J. A15015/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

C.H.C.,                                  :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :          No. 3699 EDA 2015
                                         :
C.G.C.-F.                                :


             Appeal from the Order Entered November 23, 2015,
            in the Court of Common Pleas of Philadelphia County
                Domestic Relations Division at No. 008901864


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 20, 2016

      C.H.C. (“Father”) appeals from the order entered November 23, 2015,

in the Court of Common Pleas of Philadelphia County, Domestic Relations

Division, denying his petition to set aside paternity of the subject child, C.C.

(“Child”), born in September of 1984.1 After review, we affirm.

      On September 1, 2015, Father filed a petition to set aside paternity,

arguing that he was drunk and under duress at the time he signed the birth

certificate for Child, now 31 years old.2    (Petition to set aside paternity,

9/1/15.) Father averred that he not only made the court aware of this on


1
  Child’s mother, C.G.C.-F. (“Mother”), while a party, failed to file a brief in
connection with Father’s instant appeal and, as a result, was precluded from
oral argument.
2
  Father appears to be arguing that he can still pursue this case because of a
fraud perpetrated on him by Mother at Child’s birth.
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several occasions, but previously made a request during the pendency of the

custody matter before the Honorable Steven Levin for a paternity test, which

was denied. (Id.) Father further indicates appearing subsequently before

two other judges who also denied requests for paternity testing. (Id.)

        Of note, a review of the record reveals that, in 2005, Father previously

filed a petition for modification of an existing support order, requesting to

remit all arrears, as well as a petition to contest/vacate order of paternity.

Both petitions were denied by order dated July 12, 2005.3 (Order, 1/12/16.)

        The trial court held a hearing on Father’s petition to set aside paternity

on November 23, 2015.           At the hearing, counsel for Father at the time

presented argument on Father’s behalf.4 Counsel asserted that Father was

informed in 1987 that Child was not his. (Notes of testimony, 11/23/15 at

5.)    Father requested a paternity test, which was denied by Judge Levin. 5



3
  As there was no signed copy of the July 12, 2005 order in the court record, an
order dated January 12, 2016 memorialized this prior order. (Order, 1/12/16.)
4
 Only argument was presented at the November 23rd hearing. No testimony
was taken and/or offered. (Notes of testimony, 11/23/15 at 3-7.)
5
    As indicated by the trial court:

               Counsel had no copy of the order of Judge Levin, nor
               any copy of the notes of testimony; nor has any copy
               of such an order been located in the record retrieved
               from the archives. Any such matter before Judge Levin
               would have occurred in the 1990s, as no entries in the
               archived court record show any involvement of
               Judge Levin after 1994.

Trial court opinion, 1/14/16 at 2 (footnote omitted).


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(Id.) However, as the law has now changed, and there is no intact family to

protect, counsel argued the request for a paternity test was now proper.

(Id.) As counsel stated,

              He had a conversation with the biological father and
              he was told at that time that [Child] was not his. He
              did ask for a paternity test from Judge Levin, but[,]
              at that time[,] the law was such that there was
              paternity by estoppel and he was prevented from
              getting a test.[6] Fortunately, the law is changed
              now and there is no intact family to protect[,] so the
              request now for a paternity test, I believe, is proper.

Id.

        By order dated November 23, 2015, the trial court denied Father’s

petition on the bases of lack of jurisdiction, res judicata, and estoppel.

(Order, 11/23/15.) On December 15, 2015, Father filed a notice of appeal,

pro se.7      Father did not file a contemporaneous concise statement of

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

(b), as required.8     However, on December 17, 2015, this court ordered




6
  As noted by the trial court, “Presumably, when counsel argued that
Judge Levin denied the request on the basis of estoppel, counsel was
referring to the presumption of paternity of a child born during a marriage.”
(Id.)
7
    Counsel subsequently entered his appearance on behalf of Father.
8
 In children’s fast track matters, such as this matter, a concise statement of
errors complained of on appeal is required to be submitted with the notice of
appeal. Pa.R.A.P. 1925(a)(2)(i).


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Father to file a statement no later than December 28, 2015.             Father

complied, and filed a statement on December 23, 2015.9

     We review the trial court’s order with regard to paternity for an abuse

of discretion or error of law.     Vargo v. Schwartz, 940 A.2d 459, 462

(Pa.Super. 2007). See also Barr v. Bartolo, 927 A.2d 635, 639 (Pa.Super.

2007). With regard to this standard, we have stated:

           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 [for reversal] that we, if
           sitting as a trial court, may have made a different
           finding.

Vargo, 940 A.2d at 462 (citation omitted).

     We note at the outset in the instant matter, the trial court states in its

opinion   submitted    pursuant     to   Pennsylvania   Rule    of    Appellate

Procedure 1925(a)(1) as follows:

           [Father’s] Motion to Set Aside Paternity is barred by
           the statute of limitations, depriving the court of
           jurisdiction over same, as well as by the doctrine of
           res judicata. The doctrine of estoppel would also

9
  As Father complied with this court’s order, we do not penalize him. See In
re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009) (failure to file a Rule 1925(b)
statement concurrently with a children’s fast track appeal is considered a
defective notice of appeal, to be disposed of on a case-by-case basis, and
will not be dismissed since failure to file the statement is a violation of a
procedural rule); cf. Mudge v. Mudge, 6 A.3d 1031 (Pa.Super. 2011), and
J.M.R. v. J.M., 1 A.3d 902 (Pa.Super. 2010) (failure to file a Rule 1925(b)
statement of errors complained of on appeal, when ordered by the Superior
Court, will result in a waiver of all issues on appeal).


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           apply for Appellant’s having waited so long to file this
           action despite reportedly doubting his paternity, but
           the clear effect of res judicata and lack of jurisdiction
           obviate the need for discussion of that issue. Hence,
           the order of the trial court merits affirmation on
           appeal.

Id. at 5. Upon review, we are constrained to agree.

     The analysis required for a legal determination of paternity has been

summarized as follows:

           [F]irst, one considers whether the presumption of
           paternity applies to a particular case. If it does, one
           then considers whether the presumption has been
           rebutted.     Second, if the presumption has been
           rebutted or is inapplicable, one then questions
           whether estoppel applies. Estoppel may bar either a
           plaintiff from making the claim or a defendant from
           denying paternity.     If the presumption has been
           rebutted or does not apply, and if the facts of the
           case include estoppel evidence, such evidence must
           be considered. If the trier of fact finds that one or
           both of the parties are estopped, no blood tests will
           be ordered.

Brinkley v. King, 701 A.2d 176, 180 (Pa. 1997). See also N.C. v. M.H.,

923 A.2d 499, 502-503 (Pa.Super. 2007); Fish v. Behers, 741 A.2d 721,

723 (Pa. 1999); Strauser v. Stahr, 726 A.2d 1052, 1055 (Pa. 1999).

     Under the law of presumptive paternity, “[G]enerally, a child conceived

or born during the marriage is presumed to be the child of the marriage; this

presumption    is   one   of   the   strongest   presumptions   of   the   law   of

Pennsylvania; and the presumption may be overcome by clear and

convincing evidence. . . .” Brinkley, 701 A.2d at 179. This presumption,

however, applies only where the underlying policy of the presumption, i.e.,


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to preserve marriages, would be advanced by its application.          Id. at 181.

See also Fish, 741 A.2d at 723; Strauser, 726 A.2d at 1055; B.S. v. T.M.,

782 A.2d 1031, 1035 n.3 (Pa.Super. 2001).

      Turning to paternity by estoppel, this doctrine has been defined as

follows:

            Estoppel in paternity actions 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 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.”

Freedman v. McCandless, 654 A.2d 529, 532-533 (Pa. 1995) (citation

omitted).   See also Doran v. Doran, 820 A.2d 1279, 1283 (Pa.Super.

2003). As was explained, paternity by estoppel:

            is based on the public policy that children should be
            secure in knowing who their parents are. If a certain
            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.

Brinkley, 701 A.2d at 180. This doctrine has been narrowed to apply “only

where it can be shown, on a developed record, that it is the best interests of

the involved child.” K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa. 2012).


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      However, importantly, the doctrine of res judicata operates to

preclude a future suit between identical parties on an identical claim after a

final judgment has been rendered on the merits.       Holz v. Holz, 850 A.2d

751, 757 (Pa.Super. 2004). See also Dempsey v. Cessna Aircraft Co.,

653 A.2d 679 (Pa.Super. 1995) (en banc).          Moreover, the principles of

res judicata are applicable to paternity.      Scott v. Mershon, 657 A.2d

1304, 1306 (Pa.Super. 1995).

            The doctrine of res judicata holds that “[a] final valid
            judgment upon the merits by a court of competent
            jurisdiction bars any future suit between the same
            parties or their privies on the same cause of action.”

            ....

            Application of the doctrine of res judicata requires
            that the two actions possess the following common
            elements:     (1) identity of the thing sued upon;
            (2) identity of the cause of action; (3) identity of the
            parties; (4) identity of the capacity of the parties.

Id. at 1306 (citations omitted).

      Therefore, in the case at bar, we need not even complete our legal

analysis as to paternity, nor do we address the trial court’s assessment

regarding the statute of limitations.    Father previously filed a petition to

contest/vacate paternity, in the context of the same support matter to which

he and Mother are both parties, notably after he was aware of the

allegations that he was not the biological father of Child, which was denied

by order dated July 12, 2005.      Father now appeals from the denial of yet

another petition to set aside paternity in the context of the exact same


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support action. As such, while we appreciate Father’s desire for knowledge

regarding Child’s paternity, Father’s claim is barred by res judicata.10

        Accordingly, based on the foregoing analysis, we affirm the trial court’s

order denying Father’s petition to set aside paternity.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




10
     We note Father is not foreclosed from pursuing Child’s paternity privately.


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