Turek v. Hardy

458 A.2d 562, 312 Pa. Super. 158, 1983 Pa. Super. LEXIS 2761
CourtSuperior Court of Pennsylvania
DecidedMarch 25, 1983
Docket12
StatusPublished
Cited by45 cases

This text of 458 A.2d 562 (Turek v. Hardy) 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
Turek v. Hardy, 458 A.2d 562, 312 Pa. Super. 158, 1983 Pa. Super. LEXIS 2761 (Pa. Ct. App. 1983).

Opinions

BROSKY, Judge:

The sole issue before us in this paternity action is whether the lower court erred in ruling that the results of a Human Leukocyte Antigen (HLA) test could not be used to prove paternity. Because we conclude that such test results are admissible as some proof of paternity, we reverse and remand.

The record in this case discloses that prior to trial, appellee Hardy petitioned the court to order appellant Turek and her child to submit to blood tests in order to determine whether he could be excluded as the father. Such an order was entered on June 30, 1980.

On July 1, 1980, appellant, appellee and their attorneys signed a written stipulation that the

results of certain biochemical tests and blood grouping test (viz. HLA Test and Red Cell Test) to be performed at the University of Pittsburgh Paternity Testing Laboratory, shall be admissible at any trial of this matter without the necessity of calling any expert or custodian of records

At trial, appellant attempted to introduce blood test results and certain expert testimony, but an objection to this evidence was sustained. The jury trial resulted in a verdict [160]*160for appellee, Albert Hardy, and this appeal followed the denial of a motion for new trial.

It is clear that the admission or exclusion of evidence is within the sound discretion of the trial court and the exercise of such discretion will be reversed on appeal only for a clear abuse. Catina v. Maree, 272 Pa.Super. 247, 415 A.2d 413 (1980); Zadogna v. Hester, 255 Pa.Super. 517, 388 A.2d 1087 (1978).

The lower court explained in its opinion that its decision to exclude the proffered evidence was based on its belief that such evidence must be made admissible in the first instance by the Legislature.

The “Uniform Act on Blood Tests to Determine Paternity” 1 does permit the introduction of blood test results that exclude a defendant as a possible father and in fact provides that blood tests can serve as conclusive evidence of non-paternity. See 42 Pa.C.S.A. § 6136. The statute as enacted in Pennsylvania does not address the question of whether blood test results that show that a defendant is likely to be the father are admissible as proof of paternity. Such a provision was a part of the Uniform Act but was not enacted by our Legislature. We believe, however, that such results are admissible under the current state of the law.

Although the trial record itself is not clear as to the type of blood test which was at issue, in this case, the previously discussed stipulation and the opinion of the lower court indicate that appellant sought the introduction of the results of HLA blood tests which indicated a probability that appellee is the father of the child.

Unlike traditionally accepted blood tests which involve testing of the red blood cells, HLA, “Human Leukocyte Antigen” involves tissue typing of white cell blood groups. Prior to the advent of HLA testing, the results of blood tests were used solely to exclude those defendants whose blood tests indicate they could not be the father of the child [161]*161in question. However, HLA test results can be used to calculate the probability that a putative father is the actual father. Dr. Terasaki notes in his article, “Resolution by HLA Testing of 1,000 Paternity Cases Not Excluded By ABO Testing,” (1977-78), 16 J.Fam.L. 543, “With HLA testing, the probability of a non-excluded male being the actual father is usually over 90%.”

It seems clear that the testing procedure, which evolved from the tissue typing necessary for organ transplants, provides an enhanced ability to identify the father of a child. For discussion of the reliability of HLA testing, alone or in combination with other blood group tests, see the following articles. Williford, “The Use of Blood Tests in Actions to Determine Paternity,” (1980) 16 Wake Forest Law Review 591 (which explains the system’s advantages and “pitfalls”. For example, the author observes that the HLA test may not exclude a putative father who would be excluded by red cell tests, if the accused and real father are related; “Proving Paternity By Means of Serological Testing: Should It Be admitted As Evidence By The Courts?” (1981), Detroit College of Law Review 47; “Joint AMA-ABA Guidelines: Present States of Serologic Testing in Problems of Disputed Parentage” (1976) 10 Fam.L.Q. 247 (which advocates the combined use of HLA and red blood test for greatest reliability); Terasaki, supra.2

Our examination of the current literature and case law of other jurisdictions cited herein leads us to conclude that HLA testing has been found to be a reliable technique. We turn next to the question of whether such test results are relevant to a determination of paternity.

We explained in Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40, 47 (1981):

[162]*162Pennsylvania finds evidence relevant “when it tends to establish facts in issue” Leroi v. Civil Service Commission of City of Philadelphia, 34 Pa.Cmwlth. 190, 382 A.2d 1260 (1978), or when it “in come (sic) degree advances the inquiry and thus has probative value,” Bowers v. Garfield, 382 F.Supp. 503, aff. 503 F.2d 1398 (3rd Cir.1974).

Test results that indicate the likelihood that one is the father of a child certainly advance the inquiry as to that child’s paternity and are therefore of probative value. See also Hennepin City Welfare Bd. v. Ayers, Minn., 304 N.W.2d 879 (1981); Carlyon v. Weeks, 387 So.2d 465 (Fla. App.1980), in which cases the courts also concluded that HLA results are relevant to the issue of paternity.

In Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979), the California court concluded that the results of HLA testing are probative of the issue of paternity. The court applied a relevance test similar to that applicable in Pennsylvania.

In Cramer, the defendant had argued that even though such evidence might be found probative, it should be found inadmissible because California had adopted the “Uniform Act on Blood Tests to Determine Paternity” absent a provision that would have permitted the use of blood tests to prove paternity. Appellee in the present case similarly contends that the failure of our Legislature to include such a provision should render the evidence inadmissible.

The Cramer court noted that its blood test statute was enacted prior to the development of HLA and only shortly after the acceptance of the Landsteiner series (red blood cell tests). The court concluded that the Legislature’s reference to blood tests in enacting the statute referred to the Landsteiner series. Therefore, the court declined to consider the omission of the provision allowing affirmative use of blood tests, as rejection of affirmative use of HLA results.

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Bluebook (online)
458 A.2d 562, 312 Pa. Super. 158, 1983 Pa. Super. LEXIS 2761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turek-v-hardy-pasuperct-1983.