Circulated 02/28/2023 02:36 PM J-A19020-22
V.L.-P. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : S.R.D. : : Appellant : No. 477 MDA 2022
Appeal from the Order Entered February 18, 2022 In the Court of Common Pleas of Lebanon County Domestic Relations at No(s): 2020-5-0545
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
CONCURRING OPINION BY BOWES, J.:
I join my esteemed colleagues’ decision to vacate the order denying
Appellant’s petition for genetic testing. I write separately to highlight my
viewpoint that where, as here, there is no intact marriage to preserve through
the presumption of paternity and a father seeks to rescind his formal
acknowledgment of paternity pursuant to 23 Pa.C.S. § 5103(g)(2), based
upon an allegation of fraud, duress, or the mistake of material fact, the
threshold question should be whether a genetic relationship exists. Indeed,
insofar as genetic testing is dispositive of parentage, any allegation of
fraudulent inducement is relevant only if a genetic relationship is absent.
Thus, I believe the better practice is for trial courts to permit a party to
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A19020-22
scientifically refute the genetic relationship at the outset, and after that
preliminary matter is resolved, determine whether paternity by estoppel
applies under the particular facts and circumstances of that case.
Appellant sought to rescind his written acknowledgment of paternity
under § 5103(g)(2), which is outlined in the portion of the Domestic Relations
code relating to children and minors. The interrelationship between a
§ 5103(g)(2) rescission and the common law doctrine of paternity by estoppel
is best illustrated by the fact that the two principles require identical
considerations in determining the effect of fraud in the formation of the
parental relationship. For example, just as proof of fraud will defeat the
application of paternity by estoppel, the same facts would provide a basis to
rescind an acknowledgment of paternity pursuant to § 5103. Compare
R.W.E. v. A.B.K., 961 A.2d 161 (Pa.Super. 2008) (applying five-prong
approach to determine fraud in the context of rescinding acknowledgment of
paternity under § 5103(g) and Doran v. Doran, 820 A.2d 1279, 1283-84
(Pa.Super. 2003) (outlining identical “test for fraud” to determine whether to
apply paternity by estoppel).
Recognizing that the two concepts are coextensive, I also acknowledge
that the legal fiction embodied in paternity by estoppel is traditionally applied
regardless of science. See e.g. Fish v. Behers, 741 A.2d 721 (Pa.Super
1999) (noting estoppel is legal determination that precludes parent from
denying parentage regardless of true biological parentage); DeRosa v.
-2- J-A19020-22
Gordon, __ A.3d__, 2022 PA Super 198, *5 (filed November 22, 2022), 2022
WL 17099037 (quoting Fish, supra approvingly in sustaining trial court’s
determination that the doctrine did not bar paternity claim of likely biological
father who had been involved with child since birth). This perspective is also
reflected in our procedural rules governing paternity disputes in child support
cases, which permits a trial court to stay genetic testing until the applicability
of estoppel has been determined. See Pa.R.C.P. 1910.15(c) (“If either party
or the court raises the issue of estoppel or the issue of whether the
presumption of paternity is applicable, the court shall dispose promptly of the
issue and may stay the order for genetic testing until the issue is resolved.”).
Nevertheless, this reality does not mean that trial courts are constrained
to ignore biological truths in order to apply a legal fiction. Indeed, in upholding
the continuing efficacy of paternity by estoppel, our Supreme Court
recognized, “[a]bsent any overriding equities in favor of the putative father,
such as fraud, the law cannot permit a party to renounce even an assumed
duty of parentage when by doing so, the innocent child would be victimized.”
K.E.M., supra at 807 (emphasis added). It continued,
The legal fictions perpetuated through the years (including the proposition that genetic testing is irrelevant in certain paternity-related matters) retain their greatest force where there is truly an intact family attempting to defend itself against third- party intervention. In cases involving separation and divorce, we direct that the Uniform Act on Blood Tests to Determine Paternity is now to be applied on its terms insofar as it authorizes testing. At the very least, the identification of [the] biological father is a relevant fact for purposes of determining who should pay for the
-3- J-A19020-22
services of a guardian ad litem to vindicate [the child’s] best interests.9 A biological father can do at least this much.
_________________________________ 9 While at this time we do not hold that a guardian ad litem is
necessarily required in all cases, at this juncture in the present case, we believe an appointment is advisable.
Id. at 809–10 (internal citation and footnotes omitted).
Thus, the K.E.M. Court understood that the application of a legal fiction
to limit the relevancy of genetic testing retained its “greatest force where there
is truly an intact family attempting to defend itself against third-party
intervention.” Id. at 810 n.8. As it relates to invoking estoppel to circumvent
allegations of fraud, the K.E.M. Court reserved its decision, noting that since
the putative father did not assert that he was deluded into believing that he
was the birthfather, “the strongest case for ‘overriding equities’ [,such as
fraud,] is not present[.]” Id. at 808 n.7. Hence, while the K.E.M. Court’s
holding did not confront this precise issue, its rationale plainly supports the
notion that where, as here, there is neither a marriage to protect nor a third-
party intervenor, scientific advancements and the evolving perception of
family militate against the mechanical application of paternity by estoppel to
defeat a colorable allegation of fraud.
From my perspective, mindful of the accessibility, affordability, and
reliability of DNA tests, I believe that the flaws associated with permitting rote
assertions of estoppel to bar testing are particularly evident in the case at bar,
where there is neither a marriage or intervenor and Appellant made a genuine
claim that his acknowledgment of paternity was the result of Mother’s
-4- J-A19020-22
duplicity, dishonesty, and deceit. Even ignoring the results of the genetic
testing conducted by Ancestory.com, Appellant adduced sufficient evidence to
support his claim of fraud. He presented evidence that Mother engaged in
fraud by failing to notify him that he may not be the biological father or that
she had contracted chlamydia, a sexually transmitted disease, prior to the
child’s birth. Moreover, as succinctly summarized in the majority opinion,
Mother failed to disclose that she was previously engaged to the probable
biological father around the time of A.D.’s conception and had motive to deny
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Circulated 02/28/2023 02:36 PM J-A19020-22
V.L.-P. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : S.R.D. : : Appellant : No. 477 MDA 2022
Appeal from the Order Entered February 18, 2022 In the Court of Common Pleas of Lebanon County Domestic Relations at No(s): 2020-5-0545
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
CONCURRING OPINION BY BOWES, J.:
I join my esteemed colleagues’ decision to vacate the order denying
Appellant’s petition for genetic testing. I write separately to highlight my
viewpoint that where, as here, there is no intact marriage to preserve through
the presumption of paternity and a father seeks to rescind his formal
acknowledgment of paternity pursuant to 23 Pa.C.S. § 5103(g)(2), based
upon an allegation of fraud, duress, or the mistake of material fact, the
threshold question should be whether a genetic relationship exists. Indeed,
insofar as genetic testing is dispositive of parentage, any allegation of
fraudulent inducement is relevant only if a genetic relationship is absent.
Thus, I believe the better practice is for trial courts to permit a party to
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A19020-22
scientifically refute the genetic relationship at the outset, and after that
preliminary matter is resolved, determine whether paternity by estoppel
applies under the particular facts and circumstances of that case.
Appellant sought to rescind his written acknowledgment of paternity
under § 5103(g)(2), which is outlined in the portion of the Domestic Relations
code relating to children and minors. The interrelationship between a
§ 5103(g)(2) rescission and the common law doctrine of paternity by estoppel
is best illustrated by the fact that the two principles require identical
considerations in determining the effect of fraud in the formation of the
parental relationship. For example, just as proof of fraud will defeat the
application of paternity by estoppel, the same facts would provide a basis to
rescind an acknowledgment of paternity pursuant to § 5103. Compare
R.W.E. v. A.B.K., 961 A.2d 161 (Pa.Super. 2008) (applying five-prong
approach to determine fraud in the context of rescinding acknowledgment of
paternity under § 5103(g) and Doran v. Doran, 820 A.2d 1279, 1283-84
(Pa.Super. 2003) (outlining identical “test for fraud” to determine whether to
apply paternity by estoppel).
Recognizing that the two concepts are coextensive, I also acknowledge
that the legal fiction embodied in paternity by estoppel is traditionally applied
regardless of science. See e.g. Fish v. Behers, 741 A.2d 721 (Pa.Super
1999) (noting estoppel is legal determination that precludes parent from
denying parentage regardless of true biological parentage); DeRosa v.
-2- J-A19020-22
Gordon, __ A.3d__, 2022 PA Super 198, *5 (filed November 22, 2022), 2022
WL 17099037 (quoting Fish, supra approvingly in sustaining trial court’s
determination that the doctrine did not bar paternity claim of likely biological
father who had been involved with child since birth). This perspective is also
reflected in our procedural rules governing paternity disputes in child support
cases, which permits a trial court to stay genetic testing until the applicability
of estoppel has been determined. See Pa.R.C.P. 1910.15(c) (“If either party
or the court raises the issue of estoppel or the issue of whether the
presumption of paternity is applicable, the court shall dispose promptly of the
issue and may stay the order for genetic testing until the issue is resolved.”).
Nevertheless, this reality does not mean that trial courts are constrained
to ignore biological truths in order to apply a legal fiction. Indeed, in upholding
the continuing efficacy of paternity by estoppel, our Supreme Court
recognized, “[a]bsent any overriding equities in favor of the putative father,
such as fraud, the law cannot permit a party to renounce even an assumed
duty of parentage when by doing so, the innocent child would be victimized.”
K.E.M., supra at 807 (emphasis added). It continued,
The legal fictions perpetuated through the years (including the proposition that genetic testing is irrelevant in certain paternity-related matters) retain their greatest force where there is truly an intact family attempting to defend itself against third- party intervention. In cases involving separation and divorce, we direct that the Uniform Act on Blood Tests to Determine Paternity is now to be applied on its terms insofar as it authorizes testing. At the very least, the identification of [the] biological father is a relevant fact for purposes of determining who should pay for the
-3- J-A19020-22
services of a guardian ad litem to vindicate [the child’s] best interests.9 A biological father can do at least this much.
_________________________________ 9 While at this time we do not hold that a guardian ad litem is
necessarily required in all cases, at this juncture in the present case, we believe an appointment is advisable.
Id. at 809–10 (internal citation and footnotes omitted).
Thus, the K.E.M. Court understood that the application of a legal fiction
to limit the relevancy of genetic testing retained its “greatest force where there
is truly an intact family attempting to defend itself against third-party
intervention.” Id. at 810 n.8. As it relates to invoking estoppel to circumvent
allegations of fraud, the K.E.M. Court reserved its decision, noting that since
the putative father did not assert that he was deluded into believing that he
was the birthfather, “the strongest case for ‘overriding equities’ [,such as
fraud,] is not present[.]” Id. at 808 n.7. Hence, while the K.E.M. Court’s
holding did not confront this precise issue, its rationale plainly supports the
notion that where, as here, there is neither a marriage to protect nor a third-
party intervenor, scientific advancements and the evolving perception of
family militate against the mechanical application of paternity by estoppel to
defeat a colorable allegation of fraud.
From my perspective, mindful of the accessibility, affordability, and
reliability of DNA tests, I believe that the flaws associated with permitting rote
assertions of estoppel to bar testing are particularly evident in the case at bar,
where there is neither a marriage or intervenor and Appellant made a genuine
claim that his acknowledgment of paternity was the result of Mother’s
-4- J-A19020-22
duplicity, dishonesty, and deceit. Even ignoring the results of the genetic
testing conducted by Ancestory.com, Appellant adduced sufficient evidence to
support his claim of fraud. He presented evidence that Mother engaged in
fraud by failing to notify him that he may not be the biological father or that
she had contracted chlamydia, a sexually transmitted disease, prior to the
child’s birth. Moreover, as succinctly summarized in the majority opinion,
Mother failed to disclose that she was previously engaged to the probable
biological father around the time of A.D.’s conception and had motive to deny
her relationship with that person due to his status as a convicted sexual
offender. See Majority Opinion at 31-32. As my learned colleagues accurately
observe, “In the absence of genetic testing or an admission by Mother to
engaging in sexual relations with someone else around the time of [A.D.’s]
conception, . . . Appellant will be unable to prove his fraud claim.” Id. at 32.
Insofar as genetic testing is unquestionably the preeminent means of
determining a child’s parentage, giving genetic testing sequential primacy
over the resolution of an estoppel claim will prevent this inequitable dichotomy
in future cases.
Accordingly, for all of the foregoing reasons, I believe that the General
Assembly or our Supreme Court1 should revisit the legal fiction created by
paternity by estoppel in light of the advancements in testing and our
1 For example, the Supreme Court may elect to revise Pa.R.C.P. 1910.15(c)
so it no longer authorizes a trial court to stay genetic testing pending the resolution of an estoppel claim in child support litigation.
-5- J-A19020-22
contemporary perspective of family and fashion a flexible approach that
affords trial courts both the ability to order genetic testing at the outset of
these cases and the discretion to weigh scientific evidence of paternity in line
with § 5104(c) and (g) of the Uniform Act on Blood Test to Determine
Paternity, which the High Court found to authorize genetic testing in paternity
cases “involving separation and divorce,” i.e., in the absence of an intact
marriage. Id. at 809-810.
-6-