cit:\\ f;Y50lertl the powor of coun.'l. to IOlln\,llat~ pronotlnt:em~l\ts of pu\)tic POlicV IS i'>IlarplV resuiewtj; utt,,"rwl~ tl-~y would \:)00(\1"1\1\ lluji.cl::tlleoisli\tures I'3.ltIGr man h's'rull"lentau'JC~ for th~ mtQrpretH.\ion ollne le.w.'1. HlOre, the M.'\}onty'G conc:lusiull lhl!t .PUOIIC pOlICy" r",,,ttires 6.1\ Irrebut::l:b1u prGSllmptic," in t,).\lor of Mr. St3,hr i'.i erroneQ;u~ bOcaus~ i~ i5 in direct COl1l1ict wilh I,hA pl..inl<il"'-Ju.'l.ge at thO Uniform Ad nn Blood n::z\S to D",lefT'l'l.inA Patemlty (th~ Act)_ ?3 Pa.C ~.A, ~ 51tJ4(cl. inslt'<:la, 1M legl:3ICl.tv.ro has u.l(1inA:d t!1e "i:!uclie poltC'!'" ...1 \\;'$0 C"mn'Lonwcalth ana de:d!ly Mc1 exprc::Nly provlcl'?d IlvII a court I'I'\.'W corr.pel illl~t!~tcd rllut!c:; 10 ~utlTJit tlJ t.~),""\<i t~~tll'\~. nnd that ;,uch t....)l.1l1 tesbng ron robut UN pJ1"sumplion of patcmlty. 23 Pa. CRA!i 5104 {.;).;md ('::j)'. M"r~~ver. as I EtatQd ill fi!ID~ We ....'OUlu he bOlh OCIIVG ami u"mt"is to :Jc:-peh:ate 1I1~ .'iotrenqth of thIs S~tior'l~ 51 04 (el ana (g) itall:! o:l~ tonOW3: (l~) AlJthOi'lty fer test.-h) '''''\1 matter $ubl"*Ct to thi.", ~ection In whIch pal.ernity. Ill.ucntage or idenlity of ~ chlld i.."l. a ~\C'o'ant 1;;1Ct. thl:' (';0011. upon n~ own illllidli\le ,l( uo~n cuggQst10n tl1l1fl~ cy or OIl CCh3!t c:l all}' p."~on wncr....o uloua \s ,ovu!vCd.. ;r.ay OT. u~on motion ,-.I::lIlY pa~ to me actiQlI Il\..\d" AI a tlmo so as IIvt to oolay the prcooedin<:J'S unduly. ~hall or(lor the 1\1Q~t, ~tuid ilIld &llog<<l f~tt1l;.'1 to ~iJhrt.;t to blood testS. ;f doilY p.'trty rcruce$ to sub~it In tne te,ts. the court 111Cl'l rpwc;cl....e t.~~ Qu~ellon lit fJ.;IltllTlity. \?QI'C(lt3qQ or iu.;..lnty of a. child aQalrtsl 11m: party or enforce its order if the r1Q.hts ot olheri and l~ 1nt~rest3 olluStlca w I~flljire. (g\ Etlvd on (lresu~tIQn 01 l~gitillli'lC:Y, -1 he presurnpuon of h!:yitlmocy Of Ol ctuld uam durin.g wtaloek IS; over0Jl11A If the court linds ttuil the ('.l'lI'Ielu9IOnS of all 1t1\4 ~)CpF!rts as di~dCS~ by tM I"'Vldencc based upon tlou tosts show that tile hu::ibW"ld i~ not the fatllQr ullho:! l'.;hild. 04/13/99 13:05 TX/RX NO.2562 P.015 . .. presumption and ignore me results of reliable: scientific tests; , .. Pennsylvania. is fast becoming one of only a minOrity of states that does not accept the results of blood tests that disprove the husbana's patem1ty to rebut the presumption. Approximntcly two.thirt1s of the states currently have statutes: pcrmiltjog blood tAsts to be considered in me OelCrmlnaliUlI I)f p.3.temity. HOMER II. CLARK, JR.. 1 THE LAW OF DOMESTIC HIOLATiONS !N THIO UNITED STATES 340 (2d cd.198"f). We should JOin the m3jority of statf'lS and accept these reliable scientific tests '0 rebut tho presumotlon that a child bom to u married woman i:!'l her husband'~ child. Brlnklgv v Kinn. 549 Pa. at 188, 701 A.2d at 264. lhus, fOf tho reAsons I hava set torth here And in Brinldev, I believe that Il"le Inal court did not err in refusing to dismiss Mr. Strauser's c....lstcdy complaint Mlcly on the basis of the presumption of paternity and did not err in admitting the blood test eVidence. Accordingly, I would reverse tho decision of the Superior Court and ('f>,instnlc tl\e decision of the trial court so that me coun can conduct a hearing to determine the best interests of the Ctlilu involved. Mr. Justice Castille joins this dissenting opinion. 4 04/13/99 13:05 TX/RX NO.2562 P.016 . ~ ~,;;-:'{"'t d~~;;:' ,,"~: ,.;~'<--~-:-' -,::.~.~~. '0- , ""':~~'" :. ~" . .,' .;r'-:-2 ...,....., ~;L~_ ~~\' '-'.'!"M" --,"^, .. . .. "-,' ~ -' I ;j ~ PETER J. RUSSO, ESQUIRE PA Supreme Court 10: 72897 61 West Louther Street Carlisle, PA 17013 (717) 249-2721 Attomey for Plaintiff . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99 - )3/ CML ACTION - LAW CUSTODY JEFFREY A. MOORE, Plaintiff v. LAUREEN ULRICH, Defendant COMPLAINT FOR CU~TODY AND NOW, comes the Plaintiff, JEFFREY A. MOORE, by and through his attomey, Peter J. Russo, Esquire, and respectfully submits the following in support of Plaintiff's Complaint for Custody: 1. The Plaintiff is JEFFREY A. MOORE, residing at 11 Fairfield Street, Newville, Pennsylvania 17241. 2. The Defendant is LAUREEN ULRICH. residing at 25 Regency Woods North, Carlisle, Pennsylvania 17013. 3. Plaintiff seeks custody of the following child: Name Baby Moore Present Residence 25 Regency Woods North Carlisle, PA 17013 4. Baby Moore was bom out of wedlock. J2Qg Unknown 5. The child is presently in the custody of Defendant, who resides at, 25 Regency Woods North, Carlisle, Pennsylvania 17013. 6. During the past fIVe years, the child has resided with the following persons and at the following addresses: Persons Address Duration Defendant 25 Regency Woods North Carlisle, PA 17013 7. The mother of the child is Defendant, cummtly residing at 25 Regency Woods North, Carlisle, Pennsylvania 17013. The mother is married. 8. The father of the child is Plaintiff, currently residing at 11 Fairfield Street, Newville, Pennsylvania 17241. The father is single. 9. The relationship of plaintiff to the child is that of father. The plaintiff currently resides with the following persons: Name Carisa Carey Relationship Fiancee 10. The relationship of defendant to the child is that of mother. The defendant currently resides with the following persons: Name Keith Ulrich Chad Ulrich Chelsa Ulrich Relationship Husband Son Daughter 11. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the child in this or another court. 12. Plaintiff has no information of a custody proceeding conceming the child pending in a court of this Commonwealth. 13. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child. 14. The best interest and permanent welfare of the child will be served by placing legal and primary physical custOdy of the child with Plaintiff. WHEREFORE, Plaintiff requests this Honorable Court to order that primary physical and legal custody of the subject minor child be placed with Plaintiff. R91;pectfully submitted, c:~ c=v~~ ~ Peter J. Russo Attorney for Plaintiff Date: t/ ~ 1'1 '1 . , VERIFICATION I, Jeffrey A. Moore, verify that the statements made in the forgoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. ~ 4904 relating to unsworn falsification to authorities. Dated {I It '/ /' , --.J ~ "' - ~ ~ ~ ~ '~ ~ ~ '\ '\ \ ~\~ ~t (} 'f) CJ ~-;-. W .'-,! < , ::;.:1 . ,: ,-11 I ,'rl '::tJ - :::J :.",) ~:6 ~9 JAN 1 1 19W v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.99- /3/ i;..1 CML ACTION - LAW CUSTODY JEFFREY A. MOORE, Plaintiff LAUREEN ULRICH, Defendant AND NOW, this \ U. day of I" 1-1\, Y'I~ _, 1999, upon consideration of the attached Complaint, it is hereby directed that th parties, and their respective counsel appear before J-\.J\:r-r ~ '1.., (' -\\ \ r ('\'-1 ) 1=C.5.rt \ , . the Conciliator, at-fn-r-: ~~, ~r\("\~ ~m n,1Y\t::l~.~6 10. ('0 r-\'hm"R on the \ \ day of v..o.~ (\--.. , 1999, at ..9,', ~r:::> (l.m. for a Pre-Hearing Custody Conference. At such Conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and nan'ow the issues to be heard by the Court, and to enter into a Temporary Order. All children age five or older may at the request of either attomey or party, be present at the conference, Failure to appear at the Conference may provide grounds for the entry of a temporar)' or permanent Order. FOR THE COURT, By:.}WlJ:j,\~:^ ~M~ ~. Custody Conciliator '~ The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyers Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 ~k~JiL -:~~ .i1fY1( . fto/"' '}': ~ . ~ 6& ,II ~-y?,~~/'P ptr5l.t t~,(j (.~'i\,',"I'GtJ ~.' :,0 SHERIFF'S RETURN - REGUU,R CASE NO: 1999-00131 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MOORE JEFFREY A VS. ULRICH LAUREEN DAWN KELL CUMBERLAND County, Pennsylvania, who to law, says, the within COURT ORDER , Sherif= or Deputy Sheriff of being duly sworn according IN CUSTODY was served upon ULRICH LAUREEN the defendant, at 19:43 HOURS, on the 14th day of April 1999 at 25 REGENCY WOODS NORTH CARLISLE, PA 17013 ,CUMBERLAND County, Pennsylvania, by handing a true and attested copy of the to LAUREEEN ULRICH COURT ORDER IN CUSTODY and at the same time directing Her attention to the contents thereof. sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 4.34 .00 8.00 $3().3"l So answer:~~ ~~ ~~'" ~ ~<:. ~ K. lhomas K~lne, ~ rl f PETER RUSSO 04/15/1999 by -.s)a..lPY\ -c3. ~ lJepm:y ~hen_ff Sworn and subscribed to before me this /~l1:::::. day of ~ 19 99 A.D. 0"<4~ Q ~'?t" #- I pro ono ary M.'\o, 2 J 1999(1 JEFFERY A. MOORE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANLA v CIVIL ACTION - LAW LAUREEN ULRICH, Defendant NO. 99 - 131 CIVIL IN CUSTODY COURT ORDER AND NOW, this ;) &;, 1A day of March, 1999, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: I. A hearing is scheduled in Courtroom No. <I of the Cumberland County Courthouse on the ,;(la day of (j #..7/1..--1..--'-/ , 1999, atCj:o~ A.M. at which time testimony will be taken in the abovl case. At this hearing, the Defendant, Laureen Ulrich, is directed to appear and, at a minimum, account to the Plaintiff all information regarding whether Defendant has given birth to a child who is a child of the Plaintiff. 2. Defendant may through her counsel contact the Custody Conciliator in this case and arrange for another Custody Conciliation Conference in advance of the mentioned hearing date. At this Conciliation, the parties can exchange the pertinent information relating to this child and also attempt to reach an agreement. 3. Counsel for the Plaintiff is directed to have a copy of this order served on the Defendant by personal service via the Cumberland County Sheriff's Office. BY THE COURT, 4/L J. cc: Peter J. Russo, Esq. _ ~ (y,,,..,,..J.:.L ~ Laureen Ulrich ~ - I . ~blq'1, >'- .1'. ~.., II'''' r7 """ C^ t.6: ,;') ;!'" d~." ob IUHI,Ur",.,....,. ,.,. ~O AUVJ.: '\;Vj 1-,-V'0(.; :HiJ. ~ 3::J1:BQ-{811:l JEFFERY A. MOORE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW LAUREEN ULRICH, Defendant NO. 99 - 13 t CIVIL IN CUSTODY Prior Judge: CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: 1. The pertinent information pertaining to the child who is the subject of this litigation is as follows: Baby Moore. 2. A Conciliation Conference was held on March 11, 1999, with the following individuals in attendance: The Plaintiff, Jeffery A. Moore, with his counsel, Pet(:r J. Russo, Esquire. The Defendant did not appear. 3. Plaintiff asserts that he is the father of a child that was born at an unknown date. Plaintiff does not know the child's name. Plaintiff suggested that the child was born a few months ago and that the Defendant Mother had made attempts to put the child up for adoption. Plaintiff desires to exercise visitation rights with respect to the minor child. 4. The Defendant did not appear at the conference. Plaintiff's counsel provided the Conciliator with a certified mail return receipt evidencing that the Defendant had been served with notice of the Conciliation Conference. 5. Based upon the above, the Conciliator recommends the attached order, >(22/ q ? DATE q fl-fJ HuOert X. Gilroy" Esquire Custody Conciliator [J~23l>-981 IN THE SUPREME COURT OF PENNSVI_VANIA MIDDLE DISTRICT TIMOTHY STRAUSER, Appellant v. APRIL R. STAHR. Appellee STEVEN STAHR. Intervenor MR. JUSTICE SAYLOR No. 44 M.D. Apl)eal Docket 199B No. 45 M.D. Appeal Docket 199B Appeal from the Oroe, of Superior Court entered 12/4/97 al No. 1010HBG96, reversing order '~ntered 1 t 125/96 io the Court of Common Pleas of Juniata County, Civil Division. at No. ~72-1996 ARGUED: November 17,1998 OPINION DECIDED: MAI~CH 30, 1999, The issue in this case is whetller the presumption 01 paternity bars Timothy Strauser ("Appellanf') from seeking to establish, on the basis of blood te!~ts favarabte in his claim, that he is the father' of Amanda Stahr, the youngest of three children bom to April Slahr ("Mothe(') dwlng her marriage to Steven Stahr ("Husband"), Motller al'lll Husband remain married, and they oppose Appellant's claim. The Superior Coul1 concluded that in such circums1ances the presumption does indeed bar Appellant from asserting such daim. We affirm. On Mav 20, 1996, Appeilant filed a custody complamt ClIg8.inst Mother. In the complaint, Appel/ant asserted that he is Amanda's father, that Mother had aCknowtedged fJb,a J.IL.-- / ;( }''-~ 'I") lJ ~"'" , " !/ r-,/,'" (,Ii , .. /3l /'; t ,/ / i /1/ . / I'J .1 04/13/99 13: 05 TX/RX NO.2562 P.002 . his patemity, ensured Ihat he enjoyed frequent visits with Amanda. and sometimes enlrusted Amanda to his care; and that he. Mother, and Amanda had submilted to blood tests, the result~ oi \l\lhich disclosed d 99_99% probability that he was Amanda's father'. Appeliant also alleged that since receiVing 1he blood test results, Mott\Q( had interfGred with his reiationship with Amanda. In view of the bond that existed be~veen him and Amanda. Appellant asserted. it would oe in the child's best interests it he were granted panjal custooy ot ner. Mother filed preliminary objections in which she sought the dis.fr.~, of Appellant's complaint on the basis of the pre~umptron that Amand(l. was a child or the Stahrs' marriage ialso known as the presumption of tegitimacy, or of Husband's paternity). Husband hied a petition to intervene, which was granted, He then filed preliminary objections seeking, as had Mother, to have Appellant's complaint dismissed based on the presumption of paternity_He also asserted that AppP.llar'lt was equitabiy estoppGd from assorting Paternity. as he had not fj nancially or emotionally supported the child. On November 25, 1996, following a healing on pre.minary objectIons, the trial court entered an order slahng 'that the blood lest resulls are hereby actmitted and this matter shall b9 schedule.d for a hearing on the issue of what is be$t for the subjeCt Child." In an accompanying memorandum, the trial court redted its factual f~ndings, as follows: 1) Mother and Appellant had engaged in sex on at least one occasion around the time of Amanda's conception; 2) Mother and Husband were also having sex during that period of lime and were using tlte WIthdrawal method of birth contrOl; 3) Mother and Husband were marlied at the time of Amanda's conception and birth, remained married. afld had never separated; 4) Mother had held Amanda our to others in the community as Appellant's child and had promoted a relationship between Appellant and Amanda; and 5) Husband had exhibited an attitude Of indifletence towa.rd Mother and the children, which attitude promoted Moth@r's relationship witn Appellant. [J-236-98j- 2 04/13/99 13:05 TX/RX NO.2562 P.003 . In ilS opinion and order ot November 25. 1996, the Iri~1 court acknowledged that II il were to rely on fI\e case law submitted by Mother and Husband, the case would be dismissed, as Appellant had failed to overcome the presumpl:ion Of patemity by showing non-access or impotency on the part of Husband. Nevertheless. the trial court concluded that Molher, having held Amanda oul 10 be Appellant's child and having volunlarily submitted to blood testill~ for the purpose of determining patefr'l!ity, was equi1ably estopped from contesnng Amanda's paternIty. The court then decideo to admit the blood test results over Husband's objQ:ctioo and, on the basis of those re~;ult5. concluueo that the presumption of legitimacy had been ove.rcome. Accordingly, the court directed thaf a he.ling be herd 'on what is besl for the Child: Mother and Husband filed separate appeals, which were subsequently consolidated, to the Superior Court. The SUperior Court concluded that, in view of the fact that the Stahr family remained intact and Husband had assumed paren1:a1: responsibility for Amanda, the presumption of paternity in Husband's favor wa.s irrebuttabl(~. Tnerefore, the court reasoned, the blood test results should not have been admitted into eVIdence. The court reversed the toal court's or<ler and dismissed AppellaMs complaint with prejudice. We granted aKocatur to consider whether the Pl'ls<:.ulnp.tiQn 01 paternity applied in the present case. The presumplion al issue -- that a child oom to a married woman is the child 01 the woman'; husband - has been one of the sU'ongest presumptions knoV\ll1 to the law.1 John , In John M. v. Paula T" 524 Pa. 306, 571 A,2d 1380 (Pa), cart li!l~, 498 U.S. 850, 111 S. Ct. 140 (1990), this Court noted thallhe designation "presumption 01 legitimacy" had outlived its usefulness. as the General Assembly had aba!lsh€~ 1he legal distinction between "fegitimate" and "illegitimate" children. Id., 524 Pa. at 31S n.2. 1>71 A.2ct at 1383- B4 n.2 (cillng 48 P,S. s167). The Cour! chose 10 relerlnstead to the "presumption that a child bom to a married woman is a child of the marriage." .!!!., For the sake of condseness. we win refer in this opinion to the llpresumption of patemiry," the paternity at issue being, of course. the husband's. [J-236-981 . 3 04/13/99 13:05 TX/RX NO.2562 P.004 . M. v. Paula T., 524 Pa. 306, 312-13. 571 A.2d 1380, 1383 (I'a,), cert. denied, 498 U.S. 850, 111 S Cl. 140 (1990); CairaJe v. American Radiator & Standard Samrarv Corp.. 366 Pa. 249. 255. 77 A,2d 439.442 (1951). Traditionally, the presumption can be ",butted only by proof either that the husband was physically incapable at farhering a child or that he did oot have access 10 his wife dUMg the period of conception. Freedman v, McCandless. 539 Pa. 584.591.654 A.2d 529, 5.12 (1995); Jones v. Troiak. 535 1'3, 95, 105,634 A.2d 201. 205 (1993); Jonn M., 524 Pa. at 313-14, 571 A.2d at 1384; CairQ!!!. 366 Pa, at 255,77 A.2d at 442. Thus. it has been held that. where tho presumption applies, blood t~st results (e)(isting or potential) are irrelevant unless and until the presumption has been overcome. Jones, 535 Pa. at 105, 634 A.2d at 206. It has also been h.,ld that. in one par1icular situation, no amount of evkience (:;In Overcome the presumption: where the family (mother. child, and husband/preSumptive father) remains Intact at the time that the husband's paternity is Challenged. the presumption is im~.buttablo. Freedman. 539 PeL at 592.654 A.2d at 533; Coco v. Vender<1rift, 416 Pa. Super. 444,448.611 A.2d 299. 301 (1992), This is SUCh a caSe. Nevertheless, Appellant contends that the presumption ot paternity is il1"pplicabte. CIting thig Court'fJ plurality opinion in Brinklev v. KinG, 549 Fa 241, ?01 A.2cJ 176 (1997), Appellant argues that the presumption will no longer be applied automatically, but only where such application will further 1he policy on which 'the presumption is based. That policy is, in Appellant's view, the best Interests of the child. According to Appellant, application of the presumption wilt not promote the best interests of the child in this instance because of the "unique fact":' of thQ caQQ., including the a3:,erted tact that Molh~r and Husband, although marned. "do not enjoy the traditional marriage and family unit" Appellant also contends that Mother and Husband are estopped by l11elf own conduct from Invoking the presumption of paternity. [J-236-98) .4 04/13/99 13:05 TX/RX NO.2562 P.005 . Brinklev concerned the paternity of Lisa Blinkley's daughter, Audrtanna. Althougn Audrjanna was conceived duling Lisa's marriage to George Brinkley, Lisa, according to her own testimony J was not having sexual reta1ions with her husband dming that time, but was ha.ving sexuai relations with Rjcnard King. George Brinldey moved out of the marital residence four months before Usa was bom, and the parties eVlmbJally divorced. Lisa tiled a complaint for support against King and, after King denied patemity, a motion lor adjUC1icaUon 01 paternity. King responded with the assertion l!1at Usa was preduded from claiming that he was Audria.nna's father because she had failed to rebut the presumption of her former husband's paternity. The trial court agreed, and the Superior Court affinned. This Coul1 granted allocatur "in order to review the way in 'Nhich the presumption of paternity functions in Pennsylvania Ia.w." Id. aI246, 701 A.2d all 178 (footnote omitted). In the lead opinion. the p1uraHty (Chief JusUce Raherty, jOined by Justice Cappy) sel forth the fundamentals of the law of presumptive- pa1emity, as 6umrna.riz:cd above. Among these fundamentals was the principle that "the presumption is irrebuttable when a third party seeks to assen his own paternity as against lhe husband in an inlacl marriage." Id. at 248, 701 A2d at 179. The pUblic policy in support ot the presumption. the plUrality Q~Ia.in.Qd. was ''the concecm that marriages which functlon as family units should not be destroyed by disputes over the parentage of children conceiv.ed or bom during thQ marriage." Id, at 249. 701 A2d at 180. Thus, '[t]l1ird parties should not be allowed to attack the integrity of a functioning marilal unit, and members of lhat unit should not be allowed to deny their idenbbes as parents: Id. (toomole omitted). Having S:lJmm:-..ri.:l:Q(i the. controlling prir'Jciploo, the plurality articulated a framework by which those principies should Oe applied: [T)he essenballegal analysis in these cases is twofold: flrsl, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption nas been reburred. Second, if me presumption 1J.236-9S] - 5 04/13/99 13:05 TX/RX NO.2562 P.006 . has been rebutted or is inapplicable, one Ir,en questions whether estoppel appJi@s. E$to.ppe~ may ba.r either a plaintiff from making the claim or a detendant from den\ling palemHy. It the presumptIon has been rebutted or does not apply, and if the facts of the case include estoppel ellidence. such evidence must be considered. If the tlier of 1act finds that one or bath Ot the parties are estopped, no btood tests wilt be ClrOered. 1Q,. at 250, 701 A.2d at 180. ThiS analysis. as the plurality recognized, begs th,e Question 01 when the presumption was to be applied. The plurality'€. answer, taking into account the dramatic changes in Ihe nature of male-female relationships thaI had occurred since the pre!umption was created. was that ~the presumption of paternity ap~ies in any case Where the policies which underlie the presumption [namely, the preservation of marriages}. . . , would be advanced by ilS application, and in other cases, it does not apply." (g, aI250-51. 701 A.2d al 181 (footnole omitted), Thus. the plurality reasoned. the presumption did nol apply in the case then at bar, as there was no marriage 10 ptotect Accordingly, lhe Superior Court's order was vBC8,ted and the case was remande',d to the tnal court for a hearing on Ihe issue of esloppel. Jusllce Zappala concurroo in the resuit but expressed the vIew tha11he traditional definition of non-access was unnecessarily restrictive. Justice Ni(Jro, who also concurred in the result. suggested that "thQ better course at action in these cases is to allow the (rial court 10 determine paternity on a case-by case basis, unburdE'ned by lhe obligatory application of a presumption or an estoppel theory." lit at 253. 701 A.2d 91182 (Nigro. J, concurring and dlssen1ing). In Justice Nigra's view, the tnal caurl shOUld be allowed to order bloOd testing of both the aUeged and the presumed fathers. Justice Newman. joined by Justice Castille. filed a concurring and dissenting opinion. She CQncurre(1 In the view that the presumption should not appty where its purpose would not there.by be served, but also opined that when the presumption did apply, blood tests should be a.vaiJable to tile [J-236.S6j- 6 04/13/99 13:05 TX/RX NO.2562 P_007 . parties as B means of rebutting the presumption. Jusnce Newrran agreed with the plurality tnal1he presumption did not apply in the case before the Court. but did not agree that lhe case presented a qUestiOfl of estoppel. ACCordingly, she wa6, of the view that the case should be remanded for blood testing of Lisa. Audrtanna. and King "to tinaJly resolve the issue 01 Audrianna's father." ili a1269, 701 A.2d at 190 (Newman, J., concurring and dissenting) . Although the several opinions in Blinklev reflect the crtticism that has been directed toward the presumption of paternity in recent years, Appollant'~~ reliance on that dcci$ion is unavailing. In the present case, the marriage into which Amanda W3S bom continues. Indeed, despite ltIe mantal difficulties that they have encountered, Mother and Husband have never separated. Instead, they have chosen to preserve their marriage and to raise as a. family the three children born to them, ;nduCiing Amanda As this Court observed in John M.. [t]here is, in short, a family involved here_ A woman and a man who have married and lived together as husband and wife, giving birth to and raising [several) chil<iren. have obvious interests in protecting their family from the unwanteej intrusions 01 outsiders (even ones who have had serious retationships with the mother, father or children). The Commonwealth recognizes and seeks to protect this basic and to\'Jndational unil Of sociefY, the family. by the presumptiOn that a chil<i born to a woman while she is married is a child of the m~irriage. Id. at 317-18. 571 A.2d at 1386 (CItation omlned). Thus, the present case comes within the limited set of circumstances in which, according to the Brinklev plurality, the presumption ot paternity continues to apply_ In this case, moreover, the presumption is not rebuttable.' In her dissenting opinion, Madame Justice Newman discerns a conniet between this holding and the Uniform Act 0/1 Blood Tests to Determine Pntcmlty. now codlhcd at 23 PoC.S. ~5104, which she views as Codifying the public policy lhat blood lesting may always be emoloyed to rebut the presLlmotlon at paternity. Such OO$i1ion, however. has (oontinued... ) [J-236-9B] - 7 04/13/99 13:05 TX/RX NO.2562 P.008 . Appellant argues for a different result by citing the "unique tacts" of \he case. He aS$arts that Husband and Mothers marriage lacks love and intimacy and eXIsts in name only; Husband and Mother ha'Je ex.perienced conflict caused by adultery; Mother represented fo others that Amanda lNaS Appellant's chtld; Husband suspected lt1at Amanda was not his child; and Husband exhibited an attitude of indifference toward Mather and Amanda. In sum, APpellant asserts, Mothe' and Husband "do not enjoy the lraditional marriage and family unit." White Appellant's assertions may be factual, they are not unique. To the contrary, they indicate that the marriage of Mother arlCi Husband. like many, has encountered senous difficulties. It is in precisely this situation, as was suggestl~d in John M., that the presumption of paternity serves its purpose by allowing husband and wife, despite past mistakes, to strengthen and protect their family. Appellant's argument on this poiol is the,eto,e w~hout merit. Nor are Husband and Mother estopped, as Appellant sUQgests, trom invoking the presumption. Estoppel in paternity actions is merely the legal det,ermination that because of a person's conduct (e.g., holding out the child as his own, or supporting the mld) that person, regardless ot his true biological status, wm not be permined: to deny parentage, nor will the child's mother who has participated in this conduct be permitted to sue- a third party to r support, claiming that the third party is the true father, {. ..eontinued) never commanded a majority of this Court. See John M., 571 A.~!d at 1385 (stating that 'section 6133 of the Act [now 23 PaC.S. ~51 04(c)J does not give the putative father the rioht to compel a presumptive father (husband) to submit to blood tests"); see also John M., 571 A_:>"d at 1389 (Nix, C.J., concurnng, and joined by all othel'$}(dec!aring that "a third party who stands outside the marifaJ rela.tionship should oot be allowed, tor any purpose, to challenge the husband's claim of parentage"). [J.Z36-98] . 8 04/13/99 13:05 TX/RX NO.2562 P.009 . Brinkley, 549 Pa. at 248 n.5. 701 A.2d at 180 n,5 (Quoting Freedman, 539 Pa. at 591 92, 654 A 2d at 532-33). As the plurality noted in Brinklev, the question 01 estoppel does not arise unless. and until "the presumption has been rebutted or is inapplicable. . .... tli at 250, 701 A.2d at 180. Here. the presumPtion applies and is non-rebuttable. Appellant's reliance on the doctrine of e$toppel is therefore unavailing. Order affirmed. Mr. Justice Nigro files a Dissenting Opinion. Madame JUStice Newman fl{GS a Dissenting Opinion in 'Which Mr. Justice Castille JOlns_ (J-236-98] - 9 04/13/99 13:05 TX/RX NO.2562 P.010 . (J-236-19981 IN THE SUPREME COURT OF PENNSYUIANIA MIDDLE DISTRICT TIMOTHY STRAUSER. No. 44 M.D. APP',al Docke. 1998 No, 45 M,O. Appeal Docket 199B Appellant v, Appeal from the Order of [he Superior Courl entered 121<~f07!'11 No. 1010HBG96, reversing the Ord"r entered 11/25/96 in tho Court of Common Pleas 01 Juniata County, Civil DiviSion. at N<), 172-1996. APRIL R, STAHR, Appellee ARGUED: NovemlJer 17, 1998 DISSENTING OPINION MR. JUSTICE NIGRO DECIDED: MARCH 30, 1999 Since I believe that the trial court property found that the blow test results disclosing a 99.990/" probability that Appellant is Amanda's fathl~r were admiSSible. I respectfully di~3ent. In effect, the mojority concludes 1hat the ~presl)mption 01 pe.temity" automaticaJly forecloses any consideration 01 the blood test results at issue here. which were voluntarily laken and all but confirm Appellant's slarus :;IS Amanda's biological fathp.r, By rigklly applying tnis presumption, the majority only perpetuates the dIsturbing trend noted by my f':Dncurring and dissenting opinion in BrinkJey v. King, 549 PB.. 241, 701 A~c1176 (1997) (plurality) (Nigro, J., concurring and disssnting)_ Thi;'!re, I observed: that the strict application of the PfQsumption doctrine has only a<;ted as an obstaole to the discwtion of the trial court 04/13/99 13:05 TX/RX NO.2562 P.Oll . IJ.Z36.1998l to order and use blood testing of the pBrtiC5, whicn (a "me Single most valuable teChnique avaHable to a coun in determining pa~ntage." .Ui at 253, 70T P,.2d at 182. As noted by the majoritY, my opinion in Brinklev advacate~> tha.t the better approach in ?3ternity matters \NOuld be to allow trial courts to determine pa1emity on a case~by-ca$G ba:;;i:;;, unburdened by the obligatory application of the presumption doctJtne, .!Q,. SUCll an approach permits a court to weigh the relevant evidence and circumstances at each particular situation, including blood test results. concerns as to the maintenance of an ~)(ist\ng family unit and the interests of the child, in orrlerto reach an equitable result llL at 254. 701 A,2d at 182. The benefits of this approach are exemplified by the circUlTISlances ot the instant case. Here, voluntarY test results representing virtually conclusive evidence of Appellant's paternity are available and undeniably probative of the question of who Amanda's biological father is_ Additionally, though Amanda's moth(jx and her husband r,emain married. I do not believe that theJr marital slatus should serve as a license to o:mtpletely disregard a biologirAJ Fath~r'$ in~rest in ha....ing a relationship with his child. MQreover, lOT medica) and orner reasons, It may very well be In me Dest interests of Amanda to know the identity at her biological father. It is simply unreasonable. in my view to precllJde the trial /"'.(lurt from considering the interest$ of those invdved and the evidence of the blood tests soleiy on thJ;.! basis of a presump1ion that is no longer reflectiVe of today's social reality For the:se reasons, I believe the tlisl coun propeny admitted IDe 01000 test results Into evidence and directed that a hearing be held on the issue of what is best tor Amanda. ThUs.. I would rAve~e the Superior Court and affirm the order of the trial court. 2 04/13/99 TX/RX NO.2562 13:05 P.012 . [J-23&-911] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT TIMOTHY STRAUSER. No. 44 M.D. App"a] Docket 1998 No. 45 M.D. App,,"1 Docket 1998 Appellant v. Appeal from the Order of Su oerior Courl entered 12/4197 at No 1010HBG96, reversing order entered 11/25/96 in the COUJ1 of Common Pleas ot Jumata County Civil Division, at No. 172-1996 APRIL R. STAHR, Appellee STEVEN STAHR, Intervenor ARGUED: November 17, 1998 DISSENTING OPINION MADAME JUSTICE NEWMAN DECIDED: MARCH 30. 1999 ror the reasons set forth belOW. ! respectfully dissent While ( agree that the ~presumption of paternity" attaches to the facts Qt this case. I di~agree that it is irrebutable. Rather, this presumption should be open to rebuttal by reliable blood test evidence. April and Sleven Stahr have been married since April 4, 1992 and they continue to be married, reside together and have never been separated. The couple has three children, aU born during the marriage. The custody dispute that underlies this suit involves the youngest of these three children. The record indicates that April Stahr. at one time, aCknowledged that Me Strauser. not her husbano, was this chil<l's father and allowed Mr. Strauser frequent visit$ with the child. April. the child a,nct Mr. SIrau59r even 04/13/99 13:05 TX/RX NO.2562 P.013 . !l1bmitted tu voluntary blood r~'5b which show.. 999",ft prOl:laOdity th~1 Mr. Slmusar i~ the chllCl's fat!'lAr Mr. Slrdu$er ti\p.d il complainl against April Slahr ~eekll19 pan:idl GlJE10dy or his daughter alter April beg~m to inWrfere Wllh M; V1s1talilll'l \'Vith the child April's hu!'\band, Steven, inlArvel1ed In the i:t';'1ton and rcque31~ Ih1lt 1M comolaim b8 di(,;lni~ beOilUS8 01 the presumption lllat h.. was the chHd's (either ! he lrlal I.;ourt o\lArn.lled Mr. $tal'1r's objoctions, Qdmhted U-te blood lest Gvloli'nr.:li';,nd ordered a h!4arino I., determine whal custody arrangefll~nt wa~ in the be::.:\ intf'Jresl$ of tile child. The Stahrs flied tho:!il appeal of this determination before Ihe trial court ciJuld "'old the ouotodv ~rin!)_ TIlt;:' emf!: issues invoJv~(i in this nDP9Qi are whether tfle lJial court crrea in retusing 10 disn'U3-G' Mr. StfituSAr3 complaint b"'~o:'ir1 on th€ "pl"98l.lmption 01 J.)Ate:rnit'1' in t"'....or of Mr. !:)tahr and WflA-ther the l:ourt erred in 3dmittmg gElne'jc blood test cvidency to rl":hut tl1at prli~III,-,lk,n. In QrdGr 10 dr,at~rrnine whether the prl~wnp'lcn of patemily dtto:lc.he3 to a partil'ld;;!( r:ase. we rTlU::ll fir<5t decide II the. GaSP- prooerty ac:lli.U1CE.-5 the purpO:3C Of 1M presllmpllOn. Brinklev"oJ. Kino. 549 Pa. 241, ?fiO-Ei1 701 A.2d 176. 105. 06 119971. Here. I agree that the prlolSlJmption of paternity applle1, oecal.i~O: th"l pur..oee 01 me prl:l-slHnption I~ indlcaWd il'l the facts before liS -. speCf1iCalty that me Stuhn: marm3.ge is cl..urcntty, and at ali relevant times h",. been. IniaC!. !!:L- (NQW/TI;)fl J cOlll,,;uHing and dissenting statemcntl(pUf"POse of presumption l~ liwjted tr: ~reCGfV:ition ollilA maJ't'lagcl. Ne)(t. WfJ mlJ~1 addres3 whethur IhA presumptiOn r1iidy bl": rebutted. !1- The MalOrity posits that in this C3Se., when:! lhe marriage i8 intuct, "public ::IO\iCY" NquirAs that me presulliplion be IITCOijtat:Jtl!:!_ I rIIs6g(CC. j(!s ge'l~rally not 'ror ttli:o Court to rMl<e 04/13/99 13:05 TX/RX NO.2562 P.014 . such a~liions 0' "publiC pollev" \jnl~s suCn poIiCV io;; dear ~~. ~.g., Muschaov v, UniOOd Sb:tte5. :;124 U.S. 49. 66 (194SWnublic policy Is to Vii' .:iscenta.1llcd by rel~rence to the law!:. i'lnd legal precedents and nof from general t:onsidf)rA.tion~ ot supposl:ilJ public inleri!!sf"); Mam!m v. Genae, 340 Pa. 3<2U. 32'1,11 A_2d 407,409 (1941)("i'n '_"'I' Judicia! F.ystem 'he. pQWQr \If .;Q\ln~ lo IQrmvlate pfOn01.IIlI:emenis at pL OUc policy IS sharply re~urtctcu. utherwlse ttw.y vvould beoon1~ Judici::J leQi,;li1ture5 rath9rthan illstrllrnentalltiCG for the intQrpretalioo of lne law."). Hare, the M"Jonty'G oonctusiull th~t MpubllC poliCy" r"'llIuires en JrrebulablE.! pfQSumpti,_"n Ill. {a'lcr ct Mr. Sw.hr \$ erroneous because- II is in direct conlliCl wilh 1I1A plairllCingU."loe of the Uniform Al;l 011 Blood Tests la D~lermiM PBtcmily (tht:' Act) 2:1 Pa.G R.A. ~ 511.14tC). Imll~ad, the Jegl31a.tum has ....'udifi<':d tho 'ouolie p<:Illoy" ur lt1is Commonwealth a(I0 cle<:irly and eXpresGly provld'?d IIMI a. court mny comp~i illlerttSted partie>;;: to eubmlt \<,,} ~\.l,-,n ~~:!Itl'l9. nnd \nl:l.t sum hlood te~ting oo.n rebut Ule pr~:<;umpbon of patcmlty. :H Pa_ C ~ A S 5104 i~) and (yf. Morec-ver, as 1 stat"d ill BmL~ We woohJ h8 both l10ive and r'emi:o;s to ;Jcrpetl.<atu 1118 strength Of thIs SBCtions5104 (ci and (g) statl:;'I'<; tollows: iel AIJthcnt'j tor t9i,'.'-\>" "'-1"1)1 1'tI&ttor S\J01&Ct to \tli.... section In whlCh pttterni,y, parentage or identity of ;t child is a relevant fat:t. the o::ourt. ~lpOI1 m; own iuilidtive or upon suggestlon m"rip. by or on oehalt of finy P""~on whOse plooo Is irwulvcd, ~.ily or. upon motion ul ><ny party to Ule action ma.:til at a limo so as not to iiftlay the proooodlngs unduly, shall oraar the motl1p.f, GhilO and all(~qQ r:;>t!lI,J1 to suhmit 10 blood teSts. If 'iM1Y piJrty refuGes to SUbmit 10 t:he ~,1.'i!o. trle court may r~ol\le the qu€l6'don of f-Io!Ilnmitv, porol'\t~ or ir..1;.fltity of a ohrld aQalnsl the party or cntorca its arder illhe rights of others afl(j the interest:; of lustlelO so re'l'Jire. (g~ Eff4K1 01'1 presumption oll~ilhr'Ii'W:Y .~lh€ presumption [Jf legitimavy at o:l ctlild l.;<)m during wedlock is overcunlP- if the t:ourt tincls thHllhe r.rmclugtons of aj! It1;.' eXp~rt5 as dj~c1os~ by tne A'J1dencc based upon I"~ t~ts show that the hllSbMd is nat 1he tattler ul the t:hild. 04/13/99 13:05 TX/RX NO.2562 P.015 . presumption and ignore the results of reliable Scientific lests; Pennsylvania is fast becoming One of only a minority of states that does not accept the results of blood tests that disprove the husb;and's patemity to rebut the prQsurnption Approximately two-thirds of the states currently have statutes permitting blood tests to be COnsidered in the aerermina/io/l of patMnlty_ HOMER H" CLARK, JR.. 1 THE LAW OF DOMESTIC HcU\TIONS IN THE UNITED STATES 340 (2d ed.19B7). We should join the majority of stat8s and accept Ihese reliable scientific tests to rebut the presumDtlon that a child born 10 11 married woman is. her husband's child_ Brlnklev v. Kina. 549 Pa. at 188, 701 A.2d at 264. Thus, for the- reasons I have set torth here and in Brin~, I believe that the Inal court did not err in refusing to dismiss Mr. Strauser's custody complaint wlely on the basis of the presumption of paternity and did not err in admitting the blood test eVidence. Accordingly, I would reverse the decision of the SuperiO" Court Clnd reinstate the decision of the triaJ court so that the court can conduct a hearing to determine the best interests OfTl1e Child involved. Mr. Justice Castille joins this dissenting opinion. 4 04/13/99 13:05 TX/RX NO.2562 P.016 .