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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.C.R.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                  Appellee

                        v.

J.D.S.,

                  Appellant                    No. 3659 EDA 2015


             Appeal from the Order Entered October 23, 2015,
   in the Court of Common Pleas of Lehigh County, Domestic Relations at
                No(s): DR-15-00779, PSCES No. 299115305

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JUNE 27, 2016

      Appellant, J.D.S. (“Father”), appeals from the order entered on

October 23, 2015, in the Lehigh County Court of Common Pleas by the

Honorable President Judge Edward D. Reibman, which dismissed his petition

for rescission of acknowledgement of paternity (“AOP”). We affirm.

      O.S. (“Child”) was born in May of 2013. Father and R.C.R. (“Mother”)

were never married. Following Child’s birth, Father signed an AOP. On May

21, 2015, Mother filed a complaint for support. On June 19, 2015, Father

filed a petition for rescission of AOP and alleged that, although he signed an

acknowledgment of paternity for Child, the acknowledgment was the result

of fraud, duress or material mistake of fact pursuant to 23 Pa.C.S.A. § 5103

(g)(2). On August 19, 2015, a hearing was held on that petition at which

* Former Justice specially assigned to the Superior Court.
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time Mother and Father testified.      On October 23, 2015, the trial court

denied Father’s petition to rescind the acknowledgement of paternity.

      On November 23, 2015, Father filed a notice of appeal, and on

December 2, 2015, the trial court directed him to file a concise statement of

errors complained of on appeal.        Father filed a concise statement on

December 14, 2015.1

      Father raises the following issues for this Court’s review:

      1. Whether the trial court erred and abused its direction in
         failing to give proper weight to [Father]’s testimony that he
         believed he was the biological father during the time he
         signed the [AOP] form?

      2. Whether the trial court erred in finding that there was no
         fraud on the part of [Mother] when [Mother] admitted she
         had concealed her affair until the end of her pregnancy and
         led [Father] to believe he was the biological father of [C]hild?

      3. Whether the trial court erred in applying the doctrine of
         [p]aternity by [e]stoppel to dismiss [Father]’s [p]etition to
         rescind paternity because such paternity would not be in the
         best interests of [C]hild?

Father’s Brief, at 2.



1
   In a children’s fast track appeal, the appellant must file a concise
statement of errors complained of on appeal contemporaneously with his
notice of appeal. Pa.R.A.P. 1925(a)(2)(i). This requirement, however, is
procedural rather than jurisdictional; a failure to comply is handled on a
case-by-case basis. In re K.T.E.L., 983 A.2d 745, 748 (Pa.Super. 2009).
Mother has not objected or otherwise claimed she was prejudiced by Father’s
failure to file his Pa.R.A.P. 1925(b) statement concomitantly with his notice
of appeal, and the record reflects that Father has complied with all other
procedural requirements pertaining to his appeal. As such, we will not find
Father’s issues waived due to the delayed filing of his concise statement of
errors complained on appeal. Id.
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     We employ the following standard of review concerning paternity

questions:

      In matters involving support, a reviewing court will not disturb
      an order of the trial court unless there has been an abuse of
      discretion. An abuse of discretion exists if the trial court has
      overridden or misapplied the law, or if there is insufficient
      evidence to sustain the order. Moreover, resolution of factual
      issues is for the trial court, and a reviewing court will not disturb
      the trial court's findings if they are supported by competent
      evidence. It is not enough that we, if sitting as a trial court,
      may have made a different finding.

Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super 2003) (internal citations

and quotations omitted).

      Generally, a purported father does not have a statutory right to have

his paternity determined in court, and he has no right to a trial on the issue

of paternity.   See In re Estate of Greenwood, 587 A.2d 749, 754

(Pa.Super. 1991) (“The statute ... provides a device affording both the

father and mother the right to acknowledge paternity. The statute does not

afford the father the right to come into court to have his paternity

determined.”); Minnich v. Rivera, 509 Pa. 588, 590, 506 A.2d 879, 880

(1986), aff’d, 483 U.S. 574, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987).

      “Under the doctrine of paternity by estoppel, a putative father who is

not a child’s biological father is estopped from challenging paternity after he

has held himself out as the child’s father or provided support.” Ellison v.

Lopez, 959 A.2d 395, 397–98 (Pa.Super. 2008); see also 23 Pa.C.S. §

5102(b)(2).


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      In paternity actions, estoppel is:

      merely the legal determination that because of 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 will the child’s mother
      who has participated in this conduct be permitted to sue a third
      party for support, claiming that the third party is the true father.
      As the Superior Court has observed, the doctrine of estoppel in
      paternity actions is aimed at achieving fairness as between the
      parents by holding them, both mother and father, to their prior
      conduct regarding the paternity of the child.

Doran, 820 A.2d at 1282–83.

      The relevant statute regarding acknowledging paternity provides, in

pertinent part:

      § 5103. Acknowledgment and claim of paternity

      (a) Acknowledgment of paternity.—The father of a child born
      to an unmarried woman may file with the Department of Public
      Welfare, on forms prescribed by the department, an
      acknowledgment of paternity of the child which shall include the
      consent of the mother of the child, supported by her witnessed
      statement subject to 18 Pa.C.S. § 4904 (relating to unsworn
      falsification to authorities). In such case, the father shall have all
      the rights and duties as to the child which he would have had if
      he had been married to the mother at the time of the birth of the
      child, and the child shall have all the rights and duties as to the
      father which the child would have had if the father had been
      married to the mother at the time of birth. The hospital or other
      person accepting an acknowledgment of paternity shall provide
      written and oral notice, which may be through the use of video
      or audio equipment, to the birth mother and birth father of the
      alternatives to, the legal consequences of and the rights and
      responsibilities that arise from, signing the acknowledgment.

                                      ***

       (d) Conclusive evidence.—Notwithstanding any other
      provision of law, an acknowledgment of paternity shall constitute
      conclusive evidence of paternity without further judicial

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     ratification in any action to establish support. The court shall
     give full faith and credit to an acknowledgment of paternity
     signed in another state according to its procedures.
                                   ***
     (g) Rescission.—

     (1) Notwithstanding any other provision of law, a signed,
     voluntary, witnessed acknowledgment of paternity subject to 18
     Pa.C.S. § 4904 shall be considered a legal finding of paternity,
     subject to the right of any signatory to rescind the
     acknowledgment within the earlier of the following:

           (i) sixty days; or

           (ii) the date of an administrative or judicial proceeding
           relating to the child, including, but not limited to, a
           domestic relations section conference or a proceeding to
           establish a support order in which the signatory is a party.

     (2)   After   the  expiration   of   the   60   days,     an
     acknowledgment of paternity may be challenged in court
     only on the basis of fraud, duress or material mistake of
     fact, which must be established by the challenger through
     clear and convincing evidence. An order for support shall not
     be suspended during the period of challenge except for good
     cause shown....

23 Pa.C.S. § 5103 (emphasis added).

     “When allegations of fraud arise in a paternity action, an estoppel

analysis must proceed in a different manner than it would without such

averments.”     Doran,    820   A.2d   at   1279   (quoting   McConnell   v.

Berkheimer, 781 A.2d 206, 211 (Pa. Super. 2001)). “[This Court will] not

allow the application of estoppel to punish the party who sought to do what

was righteous and reward the party who had perpetrated a fraud.” Glover

v. Severino, 946 A.2d 710, 714 (Pa. Super. 2008).        “Evidence of fraud

‘must be considered by the trial court in whether to apply paternity by

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estoppel.’” Doran, 820 A.2d at 1279 (quoting Sekol v. Delsantro, 763

A.2d 405, 410 (Pa. Super. 2000)).

     This Court has adopted the traditional elements of fraud established in

Pennsylvania:

     (1) a misrepresentation, (2) a fraudulent utterance thereof, (3)
     an intention by the maker that the recipient will thereby be
     induced to act, (4) justifiable reliance by the recipient upon the
     misrepresentation, and (5) damage to the recipient as the
     proximate result.

                                    ***

     Fraud is practiced when deception of another to his damage is
     brought about by a misrepresentation of fact or by silence when
     good faith required expression. Fraud comprises anything
     calculated to deceive, whether by single act or combination, or
     by suppression of truth, or suggestion of what is false, whether
     by direct falsehood or innuendo, by speech or silence, word of
     mouth, or look or gesture.

R.W.E. v. A.B.K., 961 A.2d 161, 167–68 (Pa.Super. 2008) (emphasis

deleted).

     Proof of fraud or misrepresentation precludes application of
     paternity by estoppel. Where ... there is no intact family unit to
     protect, the presumption of paternity does not apply. Whether
     the estoppel doctrine applies depends upon the particular facts
     of the case. Estoppel in paternity actions is based on the public
     policy that children should be secure in knowing who their
     parents are; if a person has acted as the parent and bonded with
     the child, the child should not be required to suffer the
     potentially damaging trauma that may come from being told that
     the father he has known all his life is not in fact his father.

Gebler v. Gatti, 895 A.2d 1, 3–4 (Pa. Super. 2006) (internal citations

omitted).



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        In this case, Father acknowledges that more than sixty days have

passed since he signed the AOP. Notwithstanding, Father argues that the

trial court erred in applying the doctrine of paternity by estoppel and in

doing so avers there was evidence of fraud on the record and that the

evidence did not establish it was in Child’s best interest to establish Father

as Child’s legal father. Father’s Brief, at 5. Specifically, Father claims that

while Mother informed him she had had sexual relations with another man

around the time of conception, she did not reveal this information until the

final trimester of the pregnancy, close to the time he signed the AOP. Id. at

8-10.    In addition, Father reasons that Mother continued to lead him to

believe there was a “chance” he was Child’s father, and this failure to

disclose “the true probabilities of paternity” to Father provided him with a

“strong reason” to believe he was the biological father. Id. at 10-12.

        Father testified that Mother told him when he signed the AOP that he

was the biological father of Child. N.T. 8/19/15, at 3. Father stated that he

was led to believe he was not the biological father of Child after Mother and

Father ended their relationship in January of 2015. Id. at 3-4. Father later

testified that while he and Mother were together, Mother told him she had

had a relationship with another person.     Id. at 8.   Father explained that

when Child was six months old, Father noticed features of Child’s physical

appearance to indicate that Child was not biologically his. Id. at 8-9. Yet,

Father stated that thereafter, he continued to engage in a father-child


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relationship with Child. Id. at 9. Moreover, Father testified that he did not

make an effort to challenge Child’s paternity when he noticed that Child

might not be his because Father was “still together” with Mother. Id. at 9:

      I wanted to be his father, you know. I love that child, and when
      we broke up, she made it clear that, you know, he wasn’t. And I
      did make an effort to get a paternity test, and she would not let
      me take [Child] because I just wanted to know for my own sake.

Id.   Father stated he last saw Child in April of 2015. Id. at 9-10.

      The trial court found:

            The parties were never married. [Child], born [in May of
      2013], is more than two years old. According to [Mother], she
      told [Father] while she was pregnant with [Child] that he may
      not be the father. She told him she slept with another person
      around the time of conception.       [Mother] testified, “I told
      [Father] everything. He knew the man’s name from the time I
      had him. That it was a possibility.”

            According to [Father], he and [Mother] were together from
      [Child]’s birth until they separated in January [of] 2015. He
      admitted [Mother] told him both before and after they separated
      he was not the father.

            Furthermore, [Father] submitted photographs of [Child],
      which showed [Child] is bi-racial, part white and part black.
      [Mother] and [Father] are white. [Father] admitted that within
      six months to a year of [C]hild’s life, it became “obvious” by
      [C]hild’s physical appearance that he was not the biological
      father of [C]hild. [Mother] testified when [C]hild was eight or
      nine months old, “when it was pretty apparent” [Father] was not
      the father, she gave [Father] “the chance to walk away.”

            Despite all of that, [Father] admitted he did not investigate
      the identity of the alleged biological father until August [of]
      2015, shortly before the hearing.

            [Father] also acknowledged that he maintained a
      father/son relationship with [C]hild from [C]hild’s birth until he
      and [Mother] separated. He said “I, You know, was his father, I

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      was in his everyday life, took care of him, fed him, bathed him,
      all that stuff as well as she did.” He also testified [C]hild
      identifies him as his father.

Trial Court Order, 10/21/15, 1-2.

      In considering whether there was any record evidence of fraud before

deciding to apply paternity by estoppel, the trial court found that Mother’s

testimony was credible and that Father was aware he might not be the

father of Child when he signed the AOP. Indeed, Father did not attempt to

rescind the AOP when he noticed biological difference between Father and

Child when Child was six months old. Moreover, Father held himself out to

be Child’s father until Father and Mother ended their relationship in January

of 2015.   Further, he did not allege that he was fraudulently induced into

signing the AOP until he was required to pay support and after Mother and

Father’s relationship ended. Thus, we find Father failed to rescind the AOP

within 60 days, and he failed to show fraud as a reason to rescind it past the

60-day period. The trial court’s findings of fact are supported by the record,

and there is no abuse of discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2016


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