J-A31016-14




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.

CONCURRING MEMORANDUM BY BOWES, J.:                  FILED JANUARY 21, 2015

         I concur with the learned majority’s disposition and join the entirety of

its cogent and well-reasoned statement of rationale. I write separately only

to emphasize my perspective that scientific advancements and the evolving

perception of family have relieved the need for our continued mechanical

application of the presumption of paternity doctrine, which I believe is

outdated.

         The only surviving purpose of the presumption of paternity, which was

formally referred to as the presumption of legitimacy, is to protect the

sanctity of an intact family unit. As former Chief Justice Flaherty reiterated

in the opinion announcing the judgment of the court in Brinkley v. King,

701 A.2d 176, 180 (Pa. 1997) (plurality) (Nigro, J., and Newman, J.,
J-A31016-14



concurring and dissenting separately), “[t]he public policy in support of the

presumption of paternity is the concern that marriages which function as

family units should not be destroyed by disputes over the parentage of

children conceived or born during the marriage. Third parties should not be

allowed to attack the integrity of a functioning marital unit, and members of

that unit should not be allowed to deny their identities as parents.”    The

High Court restated these policy concerns two years later in Strauser v.

Stahr, 726 A.2d 1052, 1054 (Pa. 1999) (Nigro, J., and Newman, J.,

dissenting separately), in holding that “where the family (mother, child, and

husband/presumptive father) remains intact at the time that the husband's

paternity is challenged, the presumption is irrebuttable.”   See also id. at

1055-1056.

       Herein, the majority concludes, and I am constrained to agree, that

our Supreme Court’s holding in Strauser, supra and this Court’s rationale

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

third party, from invoking the Uniform Act on Blood Tests to Determine

Paternity, 23 Pa.C.S. § 5104, to challenge the presumption of paternity in

this case.      Thus, although I find intellectually compelling Appellant’s

assertion that § 5104(c) and (g)1 relaxed the conventional presumption of

____________________________________________


1
  Section 5104(c) empowers courts to submit parties to blood testing in
order to determine paternity, parentage, or identity of a child. It provides,
(Footnote Continued Next Page)


                                           -2-
J-A31016-14



paternity, this argument cannot overcome the weight of our jurisprudence

that interprets the statute in a manner that limits its application to scenarios

where: (1) the family is no longer intact when paternity is challenged; (2)

the husband fails to accept parental responsibility for the child; or (3) clear

and convincing evidence establishes impotency, sterility, or non-access when

conception occurred. See Brinkley, supra at 179. Indeed, it remains well

ensconced that, “The presumption of paternity is unrebuttable when, at the

time the husband's paternity is challenged, mother, her husband, and the

child comprise an intact family wherein husband has assumed parental

responsibilities for the child.”        Vargo v. Schwatrz, 940 A.2d 459, 463

                       _______________________
(Footnote Continued)


      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.

23 Pa.C.S. § 5104(c).

       Section 5104(g) addresses the effect of scientific evidence on the
presumption of paternity as follows: “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.”



                                            -3-
J-A31016-14



(Pa.Super. 2007).       See also K.E.M. v. P.C.S., 38 A.3d 798, 810 n.8 (Pa.

2012) (recognizing that legal fictions regarding irrelevancy of paternity

testing retains “their greatest force where there is truly an intact family

attempting to defend itself against third-party intervention.”).

       I acknowledge that we are bound by the entrenched case law

regarding the broad application of the presumption of paternity, and the

systematic preclusion of third-party challengers to paternity of a child in an

intact family. I believe that the General Assembly or our High Court should

revisit this legal fiction in light of the advancements in testing and our

contemporary perspective of family and fashion a flexible approach for

ordering paternity tests that affords trial courts the discretion to weigh

scientific evidence of paternity in line with the express terms of § 5104(c)

and (g).

       Revealingly, the respective dissenting opinions that Justice Nigro and

Justice Newman authored fifteen to seventeen years ago in both Brinkley,

supra and Strauser, supra continue to resonate.2         As the cruces of the

____________________________________________


2
  Justice Nigro and Justice Newman concurred with the portion of the lead
opinion in Brinkley that found that the presumption of paternity did not
apply in that case because the marriage was no longer intact, but both
disagreed with the opinion’s position that the presumption was unrebuttable
when a third party asserts his paternity to a child born to an intact marriage.
In Strauser v. Stahr, 726 A.2d 1052, (Pa. 1999), both justices categorically
rejected the majority’s mechanical application of the doctrine to form an
unrebuttable presumption of husband’s paternity, absence a showing of
(Footnote Continued Next Page)


                                           -4-
J-A31016-14



justices’ estimations in these seminal cases remain relevant, I believe they

warrant further discussion.

      In Brinkley, Justice Nigro stressed that the presumption of paternity

should not be applied mechanically in every case and noted that, “In light of

the changed, and increasingly fluid, nature of the family, and the increased

rates of divorce and separation, these legal fictions have become less

reflective of social reality. They are now more problematic than useful, and

more likely to lead to unfair results.”           Brinkley, supra at 182 (Nigro, J.

concurring and dissenting).          The learned Justice Nigro opined, “when the

reason for a law ceases, the law should also cease . . . I believe that the

time has come to take this principle to its logical conclusion in the law of

paternity.” Id. Instead of continuing to apply the presumption of paternity

as a robotic bar to third-party challengers, Justice Nigro advocated an

approach that permitted trial courts to utilize a range of tools, including

scientific evidence, to determine paternity on a case-by-case basis.            He

explained the obvious benefit of this approach would be allowing the trial

courts to decide whether to employ scientific evidence as conclusive or

simply consider that evidence along with other factors, including the existing



                       _______________________
(Footnote Continued)

physical impossibility, when the family remained intact. Then-Justice and
now former Chief Justice Castille joined Justice Newman in both cases.



                                            -5-
J-A31016-14



family dynamic, to reach an equitable result.          Id. at 182, 183.        He

continued,

       Given the realities of marriage, separation, and divorce today, I
       believe a flexible, case-by-case approach to paternity issues,
       acknowledging and benefitting from the relative certainty of
       blood testing, is simply more preferable than a system
       characterized by the strict application of overarching and
       outdated legal fictions that can lead, as the Majority admits, to
       unfair results.

Id. at 183. In sum, Justice Nigro opined, “it is my belief that the clarity and

finality provided by a case-by-case approach involving blood testing . . .

make such an approach more desirable than the current system.”             Id. at

184.

       Subsequently, in his dissenting opinion in Strauser, supra, Justice

Nigro reiterated his preference for a flexible methodology to paternity

testing.   He observed, “Such an approach permits a court to weigh the

relevant evidence and circumstances of each particular situation, including

blood test results, concerns as to the maintenance of an existing family unit

and the interests of the child, in order to reach an equitable result.” Id. at

1057 (Nigro, J. dissenting).

       Justice Newman shared Justice Nigro’s distaste for the mechanical

application of the presumption of paternity.         Her dissenting opinion in

Brinkley     observed   that,   even   then,   the   majority   of   jurisdictions

(approximately two thirds) permitted trial courts to use blood tests to rebut

the presumption of paternity.     See Brinkley, supra at 187 (Newman, J.

                                       -6-
J-A31016-14



concurring and dissenting). She also expressed her position that a party in a

paternity case should be free to employ scientific evidence pursuant to §

5104, regardless of the status of the family unit. Id. at 186 n.3.

      Justice Newman recognized that the presumption of paternity arose, in

part, to prevent children born to an intact family from receiving the legal

designation of bastard.   Bastard children were subject to the unfair legal

ramifications of illegitimacy, such as the inability to inherit from the birth

father or sue for child support.     They were also forced to endure the

concomitant social stigma associated with the designation generally.

Accordingly, the application of the presumption of paternity was a form of

protection from the unfair classification. Id. at 182 n.3. She reasoned that

since contemporary laws abolished the undignified designation and its

significant legal ramifications, the protections previously afforded by the

doctrine in that regard are unnecessary. Id.

      Thereafter, Justice Newman stressed that the only remaining purpose

of the doctrine, protecting the sanctity of marriage, was outmoded.        She

opined,

            The goal of protecting marital integrity is also futile in a
      society where legal marital status does not always translate into
      a loving, intimate, monogamous relationship. The presumption
      that a child born to a married woman is a child of the marriage is
      dubious at best and in many cases, such as here, is absurd. We
      are living a fable, both morally and legally, if we think that a
      family is typified by “Father Knows Best,” where parents and
      children love and respect each other and where husband and
      wife are faithful to each other and adultery is merely a figment

                                    -7-
J-A31016-14



      of one's imagination. Thus, the presumption that a child born
      during coverture is a child of the marriage has lost its place in
      modern society, especially considering the scientific testing
      available both to prove and to disprove paternity.

Id. (footnotes omitted).

      Justice Newman also stressed that a child would benefit from

confirmation of his or her birth father. She identified a litany of advantages,

including the discovery of potential genetic conditions, satisfaction of a

possible desire to know one’s birthparents, and the allocation of economic

responsibility for the child. Id. at 186. Moreover, since denying a putative

father’s right to challenge the presumptive father’s paternity effectively

terminates his parental rights without any legal recourse, the use of

scientific evidence to determine paternity preserves the fundamental right of

a father to make decisions regarding the care, custody, and control of his

child. Id. at 186, 187.

      Again, in Strauser, Madame Justice Newman reaffirmed her disfavor

of the mechanical application of the presumption of paternity and the

prevailing view in this jurisdiction that the presumption cannot be rebutted

with genetic testing pursuant to § 5104(c) and (g) when the family is intact.

She added that the argument that public policy, i.e., the sanctity of the

intact marriage, favors continuing the legal fiction of an unrebuttable

presumption of paternity is misplaced because, by promulgating § 5104(c)

and (g), the legislature addressed the issue squarely, “codified the “public



                                     -8-
J-A31016-14



policy” of this Commonwealth and clearly and expressly provided that a

court may compel interested parties to submit to blood testing, and that

such blood testing can rebut the presumption of paternity.” Strauser, supra

at 1058.

       Without exception, I agree with the sentiments of Justice Nigro and

Justice Newman on this issue.     The flaws associated with the emotionless

application of the presumption of paternity are particularly evident in this

case where Mother’s duplicity, dishonesty, and deceit prejudiced both

Appellant and the presumptive father. Mother lied to her husband about the

extent of her relationship with Appellant, and then deceived Appellant

regarding, inter alia, the state of her marriage when the child was

conceived, her intention to terminate her marriage, and the child’s paternity.

Prior to the pregnancy, Appellant accompanied Mother to a procedure to

have   her   IUD   removed,   apparently   in    anticipation   of   the   resultant

pregnancy, and Appellant was excited to be an expectant father.                N.T.,

3/26/14, at 191, 192-193. He and Mother discussed moving closer together

and perhaps eventually an engagement.           Id.   Appellant attended at least

one of Mother’s post-fertilization obstetrician examinations and was present

for the initial ultrasound and pregnancy confirmation screen.          Id. at 192,

193.    Indeed, if a factual scenario warranted a relaxed view of the

presumption of paternity that permitted the consideration of scientific

evidence and the child’s best interest in order to reach an equitable result, it

                                     -9-
J-A31016-14



is here.        The record bears out that both Appellant and the presumptive

father maintained an intimate relationship with Mother when the child was

conceived and that prior to terminating any association with Appellant,

Mother held the newborn out as Appellant’s child to Appellant’s family.

      However, rather than permitting the trial court to make a fully

informed decision grounded on O.G.’s best interest, our jurisprudence

required the trial court to ignore the reality of the instant situation and

perfunctorily impose the presumption of paternity to preclude Appellant from

asserting his parentage.      Consequently, I join my esteemed colleagues in

affirming the trial court’s decision to sustain Mother’s preliminary objections

and dismiss Appellant’s custody complaint.

      Nevertheless, in alignment with the positions espoused by former

Justices Nigro and Newman in Brinkley and Strauser, I emphasize that the

time has arrived for this jurisdiction to revisit the “naive and remiss”

perpetuation of this legal fiction over conclusive scientific evidence.        See

Brinkley, supra 188 (Newman, J. concurring and dissenting) and Strauser,

supra      at    1058   (Newman,   J.,   dissenting).   Thus,   mindful   of   the

advancements in paternity testing, the current flexible notion of what

constitutes a family, and the accessibility, affordability and reliability of DNA

tests, I believe that the arguments that the distinguished justices articulated

in Brinkley and Strauser reverberate even greater today.            Accordingly,

while I join the majority memorandum, I favor an approach that affords trial

                                         - 10 -
J-A31016-14



courts the discretion to consider the conclusive results of paternity testing

pursuant to § 5104(c) and (g), notwithstanding the existence of an intact

marriage between the birth mother and the presumptive father.




                                   - 11 -
