J-A31016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.J.B.                                             IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellant

                      v.

T.G. AND W.G.

                           Appellee                    No. 868 MDA 2014


                  Appeal from the Order Entered April 21, 2014
               In the Court of Common Pleas of Schuylkill County
                      Civil Division at No(s): S-1628-2013


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                              FILED JANUARY 21, 2015

         B.J.B. (Appellant) appeals from the order entered April 21, 2014, in

the Court of Common Pleas of Schuylkill County, which sustained the

preliminary objections filed by T.G. (Mother) and W.G. (Husband), and

dismissed Appellant’s custody complaint. We affirm.

         The instant matter relates to the female child, O.G. (Child), born in

January of 2013. At the time Child was conceived, Mother was married to

Husband. However, Mother was also engaging in an extramarital affair with

Appellant.    Mother and Husband had two children prior to Child, and they

continue to reside together as an intact family.

         On August 13, 2013, Appellant filed a complaint for custody with

respect to Child, in which he averred that he is Child’s biological father. On

October 28, 2013, Appellant filed a complaint to establish paternity and for
J-A31016-14


genetic testing.     The trial court entered an order on November 8, 2013,

indicating, inter alia, that Appellant must file an amended complaint

including Husband as a party to the custody action. The court also stated in

the November 8, 2013 Order that it would not consider Appellant’s complaint

to establish paternity, pursuant to Pa.R.C.P. 1930.6(a), which provides that

an action to establish paternity “shall not be permitted . . . if a support or

custody action to which the putative father is a party is pending.” Pa.R.C.P.

1930.6(a).

        Appellant filed an amended complaint for custody on December 18,

2013.      On January 23, 2014, Mother and Husband filed preliminary

objections wherein they alleged that Appellant lacked standing to pursue his

custody action because Appellant was not the biological or legal father of

Child and had never stood in loco parentis with respect to Child.1 Appellant

filed an answer to the preliminary objections of Mother and Husband on

February 19, 2014. On February 25, 2014, Appellant filed an Application for

Blood Test to Determine Paternity, which the court denied by order entered

on March 10, 2014.

        A hearing regarding the preliminary objections of Mother and Husband

was held on March 26, 2014. On April 21, 2014, the trial court entered an

____________________________________________


1
  Mother initially filed preliminary objections on January 8, 2014, which the
trial court had dismissed without prejudice for procedural reasons.




                                           -2-
J-A31016-14


order sustaining the preliminary objections and dismissing Appellant’s

complaint.    In the opinion accompanying the court’s order, the court

concluded that Appellant lacked standing to pursue custody of Child because

he had failed to overcome the presumption of paternity. Trial Court Opinion,

4/21/2014, at 9. Specifically, the court found that Child was conceived and

born during the marriage of Mother and Husband, that they continue to live

together as an intact family unit, and that Husband identifies himself as

Child’s father and performs parental responsibilities for her.     Id. at 7-9.

Appellant timely filed a notice of appeal, along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

     Appellant now raises the following issues for our review.

     [1.] The Uniform Act on Blood Tests to determine paternity was
     not followed by the trial court and is not being followed by the
     appellate courts of Pennsylvania in direct contradiction to the Act
     itself which specifically addresses its effect of presumption of
     legitimacy. It does so by providing that “the presumption of
     legitimacy of a child born during wedlock is overcome if the court
     finds that the conclusions of all of the experts as disclosed by the
     evidence based upon the tests show that the husband is not the
     father of the child”. Should the courts expand the factors
     available to rebut the presumption, particularly because of the
     accuracy and reliability of blood testing to determine paternity?

     [2.] Is the presumption that a child born to a married woman is
     the child of the woman’s husband that can only be rebutted by
     proof either that the husband was physically incapable of
     fathering a child or that he did not have access to his wife during
     the period of conception outdated?

     [3.] Is it time to change the policy and the doctrine that the
     presumption that a child born to a married woman is a child of
     the marriage and when the presumption does apply, should
     blood tests be ordered to rebut the presumption of paternity?

                                    -3-
J-A31016-14



       [4.] Is it time to change the legal doctrine that the presumption
       of paternity is irrebuttable where the wife, husband, and child
       live together in an intact family and husband assumes parental
       responsibility for the child?

Appellant’s Brief at 4-7 (bolding and unnecessary capitalization omitted).2

       “‘[T]his   Court    will   reverse      the   trial   court’s   decision   regarding

preliminary objections only where there has been an error of law or an

abuse of discretion.’” Gaboury v. Gaboury, 988 A.2d 672, 675 (Pa. Super.

2009), appeal denied, 996 A.2d 492 (Pa. 2010) (quoting Rambo v. Greene,

906 A.2d 1232, 1235 (Pa. Super. 2006)).                       “[T]he interpretation and

application of a statute is a question of law that compels plenary review to

determine whether the court committed an error of law.                        As with all

questions of law, the appellate standard of review is de novo and the

appellate scope of review is plenary.” C.B. v. J.B., 65 A.3d 946, 951 (Pa.

Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013) (quoting In re

Adoption of J.A.S., 939 A.2d 403, 405 (Pa. Super. 2007), appeal denied,

954 A.2d 577 (Pa. 2008)).
     Instantly, Appellant “acknowledges that the [trial c]ourt properly

applied the law in accord with current appellate decisions concerning

presumption of paternity. . . .” Appellant’s Brief at 20. However, Appellant

argues on appeal that the Uniform Act on Blood Tests to Determine

Paternity, 23 Pa.C.S.A. § 5104, should permit him to obtain a blood test in
____________________________________________


2
  In his brief, Appellant addresses his second, third, and fourth issues in a
single argument section.



                                            -4-
J-A31016-14


order to rebut the presumption.         Appellant also contends that the

presumption is outdated, and should be abandoned.

     This Court has explained the presumption of paternity as follows.

           The presumption of paternity, i.e., the presumption that a
     child conceived or born during a marriage is a child of the
     marriage, has been described by our Supreme Court as “one of
     the strongest presumptions known to the law.” [Strauser v.
     Stahr, 556 Pa. 83, 87, 726 A.2d 1052, 1053-54 (1999).] The
     policy underlying the presumption is the preservation of
     marriages. Fish v. Behers, 559 Pa. 523, 528, 741 A.2d 721,
     723 (1999). Accordingly, our Supreme Court has held that the
     presumption of paternity applies only where the underlying
     policy to preserve marriages would be advanced by application
     of the presumption. Id.; Brinkley v. King, 549 Pa. 241, 250-
     51, 701 A.2d 176, 181 (1997) (plurality opinion). When there is
     no longer an intact family or a marriage to preserve, then the
     presumption of paternity is not applicable. Fish, supra at 528,
     741 A.2d at 723; Brinkley, supra at 250-51, 701 A.2d at 181;
     Barr v. Bartolo, 927 A.2d 635, 643 (Pa. Super. 2007)
     (declining to apply the presumption of paternity in a case where,
     although the mother and her husband remained married and had
     not sought a divorce at the time of the paternity hearing, they
     had been separated for several years and there was no intact
     family to preserve); [Doran v. Doran, 820 A.2d 1279, 1283
     (Pa. Super. 2003)] (concluding that the presumption of paternity
     did not apply to a case in which the mother and her husband had
     separated and a divorce action was pending prior to the support
     hearing); Sekol v. Delsantro, 763 A.2d 405, 409 (Pa. Super.
     2000) (same); cf. Strauser, supra at 91, 726 A.2d at 1055-56
     (concluding that the presumption of paternity did apply in a case
     where the mother and her husband had never separated and,
     despite their marital difficulties and the mother’s infidelity, had
     chosen to preserve their marriage); E.W. v. T.S., 916 A.2d
     1197, 1204 (Pa. Super. 2007) (affirming the trial court's
     application of the presumption of paternity in a case where the
     mother and her husband had not lived apart at any time after
     their marriage and had never filed a divorce complaint, and the
     husband had fulfilled the duties of a father in the family).

            The presumption of paternity is unrebuttable when, at the
     time   the husband’s paternity is challenged, mother, her

                                    -5-
J-A31016-14


     husband, and the child comprise an intact family wherein the
     husband has assumed parental responsibilities for the child. Id.
     at 1201. Under other circumstances, the presumption may be
     overcome by clear and convincing evidence that either of the
     following circumstances was true at the time of conception: the
     presumptive father, i.e., the husband, was physically incapable
     of procreation because of impotency or sterility, or the
     presumptive father had no access to his wife, i.e., the spouses
     were physically separated and thus were unable to have had
     sexual relations. Strauser, supra at 88, 726 A.2d at 1054;
     Brinkley, supra at 248, 701 A.2d at 179; Barnard v.
     Anderson, 767 A.2d 592, 594 (Pa. Super. 2001).                  In
     Pennsylvania, impotency/sterility and non-access constitute the
     only ways to rebut the presumption of paternity. Brinkley,
     supra at 248, 701 A.2d at 179; Barnard, supra at 594; see
     also Brinkley, supra at 260-61, 701 A.2d at 185-86 (Newman,
     J., dissenting). Notably, blood tests cannot be offered to rebut
     the presumption of paternity. Jones v. Trojak, 535 Pa. 95,
     105, 634 A.2d 201, 206 (1993) ( “A court may order blood tests
     to determine paternity only when the presumption of paternity
     has been overcome ... by proof of facts establishing non-access
     or impotency.”); E.W., supra at 1202-03, 1204; Barnard,
     supra at 594 (quoting Strauser, supra at 88, 726 A.2d at
     1054); see also Brinkley, supra at 261-65, 701 A.2d at 186-
     88 (Newman, J., dissenting) (“Pennsylvania is fast becoming one
     of only a minority of states that does not accept the results of
     blood tests that disprove the husband’s paternity to rebut the
     presumption [of paternity].”); Strauser, supra at 93, 726 A.2d
     at 1056 (Nigro, J., dissenting) (observing that “the strict
     application of the presumption [of paternity] doctrine has only
     acted as an obstacle to the discretion of the trial court to order
     and use blood testing of the parties” to determine paternity). A
     number of dissenting voices notwithstanding, it remains the law
     of this Commonwealth that “[a] court may order blood tests to
     determine paternity only when the presumption of paternity has
     been overcome” by proof of either impotency/sterility or non-
     access. Brinkley, supra at 247, 701 A.2d at 179 (citation
     omitted).

Vargo v. Schwartz, 940 A.2d 459, 463-64 (Pa. Super. 2007) (footnote

omitted).

     Section 5104 provides as follows, in pertinent part.


                                   -6-
J-A31016-14


      (a) Short title of section.--This section shall be known and
     may be cited as the Uniform Act on Blood Tests to Determine
     Paternity.

     (b) Scope of section.--

           (1) Civil matters.--This section shall apply to all
           civil matters.

                                    ***

     (c) Authority for test.--In any matter subject to this section 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 the tests, the court may resolve the question of
     paternity, parentage or identity of a child against the party or
     enforce its order if the rights of others and the interests of
     justice so require.

                                    ***

     (f) Effect of test results.--If the court finds that the
     conclusions of all the experts as disclosed by the evidence based
     upon the tests are that the alleged father is not the father of the
     child, the question of paternity, parentage or identity of a child
     shall be resolved accordingly. If the experts disagree in their
     findings or conclusions, the question shall be submitted upon all
     the evidence.

     (g) Effect on presumption of legitimacy.--The presumption
     of legitimacy of a child born during wedlock is overcome if the
     court finds that the conclusions of all the experts as disclosed by
     the evidence based upon the tests show that the husband is not
     the father of the child.

23 Pa.C.S.A. § 5104.

     The view that Section 5104 permits a party to obtain a blood test in

order to rebut the presumption of paternity has been expressly rejected by a


                                    -7-
J-A31016-14



majority of our Supreme Court. See Strauser, 726 A.2d at 1056 n.2. In

Strauser, Justice Newman wrote a dissenting opinion explaining her view

that, pursuant to Section 5104, “a court may compel interested parties to

submit to blood testing, and that such blood testing can rebut the

presumption of paternity.”    Id. at 1058 (Newman, J., Dissenting). The

majority opinion responded as follows.

     In her dissenting opinion, Madame Justice Newman discerns a
     conflict between this holding and the Uniform Act on Blood Tests
     to Determine Paternity, now codified at 23 Pa.C.S. § 5104, which
     she views as codifying the public policy that blood testing may
     always be employed to rebut the presumption of paternity. Such
     position, however, has 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. § 5104(c) ] does not give the
     putative father the right to compel a presumptive father
     (husband) to submit to blood tests”); see also John M., 571
     A.2d at 1389 (Nix, C.J., concurring, and joined by all
     others)(declaring that “a third party who stands outside the
     marital relationship should not be allowed, for any purpose, to
     challenge the husband's claim of parentage”).

Id. at 1056 n.2.

     More recently, in E.W. v. T.S., 916 A.2d 1197 (Pa. Super. 2007), a

panel of this Court again rejected the contention that Section 5104 allows a

party to obtain a paternity test in order to overcome the presumption of

paternity. In that case, the appellant, E.W., argued that “that the courts of

this Commonwealth have ignored the language of [Section 5104] and as a

result have denied E.W.’s statutory right to have a blood test performed so

that he can overcome the presumption of paternity.”        Id. at 1202.   In




                                    -8-
J-A31016-14



response, this Court quoted the language from Strauser, supra, and

explained that,

             Despite E.W.'s discussion regarding the “clear and
      unambiguous” language of [Section 5104], which he contends
      should not be ignored by the courts, E.W. has not provided any
      citation to a case that has allowed a third party seeking to rebut
      the presumption to compel the presumed father to submit to a
      blood test. Nor has this Court located any case law that would
      support E.W.'s position. Therefore, we must conclude that this
      issue is without merit.

Id. at 1203.

      Thus, we hold that the trial court correctly concluded that Appellant

could not obtain a blood test in order to rebut the presumption of paternity.

While Appellant argues that the law with respect to the presumption should

be changed, Appellant’s request is beyond the power of this panel.         It is

well-settled that “this Court is obligated to follow the precedent set down by

our Supreme Court. It is not the prerogative of an intermediate appellate

court to enunciate new precepts of law or to expand existing legal doctrines.

Such is a province reserved to the Supreme Court.” Bell v. Willis, 80 A.3d

476, 479 (Pa. Super. 2013), appeal denied, 89 A.3d 1282 (Pa. 2014)

(quoting Moses v. T.N.T. Red Star Express, 725 A.2d 792, 801 (Pa.

Super. 1999), appeal denied, 739 A.2d 1058 (Pa. 1999)). Moreover, we are

bound by the prior decisions of this Court. Commonwealth v. Pepe, 897

A.2d 463, 465 (Pa. Super. 2006) (“It is beyond the power of a Superior

Court panel to overrule a prior decision of the Superior Court, except in




                                    -9-
J-A31016-14



circumstances where intervening authority by our Supreme Court calls into

question a previous decision of this Court.”) (citations omitted).

      Accordingly, we conclude that the trial court did not err by sustaining

the   preliminary   objections   of   Mother   and   Husband,   and   dismissing

Appellant’s complaint. We therefore affirm the order of the trial court.

      Order affirmed.

      Judge Stabile joins this memorandum.

      Judge Bowes files a concurring memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2015




                                      - 10 -
