H.Z. v. M.B.

204 A.3d 419
CourtSuperior Court of Pennsylvania
DecidedFebruary 8, 2019
DocketNo. 1809 EDA 2018
StatusPublished
Cited by3 cases

This text of 204 A.3d 419 (H.Z. v. M.B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H.Z. v. M.B., 204 A.3d 419 (Pa. Ct. App. 2019).

Opinion

OPINION BY STABILE, J.:

M.B. appeals from the order entered March 16, 2018, in the Court of Common Pleas of Montgomery County, which found that he is the father of J.Z. ("Child"), a male born in April 2005 to H.Z. ("Mother"). After review, we vacate and remand with instructions.

This matter has a lengthy and convoluted procedural history. M.B. and Mother are former coworkers. On March 3, 2005, shortly before Child's birth, Mother filed a request for paternity and child support in New York, where both parties resided at the time, alleging that M.B. was Child's father. The parties and Child underwent genetic testing, which excluded M.B. The parties entered into a stipulation on March 28, 2006, providing that Mother would discontinue her paternity and child support actions against M.B. with prejudice.

These events, however, did not end Mother's attempts to prove M.B.'s paternity. In approximately December 2008, Mother retained the services of a private investigation firm to obtain a sample of M.B.'s DNA. Apparently, a private investigator followed M.B. to a Starbucks, where he retrieved M.B.'s discarded coffee cup from a trashcan and submitted it for genetic testing. This so-called "Starbucks test" indicated a probability of paternity of over ninety-nine percent. Accordingly, on November 18, 2009, Mother began a second paternity and child support action against M.B. in New Jersey, where she and Child had since relocated. Because New Jersey lacked personal jurisdiction over M.B., who had relocated to Pennsylvania, the parties entered into another stipulation on March 8, 2010, dismissing Mother's claims.

*422On May 17, 2010, Mother filed a third request for child support, this time in Montgomery County, Pennsylvania. M.B. responded by filing an emergency motion to dismiss/preliminary objections and stay of genetic testing on July 7, 2010. M.B. argued that, pursuant to the doctrine of res judicata , the trial court could not compel him to submit to an additional paternity test because Mother discontinued her paternity and child support claims against him in New York with prejudice. On August 3, 2010, Mother filed an answer asserting that the doctrine of res judicata did not apply.

Curiously, a hearing on this issue did not take place for nearly another five years, until June 10, 2015.1 ,2 Mother testified that she did not continue to pursue the matter because of financial limitations, but that she reached a fixed fee agreement with her attorney that allowed her to resume litigation after receiving notice that the case was at risk of dismissal due to inactivity. N.T., 6/10/15, at 48-51. On August 10, 2015, the trial court entered an order directing M.B. to submit to genetic testing. M.B. timely appealed to this Court, arguing once again that the doctrine of res judicata barred additional testing, among other things.3 A prior panel of this Court affirmed on June 28, 2016, finding that M.B. and Mother discontinued the New York proceeding in violation of New York law and that the discontinuance did not bar Mother from filing the subsequent proceeding in Pennsylvania. H.Z. v. M.B. , 153 A.3d 1120 (Pa. Super. 2016) (unpublished memorandum).

On July 28, 2016, the parties and Child appeared at the Montgomery County Domestic Relations Office and submitted to genetic testing via buccal swab. However, because M.B.'s DNA sample was insufficient for testing, the parties and Child appeared again on August 30, 2016, and submitted to further testing. Despite Mother's protests, this consisted of only an additional buccal swab.4 Like the previous paternity test in New York, the Montgomery County test excluded M.B. as Child's father.

Upon receiving the results of the Montgomery County test, counsel for M.B. wrote a letter to the trial court requesting that it dismiss the proceeding with prejudice.5 On September 16, 2016, Mother filed a motion seeking an order denying M.B.'s request for dismissal. She further requested additional genetic testing in the form of buccal swab, blood, and hair follicle testing, and discovery as to any records relating to the Montgomery County test. Mother alleged irregularities in the collection of M.B.'s DNA samples. She also averred that the genetic profiles for M.B. listed in the New York, Montgomery County, and Starbucks test reports differed from one *423another, meaning that the DNA samples used in those tests could not have come from the same person. M.B. filed an answer on October 18, 2016, including counterclaims requesting that the court direct Mother to remove from the record certain exhibits attached to her motion, including notes and a report prepared by her proffered expert in DNA testing procedures. M.B. also requested that the court sanction Mother for continuing to reference the Starbucks test and award him counsel fees. Mother filed an answer on November 4, 2016, along with new matter supplementing her initial motion. On December 9, 2016, M.B. filed a motion to strike Mother's new matter, arguing that Mother's attempt to supplement her initial motion was a violation of the Pennsylvania Rules of Civil Procedure. In response to M.B.'s motion to strike, on December 21, 2016, Mother filed a praecipe to withdraw her new matter, as well as an amended version of her initial motion. M.B. then filed an amended motion to strike on January 17, 2017, maintaining that Mother was continuing to make improper references to the expert notes and report, as well as the Starbucks test. Mother filed an answer to M.B.'s amended motion to strike on February 6, 2017.

The trial court commenced a hearing on December 15, 2017.6 The court first heard the testimony of Mother, who spoke at length concerning the July 28, 2016 and August 30, 2016 buccal swab testing. N.T., 12/25/17, at 56-69. Mother then presented the testimony of Montgomery County Domestic Relations Office intake coordinator, and backup paternity coordinator, Jessica Tomaselli, who conducted the buccal swab testing on July 28, 2016, and the testimony of paternity coordinator, Shannon King, who conducted the testing on August 30, 2016. The witnesses testified concerning the procedures they used to conduct the testing. Id. at 88-97, 106-09, 137-40, 144-47, 154-56. Ms. Tomaselli stated that she had conducted over three hundred collections of DNA samples in her career, while Ms. King stated that she had conducted thousands of collections of samples. Id. at 99, 149. Notably, both witnesses testified that never before had a DNA sample they collected been insufficient for testing. Id. at 112, 135, 146-47. Finally, Mother presented the testimony of Marshall Schreibstein, Esquire, whom she retained to observe the August 30, 2016 testing. Id. at 114-24.

Next, M.B. presented the testimony of Debra Davis, Ph.D., lab director at DNA Diagnostics Center, via telephone. DNA Diagnostics Center analyzed the DNA samples collected by Ms. Tomaselli and Ms.

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Bluebook (online)
204 A.3d 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hz-v-mb-pasuperct-2019.