Commonwealth ex rel. O'Brien v. O'Brien , 182 Pa. Super. 584 ( 1956 )

Opinion by

Wright, J.,

In an action for the support of a minor child, born during wedlock, does the defendant have the right to require blood grouping tests under the provisions of the Act of May 24, 1951 P. L. 402, 28 PS 306? This statute reads as follows: “In any proceeding to establish paternity, the court, on motion of the defendant, shall order the mother, her child and the defendant to submit to one or more blood grouping tests by a duly qualified physician to determine whether or not the defendant can be excluded as being the father of the child, and the results of such tests may be received in evidence but only in cases where definite exclusion of the defendant is established”.

' The parties were married on October 24, 1938, and were divorced February 27, 1950. Three children were born, one of whom died immediately after birth in 1943. The other two children are Barbara, born June 25,1939, and Richard, born February 11, 1947. While the husband left the common habitation in 1942, there was no evidence of non access. “He came to the house any time he wanted to”. On May 23,1946, an order in the amount of $15.00 per week was entered for Barbara’s support. On March 6, 1950, by agreement of the parties, this order was increased to $25.00 per week. On October 28, 1954, a petition Avas filed to amend the order so as to include Richard as Avell as Barbara. The court beloAV refused to order blood grouping tests and amended the order to $30.00 per Aveek for the two children. The order Avill be affirmed.

Appellant contends “that the only important word that requires definition in order to determine the scope of the Act is ‘proceeding’ ”. This contention overlooks the significant fact that the word “proceeding” is limited and modified by the Avords “to establish paternity”. The order of support in the instant case Avas • entered under the provisions of Section 733 of the Act of June 24, 1939, P. L. 872, 18 PS 4733. We have said that this act is “a quasi criminal statute”, and that its purpose is protection rather than punishment: Commonwealth v. Widmeyer, 149 Pa. Superior Ct. 91, 26 A. 2d 125. Our only prior consideration of the Act of 1951 was in Commonwealth v. Dean, 172 Pa. Superior Ct. 415, 94 A. 2d 59, which is not here controlling. That case involved a prosecution for fornication and bastardy, clearly a proceeding to establish paternity. We held that a petition for blood grouping tests, presented 38 days after final judgment, came too late. In the only reported lower court case dealing with the precise question, President Judge Knight of the Montgomery County Court ruled that an action for support under Section 733 of the Act of 1939 was not a proceeding to establish paternity. See Commonwealth v. Heydt, 3 D. & C. 2d 129. This was the position taken by Judge Spaulding in the case at bar, and we think it is the correct view.

The birth certificate offered in evidence in the instant case shows that appellant was Richard’s father. See the Act of June 29, 1953, P. L. 304, §810, 35 PS 450.810.¹ By this recent statute, the legislature has reaffirmed the long established public policy which supports the legitimacy of children born during wedlock. The presumption of legitimacy is one of the strongest known to the law. It stands until met with evidence which makes it clearly appear that the husband cannot be the father of the child: Commonwealth ex rel. Moska v. Moska, 107 Pa. Superior Ct. 72, 162 A. 343. So strongly does the policy of the law favor legitimacy that neither husband nor wife may testify as to non access: Commonwealth v. Oldham, 178 Pa. Superior Ct. 354, 115 A. 2d 895.

Appellant argues that the wife did not mention Richard when requesting alimony pendente lite in the divorce proceeding, or when the order for Barbara’s support was increased, and that the wife did not request support for Richard for over seven years. These circumstances do not constitute the type of evidence required to rebut the presumption of legitimacy. A mother cannot do impliedly that which she cannot agree to do specifically, namely, by her own agreement limit the right of the child to support: Commonwealth v. Beavin, 168 Pa. Superior Ct. 73, 76 A. 2d 653. The delay in her demand does not relieve the husband of his responsibility: Commonwealth ex rel. Rovner v. Rovner, 177 Pa. Superior Ct. 122, 111 A. 2d 160.

We do not find in the Act of 1951 a clear and express mandate to depart from a rule which has been so firmly established and so long followed. Nor do we believe that it was the intention of the legislature to remove the protection thrown around a child born during the marriage of his mother. Years ago an act was passed² which provided that “no interest or policy of the law shall exclude a party or person from being a witness in any civil proceeding”. The Supreme Court said: “The language of that act at first blush might seem to include a case” involving the right of parents to bastardize their child, born in wedlock. However, it held that such a result was not in the legislative mind, and that the act “was not intended to abolish a valuable rule of law founded in good morals and public decency”: Tioga County v. South Creek Township, 75 Pa. 433. Just recently, in an opinion' by Judge Woodside, we. rejected.a contention.in' a., support action that the rule was changed because of the provisions of Section 18 of the Act of May 10, 1951, R L. 279^ 62 PS §2043.24, which states that “Husband and wife áre competent witnesses ... to any relevant matter, including marriage and parentage”: Commonwealth ex rel. Ranjo v. Ranjo, 178 Pa. Superior Ct. 6, 112 A. 2d 442.

It has been suggested that actions for support can in some manner be divided into two classes, one wherein the child was conceived while the mother and her husband were living together, the other wherein the child was conceived while the mother and her husband were living apart, and that a case of the second type is a proceeding to establish paternity. Nothing in prior decisions, or in the Act of 1951 itself, furnishes any basis whatever for such a distinction.

To uphold appellant’s contention would mean that paternity could be brought into issue in every support case. In view of the bitterness which frequently exists between husband and wife at such a time, there is little doubt that paternity would often be questioned for the sole purpose of embarrassment and delay. To order a blood grouping test in the case at bar would do more than establish a new rule of evidence. It would create a whole new philosophy concerning the presumption of legitimacy. This we think the legislature did not intend to do by the Act of 1951.

Order affirmed.

1 “Any record or duly certified copy . . . shall constitute prima, facie evidence of its contents, except that in any proceeding in.which, paternity is controverted and which affects the interests of an alleged father or his successors in interest no record or part thereof shall constitute prima facie evidence of paternity unless the alleged father is the husband of the mother of the child” (italics supplied).

2 Act of April 15, 1869, P. L. 30.